Alves: The Six-Month Rule

Thursday, November 30, 2017 | 0

This article addresses the infamous six-month rule, what exactly the rule is, how far it can be taken and how to stop it from being taken too far. It is not the purpose of this article to delve into whether, and to what extent, a psyche claim can still be alleged post-January 2013.

Farai M. Alves

What exactly is the rule?

According to California Labor Code Section 3208.3(d), “no compensation shall be paid … for a psychiatric injury related to a claim against an employer unless the employee has been employed by that employer for at least six months.”

Pardon me if I am stating the obvious, but I should add that the rule requiring at least six months of employment applies to both compensable consequence psyche claims and stand-alone psyche claims.

So, what does this mean?

Here it is in a nutshell:

• An injured worker cannot claim an industrial psychiatric injury if he or she has worked less than six months for the employer in question unless a certain exception is met. More on that exception to follow.
• Second, what counts is the length of time worked, rather than the length of employment. See Wal-Mart Stores, Inc. v. WCAB (Garcia) (2003), in which applicant’s compensable consequence psyche claim was barred despite the argument that while she did not return to work after the injury, she had not been terminated until well after the six months had run. The Court of Appeal found that there had to be actual employment or service for the six months, though the court noted such work did not need to be continuous.
• Third, the required six months of employment need not be continuous, nor must it have to predate the injury. Case law supports that the minimum six-month employment requirement is met where employment before and after the subject injury totals at least six months. The Garcia case has been interpreted to mean that the six months of employment does not have to precede the date of injury and that the applicant has only to prove a cumulative total in excess of six months.
• Fourth, when it comes to calculating actual time worked, courts have liberally construed the issue in favor of injured workers. This probably requires no further explanation or discussion.
• Finally, the six-month rule applies even absent a timely denial. Good to know! It is established by case law that any assertion of an untimely or invalid denial is superseded by Labor Code Section 3208.3(d). See James vs. WCAB 62 CCC 757 (1997), in which the Court of Appeals held that Labor Code Section 3208.3(d) could be used to bar a psychiatric claim even in an instance where a claim was not timely denied.

And now for the exception to the six-month rule

The exception to the six-month rule, tucked into Labor Code Section 3208.3(d), provides that the requirement for at least six months of employment “shall not apply if the psychiatric injury is caused by a sudden and extraordinary employment condition.”

Does this mean any and every injured worker can try to get around the six-month rule by claiming his or her injury was sudden and extraordinary? Not at all.

For those not already familiar with it, allow me to introduce the Dreher case, a wonderfully common-sense decision by the 1st Appellate District Court of Appeal (Travelers Casualty and Surety Co v. WCAB (Dreher, 2016 Cal. App. LEXIS 321)).

Applicant sustained an injury resulting from a slip and fall on a wet concrete walkway. The Court of Appeal held that this did not constitute a sudden and extraordinary employment event. 

The case provided the following guidance in deciding the issue:

• The mere fact the injury was accidental does not meet the statutory exception. If the argument were made that an accidental injury constitutes a "sudden and extraordinary employment condition," we would reject it. For one thing, such an interpretation would mean that psychological injuries resulting from accidents would not be subject to the six-month rule, but such injuries arising from cumulative physical injury would be governed by that limitation. This distinction would make no sense, and we are reluctant to attribute irrational intentions to the Legislature.

To determine otherwise would mean that just about every serious specific injury leading to a psyche claim could arguably be both sudden and extraordinary, and would not be subject to the six-month rule. This would create a situation in which the exception would swallow the rule.

• The mere unexpectedly catastrophic nature of an injury does not equate to "extraordinary." The Court of Appeals in Dreher opined: "... although Dreher’s injury was more serious than might be expected, it did not constitute, nor was it caused by, a sudden and extraordinary employment event within the meaning of section 3208.3, subdivision (d). The evidence showed that Dreher routinely walked between buildings on concrete walkways at the work site and that he slipped and fell while walking on rain-slicked pavement."

The burden is on the injured worker to prove a sudden and extraordinary condition, and mere surprise is not sufficient.

In Dreher, the injured worker’s testimony that he was “surprised” by the slick surface did not demonstrate that his injury was caused by an uncommon, unusual or totally unexpected event.

What does it take to establish an exception?

A violent act will almost certainly overcome the rule. A number of cases on this issue have defined a “violent act” for purposes of a sudden and extraordinary work condition as “an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening.” 

Case law has allowed exceptions to the six-month rule in the following instances:

• Where the applicant was injured in a willful workplace assault (Shaida Raiszadeh v. County of Riverside, 2017 Cal. Wrk. Comp. P.D. LEXIS 225).
• Where the applicant suffered an injury resulting from a violent act that was characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening (Jesus Torres v. Greenbrae Management, State Compensation Insurance Fund, 2017 Cal. Wrk. Comp. P.D. LEXIS 230).

What else is there to say?

There are a lot of nuances, opinions and cases on this subject. However, I have to stop somewhere, and for now, I’ll leave you with the above.

Farai M. Alves is a senior partner based at Bradford & Barthel’s Oakland location. This entry from Bradford & Barthel's blog appears with permission.