Fall from loading dock is a sudden an extraordinary event for Psychiatric purposes

This is an order denying reconsideration case

This is a very significant case for workers’ compensation principles.

The applicant claimed an industrial injury to her tibia, humerus and psyche due to a fall.  The applicant did not work for the employer 6 months at the time of the injury.

The applicant was walking on a loading dock at work looking for the cafeteria when she fell on her second day of work. Defendant denies the applicant’s claim for psychiatric injury under Labor Code section 3208.3 (d) because she had not worked for the employer for 6 months.  The applicant went to a Psychiatric Qualified Medical Examiner who stated the applicant’s psychiatric injury was predominately industrial.

The case went to trial. The Workers’ Compensation Judge (WCJ) found the applicant’s psychiatric injury was a “sudden and extraordinary” event that was an exception to the six-months employment requirement under section 3208.3 (d).

The defendant petitioned for reconsideration contending that falls at work were common and “routine” and therefore, not a sudden and extraordinary event.

The majority of the Workers’ Compensation Appeals  Board (WCAB) panel in a split decision upheld the WCJ.  They cited Matea v. WCAB.  They ruled a fall from a loading dock was an unexpected risk. The applicant’s injury was not barred by 3208.3.


Injury from fall from chair after an Idiopathic Seizure is ruled compensable

This is a Board panel decision

This is a very significant case for workers’ compensation principles.

The applicant was seated at work doing her job. She claimed a seizure caused her to fall from her chair causing compensable injury to her left shoulder, left arm and neck. She did not claim the seizure itself was compensable.

She had taken pain medication during her thirty minute lunch break. Twenty five minutes after her lunch break she fell injuring herself. There was no evidence she was intoxicated or that intoxication caused her injury. There were no toxicology reports.

The Workers’ Compensation Judge (WCJ) at trial ruled the seizure occurred at work.  The WCJ indicated that while the idiopathic injury could have occurred anywhere, it occurred at work. The WCJ followed the case of Gideon stating that the fact the seizure occurred at work made the parts of the body injured in the fall industrial.

The WCJ ruled that the applicant’s injury did not present a unique danger to prevent compensability.

The defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) issued a Panel decision. They agreed with the WCJ in following the  Supreme Court  Gideon case. They concluded that if an employee sustains an injury from a fall on the employer’s premises in the course of employment that it is compensable, even if it was cause by an idiopathic seizure. Therefore, the injury was industrial.

Mass v. Hospital Bus. Services, Inc

 Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586


Good faith payments in closed case are credited against a subsequent claim

This is a Board Panel Decision

This is a very significant case for workers’ compensation principles.

The applicant had an injury to his right knee in 2001. The case was settled by Stipulation with Request for Award.  The applicant saw an Agreed Medical Examiner (AME) in 2009 who indicated the applicant had new and further disability.

The defendant made $23,000 in increased permanent disability payments based on this report. The applicant never reopened the case for new and further disability.

The applicant then filed a new claim for a cumulative trauma to the right knee through 2013. The same AME attributed permanent disability to the cumulative trauma.

The case went to trial.  The defendant raised the issue of credit for overpayment of permanent disability on the 2001 case.  They asserted they mistakenly believed the applicant would reopen that case and paid permanent disability.

The Workers’ Compensation Judge (WCJ) ruled that the defendant was not entitled to a credit for the overpayment. The defendant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board ruled that the defendant acted in good faith in advancing permanent disability payments for the 2001 injury. The defendant was given credit on the cumulative trauma because equity favors allowance of the credit. The WCJ was overturned.

 Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586


Low Back not included in Compromise and Release so it was not settled

This is an opinion and decision after reconsideration

The applicant alleged injury to multiple body parts including the low back. The parties entered into a Compromise and Release but it did not include the low back as part of the settlement.

The case went to trial on whether the applicant could still claim the low back even though the rest of the body parts were settled by Compromise and Release. The Workers’ Compensation Judge (WCJ) ruled since the parties were aware of the claim for the low back it was not settled.

Defendant appealed. The applicant struck the language in the C&R that discharged defendant form liability for any claims not mentioned. The Workers’ Compensation Appeals Board ruled the low back claim was not settled and remanded the case.

Romero v. Berberian Enterprises
Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602


If you file a DOR a petition for contribution is not required for contribution

This is an order denying a writ of review

This is a very significant case for workers’ compensation principles.

Applicant filed a specific injury and a cumulative trauma. The first defendant covered the specific and part of the cumulative trauma.

Based on  an Agreed Medical Examiner (AME)  the date of the end of the cumulative trauma changed. The first defendant entered into a compromise and release for a cumulative trauma since the AME found no specific injury.

Eight days later the Workers’ Compensation Judge (WCJ) joined the second defendant on the cumulative trauma.

The first defendant filed a Declaration of Readiness to Proceed (DOR). The second defendant objected to the DOR “on contribution issues”. No petition for contribution was filed within one year.

The second defendant claimed to an arbitrator that the contribution issue was barred because no petition for contribution was filed within one year. The first defendant claimed estoppel indicating the second defendant knew of the contribution issue timely by way of DOR and emails. The arbitrator found the contribution issue timely.

The Court of Appeal in denying  the second defendant’s writ indicated that a DOR is satisfactory under Labor Code section 5500.5 and WCAB Rule 10510.  The DOR was deemed sufficient to institute proceedings.

Brotherhood Mut. Ins. V WCAB

 Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586


Psychiatric injury is supported by substantial medical evidence and compensable as extraordinary event

This is a Board Panel decision

This is a very significant case for workers’ compensation principles.

