Summer Vacation

Tuesday, August 24, 2010 | 0

By Mullen & Filippi

Summer is the traditional time for vacations. Vacations help us relax and rejuvenate, so that we can approach our work activities with a fresh outlook. Even when we can’t get away, looking at things from a different perspective can sometimes achieve the same result, and that is what this edition of the Bulletin aims to do.

Watching a Performance. Depositions, while useful, are not usually considered exciting or entertaining to watch. However, it is sometimes helpful for an employer representative to attend the deposition of an injured worker, observe the testimony, and confer with the defense attorney taking the deposition about any questionable testimony. To maximize the benefit of the employer representative’s presence, it is important to choose someone, like the employee’s supervisor, who can provide a useful perspective on the employee’s testimony. A recent Workers' Compensation Appeals Board decision confirms the defendant’s right to have its chosen representative attend a deposition.

The case, Padilla v. Los Angeles Metropolitan Transportation Authority, involved a bus driver who claimed orthopedic and psychiatric injuries when the brakes failed on his bus and the bus ran into a pole. The applicant’s deposition was set, and defendant’s assistant transportation manager attended the deposition.

At the deposition, the applicant refused to answer questions about his medical history, psychiatric history or medical condition in her presence, and sought a protective order. Applicant conceded that it would be acceptable to have a claims adjuster or human resources manager attend the deposition, but not his supervisor. The judge then granted a protective order prohibiting applicant’s supervisor from attending the deposition.

However, on Petition for Removal, the WCAB overturned the judge’s decision. The WCAB held that a protective order is only appropriate to protect the deponent from unwarranted annoyance, embarrassment or oppression, or undue burden or expense, and applicant did not show that a protective order was needed in this case. Although applicant did not claim that having his supervisor present at the deposition would violate his privacy, the WCAB noted that he had waived any privacy related to his claimed injuries by filing the claim. Also noting that Labor Code section 3762 prohibits an insurer or third party administrator from disclosing medical evidence about a claim to the employer, the Board held that this did not apply to information disclosed by the applicant in his deposition testimony. The Board also cited to case law holding that a protective order cannot be used to prevent a party from attending a deposition.

While it is usually not necessary for an employer representative to attend an injured worker’s deposition, we can envision circumstances when having the employee’s supervisor at the deposition could be very useful, such as, for example, when there is a serious concern about the injured worker’s veracity. This WCAB decision confirms that an employer defending a claim has the right to have its chosen representative attend the deposition and observe the applicant’s performance.

Extraordinary Events?  When riding a thrill ride at an amusement park, sudden changes that scare you are part of the fun. The same is not true for sudden, scary events that happen at work. However, when a worker experiencing such an event has worked for the employer for less than six months, whether the worker will receive workers’ compensation benefits for psychiatric injury depends on whether the event was “sudden and extraordinary”, as that term is legally defined. While it is not all that difficult to establish an event to be “sudden”, determining whether it is “extraordinary” is another matter. Two recent decisions by the 1st District Court of Appeal, with opposite results, provide insight into how to determine whether an admittedly sudden event that allegedly causes psychiatric injury is also “extraordinary”.

On June 25, the 1st DCA decided Campos v. WCAB. In that case, a tree cutter was suspended half way up an eighty foot tall tree that he was cutting when the trunk of the tree fell, hitting him in the chest and causing physical and psychiatric injury. Because he had been employed for less than six months, his claim for psychiatric injury benefits was dependent on establishing that the incident was “sudden and extraordinary.”

To support his claim, the applicant provided evidence that he had been cutting trees for a long time, had never seen an incident like this happen before, and did not expect it to happen to him. The defendant did not provide any evidence about prior similar incidents, apparently relying only on an argument that an incident like this was an inherent risk of a tree cutter’s job.

The WCJ, apparently relying on applicant’s evidence, found this to be a sudden and extraordinary event. On reconsideration, the WCAB reversed, concluding that this could not be an extraordinary event because it was “one of the obvious hazards of the job.” However, on appeal, the Court of Appeal overruled the WCAB, finding that its decision was not supported by substantial evidence. The Court stated that in the absence of evidence to support the WCAB’s statement that this was an obvious hazard, the finding could not stand.

On July 2, the 1st DCA denied review to a WCAB decision which had found that a falling box landing on a retail supervisor’s head was not a “sudden and extraordinary” event entitling him to benefits for psychiatric injury. In this case, Ott v. Kohl’s Department Store, et al., a store supervisor was injured when a stack of boxes in the shipping and receiving area of the store fell over and hit him.

