When analyzing psyche claims, it’s common for even the most seasoned workers’ compensation professionals to mix up some of the most well-known exceptions to the rules.
The two easiest exceptions to mix up are the “sudden and extraordinary” and the “violent act” exceptions. While they have some similarities, one can tell by the names of these exceptions that they are clearly different – one refers to violence, whereas the other refers to suddenness.
Let’s take a closer look at how these exceptions apply.
IN SHORT
The “sudden and extraordinary” exception is an exception to the “six-month rule,” which refers to the concept that an applicant needs to work for an employer for six months before they can file a claim for a psyche injury.
The “violent act” exception arises when an applicant is trying to get around the rule barring benefits for a psyche injury that is the sequelae of physical trauma. Applicants can make psyche that emanates from a physical injury compensable if they can show that the injury was due to a “violent act.”
VIOLENT ACT
Black’s Law Dictionary defines a “violent act” as being: “…an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening.”
In the case of Zarifi v. Group 1 Automotive, 2018 Cal. Wrk. Comp. P.D. LEXIS 300, the Appeals Board gave some examples of a “violent act.” Those included:
“… such as being struck from behind by a car causing a loss of consciousness [Larsen, supra], falling from a tree, losing a helmet and striking his head multiple times while hanging by a tether, [Greenbrae Mgmt v. WCAB (Torres) (2017) 82 Cal. Comp. Cases 1494 (writ den.)] or being pinned and crushed in the cab of a truck for 35-40 minutes after rolling it over in an accident [Madson v. Cavaletto Ranches, 2017 Cal. Wrk. Comp. P.D. LEXIS 95]. (Emphasis added by author)”
Our friends at the California Lawyers Association published an article from applicant’s attorney Julius Young going into these descriptions in greater detail, if you want to read up more on the cases cited here.
To cut to the chase, the “violent act” exception features an act of violence that involves being hit by a car, or applicant is repeatedly struck, pinned, crushed, etc.
SUDDEN AND EXTRAORDINARY
As mentioned above, the sudden and extraordinary exception arises when an employee has worked for the employer for less than six months. In that case, the applicant must show that their psyche injury arose from a “sudden and extraordinary” event. (This is found in LC 3208.3(d).)
As we wrote in 2022, applicants will try to argue that the thing that occurred was unexpected. Savvy defendants can combat that by having employer witnesses testify that the event was frequent, or routine – as opposed to unexpected.
The WCAB has of course examined what does constitute a “sudden and extraordinary” event, and what does not.
In the case of Sophia Salas v. Innovative Work Comp Solutions, the WCAB ruled that the following situation was a sudden and extraordinary: another motorist suddenly drives into a delivery van, sending the applicant’s delivery van spinning and ultimately falling onto its side.
In the case of Gilberto Rodriguez v. Nooter Construction, the WCAB ruled that the following situation was not sudden and extraordinary: Working in a rubber ALKY suit above the ground. This was not sudden and extraordinary because this was a somewhat regular work condition that applicant had done before.
Defense attorneys should take note that in order to raise the six-months of employment rule, they first have the burden to show that the applicant only worked for the employer for less than six months. Defendants can do this with payroll records, the personnel file, HR records, and witness testimony. But don’t just assume that the court will raise this rule for you – defendants should take care to prove that the six-month rule applies.
IN CONCLUSION
It’s easy to mix up which exception applies to which rule. That’s okay, we are all human and nobody’s memory is perfect.
Perhaps the following mnemonics (aka fancy word tricks) can help one tell these exceptions apart:
- Six (months) Sudden and Extraordinary
- Acronym: SSE
- Violent Act Sequelae (to ortho injuries)
- Acronym: VAS
Try saying those 10 times in a row! If your tongue isn’t twisted into a tangle by then, perhaps you’ll be better than the rest of us when it comes to remembering which exception applies to which rule.
Got a question about workers’ compensation defense issues or pending legislation? Feel free to contact John P. Kamin. Mr. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location, where he monitors the recent legislative affairs as the firm’s Director of the Editorial Board. Mr. Kamin previously worked as a journalist for WorkCompCentral, where he reported on work-related injuries in all 50 states. Please feel free to contact John at jkamin@bradfordbarthel.com or at (818) 654-0411.
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