Analyzing Labor Code section 3208.3(d) and What Constitutes a Sudden and Extraordinary Employment Condition
The recent case of John Aresco v. WCAB, Marine World Africa USA, 2014 79 CCC 1188, dealt with the issue of Labor Code section 3208.3(d) and whether the applicant’s alleged compensable consequence of an industrial bacterial infection which manifested as Guillain-Barre Syndrome was barred by Labor Code section 3208.3(d). The applicant was diagnosed with Guillain-Barre Syndrome in July of 1998 after awaking with paralysis of his right arm along with vision problems and severe headaches. (See Aresco v. WCAB, Supra 79 CCC 1188, 1189.)
In June of 2000, a WCJ found that the Guillain-Barre Syndrome was an industrially related injury related to the applicant’s employment as a maintenance worker for the defendant. The precise mechanism leading to the applicant’s injury was undetermined; however, it was noted that the applicant may have contracted the bacterial infection either from food he ate at a company picnic, from picking up trash on the work site or from eating a tainted berry given to him by a co-worker. The infection manifested as Guillain-Barre Syndrome.
The applicant subsequently sought benefits for a claimed psychiatric injury which he claimed as a compensable consequence of the syndrome. The defendants denied the applicant’s psychiatric claim on the basis that the claim was barred under Labor Code section 3208.3(d) as the applicant was employed with the defendant for fewer than six months at the time of the industrial injury. The applicant claimed he was exempt from the six month employment requirement because the psychiatric injury was caused by a sudden and extraordinary employment condition. (Id. at p. 1189.)
At trial, the applicant testified that in July of 1998, he woke up in the morning and was unable to use his right arm, experienced double vision, and had severe head pain. The applicant further testified he was in shock over his condition and experienced feelings of depression and hopelessness. (Id. at p. 1189.) The applicant was told by a physician that his condition could be fatal and subsequently spent seven months in hospice care. The applicant did eventually recover from the syndrome but claimed continued significant psychiatric symptoms as a result of the “ordeal.” (Id. at 1189 and 1190.)
In August 2013, the WCJ issued a finding that the applicant’s psychiatric condition was caused by a sudden and extraordinary employment condition and was, thus, not barred by the six month employment requirement. The WCJ reasoned that despite the lack of certainty regarding the mechanism of the applicant’s injury, the applicant established that the psychiatric injury is exempt from the six month employment requirement based on evidence that no other employee working for the defendant had contracted the syndrome, that the applicant was unaware that his work for the defendant would expose him to such risk of that syndrome, that contraction of the syndrome was completely unexpected, and that the applicant’s illness caused by the industrial injury was significantly disabling. The WCJ made a distinction in the ruling between the language “employment event” versus “employment condition” to describe the occurrence necessary for application of the sudden and extraordinary exception. (Id. at p. 1190) The WCJ determined that the severity of, or consequences flowing from an injury may satisfy the sudden and extraordinary requirement in Labor Code section 3208.3(d), the WCJ concluded that the debilitating symptoms of the applicant’s Guillain-Barre Syndrome, coupled with the totally unexpected nature and uncertain outcome of the condition, was sufficient to exempt the applicant’s psychiatric claim from the six month employment rule. (Ibid.)
The defendant filed a Petition for Reconsideration contending there was no unusual, uncommon, or unexpected event that occurred in the applicant’s employment that would be construed as sudden or extraordinary for the purpose of avoiding the six month bar. The defendant argued that there was nothing unusual or uncommon with the circumstances of the applicant’s work which was being performed. The defendant further maintained that the applicant’s exposure to bacterial infection while working at an animal theme park was not unique, uncommon, or unforeseeable, and the defendant further disagreed with the WCJ’s suggestion that the disabling nature of the condition or disease resulting from the exposure, i.e., the consequence, was in itself enough to support the exception of the six month rule. (Id. at 1191.)
Ultimately, the WCAB granted reconsideration and rescinded the WCJ’s finding that the applicant’s psychiatric injury was caused by a sudden and extraordinary employment condition. The WCAB noted that, “regardless of whether the injury was caused by eating tainted food, picking up trash, or eating a berry given to him by a co-worker, none of these could be considered an extraordinary employment condition.” (Id. at 1192.)
The WCAB further noted there was nothing unusual or uncommon or unexpected about these activities occurring or causing injury in the applicant’s employment as a janitor/maintenance worker at an animal theme park. (Id. at 1192) The WCAB also was not convinced that the circumstances or consequences flowing from an injury were adequate grounds for determining that injury was caused by a sudden and extraordinary employment condition. Ultimately, the WCAB emphasized that it was the “work condition that must be uncommon, unusual, or totally unexpected” in order to qualify as an extraordinary employment condition, “not the resulting medical condition.” (Id. at 1193.)
The applicant filed a Petition for Writ of Review contending that the WCAB incorrectly found the psychiatric injury was not caused by a sudden, extraordinary employment condition. The Writ was denied.
Often we see devastating consequences of an industrial injury and in such cases a psychiatric compensable injury is often plead. In such cases there is often a sympathetic reaction by individuals involved with the case to assume there is a psychiatric injury. However, for purposes of LC 3208.3(d), the analysis does not stop with the consequences of an injury. Instead, you must analyze as to whether the work condition is uncommon, unusual, or totally unexpected in determining whether a sudden and extraordinary exclusion to the six month rule exists.