Similar to Mr. Campos, Mr. Ott testified that this had never happened to him before, and he was never warned that boxes could fall when he was working. However, unlike in Campos, in this case the defendant put on evidence from a store manager that, although the employer tries to maintain a safe workplace, accidents happen, and boxes do fall. The manager testified to numerous prior incidents where she had seen employees drop boxes and seen boxes fall from various surfaces, although these incidents did not usually result in injury.

Relying on this evidence, the WCAB concluded that, although “sudden”, an incident involving a stack of boxes falling in the shipping and receiving area of the store was not an “extraordinary” event. Thus, the applicant was not entitled to psychiatric injury benefits.

On an amusement park ride, you may not know when the next twist or turn will be, but the fact that there will be one is no surprise. These cases teach us that to be an “extraordinary” event supporting a psychiatric injury claim, the event causing the injury has to be so unusual that the applicant could not have foreseen that it would occur. Also, these decisions demonstrate that if the defendant is going to refute the applicant’s claim that the event was completely unexpected, the defendant has to put on some evidence. Claiming that the event was an obvious hazard of the job is not going to be enough.

The Purpose of Travel. Summer is a great time to travel, and unfortunately, accidents sometimes happen while traveling. Despite the general rule that you cannot get workers’ compensation benefits for non-work related travel, people sometimes still try. We discuss here two recent cases involving such claims, both of which were unsuccessful, and both of which have been submitted to the Supreme Court for review

On July 28, the Supreme Court denied review of the WCAB’s decision in Choi v. Union Lee Construction, Inc., et al. In that case, a construction supervisor sought benefits for an injury sustained in a motor vehicle accident while driving home from a work site.

The applicant’s job included supervising construction at 99 Cent Stores in California for his employer. On the day of injury, he had started his work day in Sacramento, then stopped in Bakersfield, and then drove a company vehicle to a 99 Cent Store in Los Angeles. He then drove home in his own vehicle, and was injured on the way home.

The injured worker acknowledged that, normally, injuries that occur while driving to and from work are not compensable pursuant to the “going and coming rule”. However, he claimed the “special mission” exception to the rule applied to make his injury compensable.

The WCAB found that if he had been injured during the course of his work related travel, his injury would have been compensable. However, since it happened after he had left the last job site and was driving to his home in Los Angeles, the going and coming rule barred his claim. On reconsideration, applicant asserted that another exception, the commercial traveler exception, should apply. However, since that claim had not been raised at the trial level, the WCAB found it had been waived.

On July 26, another applicant petitioned the Supreme Court for review of a WCAB decision denying benefits. In this case, the WCAB found the applicant was not entitled to benefits because of a “major deviation from a special mission exception to the going and coming rule.” While the decision in this case is not yet final, it involves a claim against Disneyland, a common summer vacation destination, and therefore seemed particularly relevant to this month’s theme.
In this case,

Singer v. Disneyland, et al., the applicant had performed the role of Mickey Mouse for many years, and suffered an admitted cumulative trauma injury to her neck and upper extremity. Her employer invited her to a service award dinner at the Disneyland Hotel to receive an award for her long tenure. She believed she was expected to attend the dinner.

At the dinner, she drank wine, amount unknown. She then went to a nightclub where another Disney employee was performing, where she stayed for a brief period and had another drink. She then drove to a friend’s house, “where additional alcohol may have been consumed.” Her friend invited her to stay the night. She refused and, while attempting to drive home, she fell asleep behind the wheel and was involved in a single car accident.

She claimed injury sustained in the accident was compensable based on the special mission exception to the going and coming rule. The WCAB affirmed a WCJ’s finding at trial that the injury was not compensable because, even though she may have been on a special mission for the employer when driving for the purpose of attending the event, her injury occurred during a substantial deviation from that mission for personal purposes. Relying on the judge’s finding that her testimony about the length of time she spent at various locations was not credible, particularly the finding that there was a lot of time after the work event which was unaccounted for in her recitation of events, the WCAB found that her injury occurred during a “major deviation”, and was therefore not compensable.

The defendant also claimed the injury was not compensable because it resulted from intoxication. However, the WCAB found the defendant did not offer sufficient evidence to establish that the accident was substantially caused by intoxication. In addition, the WCAB noted that the employer might be estopped from claiming this defense because it provided her with alcohol.

Although nothing is certain, we anticipate that the Supreme Court will also elect not to review the Singer decision.

Mullen & Filippi is a workers' compensation defense law firm with 11 offices throughout California. This column was reprinted with the firm's permission from its quarterly client newsletter.