Grinberg: Sudden and Extraordinary Proven by Applicant's 12 Years of Experience

Thursday, February 16, 2017 | 1

Your humble blogger hopes you had a wonderful Valentine's Day. I used to be a real Valentine's Day Grinch, but then I invested heavily in the flower cartels, the greeting card mob and the chocolate teamsters, and now I’m all for it.

My favorite highlight from Tuesday? The Walter Sobcheck Valentine's rhymes (many thanks to Mr. KC). If you’re a fan of "The Big Lebowski," take a look at #SobcheckValentines for a good chuckle. For a bad chuckle, however, please proceed with this post.

Today’s post is about a recent panel decision, Guzman v. Carmel Valley Construction, SCIF.  The Workers' Compensation Appeals Board did not add much in denying defendant’s petition for reconsideration, but, fortunately for us all, your humble blogger has acquired the report and recommendation that lays out a lot of the facts and law.

The issue at hand was a crazy one — I mean it: Applicant was alleging a psyche injury, and defendant had raised the six-month employment rule of Labor Code Section 3208.3(d). Although it appears uncontested that applicant was employed for a period shorter than six months, applicant alleged the mechanism of injury was sudden and extraordinary: While operating a soil compactor, applicant hit a rock, causing the soil compactor to fly up in the air and to land on applicant.

Applicant’s testimony was to the effect that in his 12 years of construction laborer work, he had used a soil compactor once per week, and he had never sustained an injury in those 12 years related to the soil compactor. In fact, he subjectively never anticipated any risk of injury with a soil compactor. The workers' compensation judge found that applicant’s injury was sustained as part of a sudden and extraordinary employment condition.

Because defendant offered no evidence of similar evince happening, let alone being commonplace, the WCJ relied on the uncontroverted testimony of applicant that he had never heard of such a thing happening in his 12 years in the industry.

This seems like a really good opportunity for the employer — the actual, insured employer — to assist. The employer likely has several very seasoned managers and veterans in the industry who could advise on this point, and probably reference prior cases involving the Occupational Safety and Health Administration or the WCAB, even if out of California, to provide examples that these things do happen.

On the other hand, perhaps there really aren’t a lot of incidents out there. Perhaps the safety manual for the soil compactor doesn’t cover this possibility.

Then, maybe, this really is an extraordinary event.

Gregory Grinberg is workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.