The applicant was a tree trimmer employed less than 6 months. A coworker inadvertently put applicant’s climbing rope in to  a wood chopper. This resulted in a left leg dislocation and later surgical amputation. The defendant accepted injury to multiple body parts but not to psychiatric injury.

At trial the Workers’ Compensation Judge (WCJ) found the orthopedic compensable but did not rule on whether the applicant’s injury resulted from a “sudden extraordinary employment condition.”

Defendant petitioned for reconsideration indicating there was no psychiatric injury under Labor Code section 3208.3 (d) because the applicant had not worked 6 months. and the “sudden extraordinary exception” to this code section did not apply.

The Workers’ Compensation Appeals Board (WCAB) reviewed Matea v WCAB and SCIF v WCAB (Garcia). They indicated the facts revolved whether the injury was “uncommon, unusual and unexpected and did not result from a routine and regular event.”

They ruled the applicant showed the manner in which his leg was amputated was from an “uncommon, unusual and unexpected event” and not from a “routine and regular employment event.”

Therefore, the psychiatric claim was compensable .


Panel finds good cause to set aside Order Approving Compromise and Release

This is a Board panel decision

This is a very significant case for workers’ compensation principles.

The applicant sustained an accepted cumulative trauma injury to the low back and hips while working as a maintenance worker. The applicant saw a primary treating doctor who did not discuss permanent disability in his report.

A claims adjuster offered the unrepresented applicant a $7500 settlement without negotiations and did not explain the applicant had a right to a Qualified Medical Examiner (QME).

The applicant did not know what permanent and stationary meant and signed a Compromise and Release (C&R) that stated applicant’s temporary disability was ongoing based on the primary treating doctor. The C&R stated the applicant was not permanent and stationary.

Defendant’s attorney got the C&R approved on a walk-through. Two days later the defendant sent applicant a letter indicated his temporary disability was discontinued and his right to dispute this.

The applicant retained counsel who filed a petition to set aside the C&R. The Workers’ Compensation Judge (WCJ) concluded there was no good cause to set aside the C&R. The applicant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board (WCAB) reversed the WCJ. The panel ruled the applicant had not been given adequate notices of his rights before entering into the C&R.

Moreno v Hidden Valley Ranch


Ruling on cancer presumption under Labor Code section 3212.1 is upheld

This is an order denying appellate review

This is a very significant case for workers’ compensation principles.

The applicant was employed as a probation officer. He was assigned to the
Narcotics Task Force under his employment for nearly two years. This was
through the State Bureau of Narcotics Enforcement. However, the County
where he was a probation officer paid his salary.

He was designated a Special Agent of the State and reported directly to the State. He had job duties that included incinerator operations and exposure to known carcinogens. The applicant later developed pancreatic cancer while employed by the County and filed a Workers’ Compensation claim asserting the cancer presumption of Labor Code section 3212.1.

The case went to trial and the Workers’ Compensation Judge (WCJ) found that there was substantial medical evidence supporting the applicant’s entitlement to the Labor Code section 3212.1 cancer presumption.
The applicant filed a petition for reconsideration and the Workers’ Compensation Appeals Board (WCAB) in a Board panel decision agreed with the WCJ.

This resulted in the defendant filing for a Writ of Review with the appellate court. The appellate denied defendant’s petition for writ of review, concluding that substantial medical evidence supported a finding of the cancer presumption.


Applicant is ruled Initial Physical Aggressor and the case is ruled Non Industrial

This is a Board Panel decision

This is a very significant case for workers’ compensation principles.

The applicant was a school teacher. The teacher blocked a doorway to prevent students form leaving the classroom after class was over. He intended on telling several students they were failing the class.

A student attempted to exit the doorway. The teacher told the student to sit down. The student told the teacher to get out of his way. At that time some spit from the students mouth appeared to go toward the teacher. The teacher slapped the student in the face. The student them punched the teacher in the chest.

The teacher filed a workers’ compensation claim alleging a psychiatric injury with post traumatic stress. The case went to trial and the Workers’ Compensation Judge (WCJ) ruled the applicant suffered a psychiatric injury but compensation was denied by the initial physical aggressor rule. 3600 (a)(7). The applicant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) reviewed case law including Mathews v. WCAB and Gegic v. WCAB.

The WCAB reviewed the psychiatrist report that applicant had sustained a psychiatric injury. Even though he had a psychiatric injury he was denied compensation as the initial physical aggressor.

The Board determined the student did not deliberately spit on the teacher it was just liquid released from his mouth while he was talking.


Applicant established Special Mission Exception to Going and Coming Rule

This is a Board Panel decision

This is a very significant case for workers’ compensation principles.

The applicant was a doctor. He worked five days a week, 40 hours a week unless his supervisor asked him to work overtime.

His supervisor emailed him asking him to prepare a presentation. He walked to work. He left the hospital at 8 p.m. to walk home carrying his computer with the presentation. His supervisor called him to discuss the presentation. As he was talking to the supervisor he stepped off the curb and was hit by a car. He filed a claim and the defendant denied the claim base on the Going and Coming Rule. The case went to trial and the Workers’ Compensation Judge (WCJ) found the applicant was on a special mission and therefore, the claim was compensable.

The defendant appealed. The Workers’ Compensation Appeals Board (WCAB) indicated that under the going and coming rule injuries do not normally arise out of and in the course of employment. However, there are numerous exceptions.

The special mission exception is where the employee is performing (1) an extraordinary duty in relation to the employees duties; (2) is within the course of employment: and (3) has undertaken the duty at the express of
implied request of the employer for the benefit of the employer.

Here it was ruled the applicant was providing a service to the employer within the special mission exception.


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