RE: GEORGE THE BARTENDER’S DISPATCHES FROM OFFLINE HAPPY HOUR – GETTING INTO THE GRISLY WEEDS OF WHAT CONSTITUTES A VIOLENT ACT INJURY
FROM MY BAR AT HOME:
My friend Mike “Gator” Greenwell, a local applicant’s attorney, was in fine spirits as we enjoyed a nice May evening and some fully-vaccinated socializing on Gator’s front porch.
Gator had always fancied himself to be a bit of cowboy. Sometimes after watching a few too many westerns, Gator might start to adopt a Texas twang in his voice. I’m not sure who he thinks he’s fooling; this guy is from Fontana.
While Gator himself has never even been on a horse, to his delight, his latest case had given him the chance to spend a little time at a ranch while representing an injured worker.
Gator’s client, Spike Owen, grew up in Texas and had a way with animals. For the last decade or so, Spike had worked at a California resort that offered high-end dude ranch vacations. One day after checking on the horses, Spike was heading back to the main lodge when he accidentally caught his hand in the latch of the gate he was closing.
The gate itself was relatively lightweight aluminum, and Spike had been closing it gently enough, but the very end of his left index finger had been jammed between two parts of the gate latch. Spike had previously injured the same finger in a nasty high school baseball incident in which it was stomped on while sliding into second base. The prior injury left the finger especially fragile, and this recent gate injury hit the same spot. The combined effects where such that by the time Spike got himself to a hospital the next day (as he told Gator, “There was still work that needed a doin’!”), doctors decided to amputate about half an inch of his injured finger.
As far as workers’ compensation cases go, it seemed straightforward at first. The claim was admitted, the finger was treated, the Qualified Medical Examiner (QME) report was rated, and there were no disputes about any of those issues.
The wrinkle in the case arose when Gator amended the Application to include a claim for psychiatric injury. Gator’s position was that the physical injury had caused Spike to develop some depression and anxiety. A panel QME in psychiatry found ratable impairment due to the finger injury, and Gator wanted to argue that Spike was entitled to permanent disability (PD) for both the orthopedic and psychiatric issues.
“Oil Can thinks he can beat me, but I’ve got the case law this time!” Gator declared proudly. Our mutual friend, Dennis “Oil Can” Boyd, was representing the ranch’s carrier.
The carrier’s position was that Spike should get no PD for the psychiatric injury. The argument essentially boiled down to whether Spike’s injury counted as what is commonly referred to in our wonderful world of workers’ compensation as a “violent act.”
By way of background, California Labor Code §4660.1(c) provides that, for injuries sustained on or after January 1, 2013, no additional permanent disability shall be awarded for psychiatric injuries arising from a compensable physical injury.
However, there are two exceptions to this general rule, as provided in §4660.1(c)(2). Additional permanent disability will be awarded for psychiatric injuries arising from either:
(A) Being a victim of a violent act or direct exposure to a significant violent act within the meaning of Section 3208.3.
(B) A catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.
In this case, Gator was not claiming that there was a catastrophic injury, so the only dispute was whether there had been a “violent act.”
What exactly is a “violent act” for the purposes of §4660.1 though? Unfortunately, loyal Home Bar patron, the statute itself fails to provide a definition. Thankfully, the Workers’ Compensation Appeals Board (WCAB) has given us a bit of guidance over the past few years.
In its May 2019 en banc decision of Kris Wilson v. State of CA Cal Fire, 84 Cal.Comp.Cases 393, the WCAB asks us to consider the mechanism of injury, not the outcome, as they found:1
Evaluation of whether an injury resulted from a “violent act” under section 4660.1(c)(2)(A) focuses on the mechanism of injury. This focus on the mechanism of injury comports with the statute’s language, which emphasizes the event causing the injury, rather than the injury itself: the statute expressly refers to being a victim of or direct exposure to a violent “act.” The word “injury” is not in this subsection. The focus in evaluating whether an injury qualifies for the exception in section 4660.1(c)(2)(A) is therefore on the mechanism of injury, not on the injury itself.
Consolidating the findings of some earlier panel decisions, the WCAB in Wilson stated that a “violent act” is “an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening.”
While the WCAB in Wilson did not get into specific examples of what constitutes “violent acts,” over the past few years they have come to define “violent acts” as injuries that include being struck by a car while walking on patrol as a security guard (Larsen v. Securitas Security Services (2016) 81 CCC 770), or falling 20 feet from a tree and hitting your head multiple times while working as a landscaper (Torres v. Greenbrae Management (2017) 82 CCC 952).
In contrast, a “violent act” was not found when the injury resulted from mechanisms including exposure to smoke and fumes while fighting a wildfire (Wilson, ruled a catastrophic injury by the WCAB, but not by the WCJ), falling 2.5 feet from stilts (Ugalde v. Rockwell Drywall, Inc., 2019 Cal. Wrk. Comp. P.D. LEXIS 213), or falling out of a breaking dental chair/stool (Mares v. Sierra Pacific Dental Consultants, LLC/Children’s Dental Group, 2019 Cal. Wrk. Comp. P.D. LEXIS 488).
These examples provide some guidance, but there’s still lots of wiggle room. It would appear to this humble defense attorney that any decision on this issue would be highly fact-specific.
Snapped out of my workers’ comp reverie, back on the front porch Gator was saying that he and Oil Can had been reviewing any panel decisions they could find, and had been arguing about some cases that involved scenarios closer to Spike’s injury.
Gator liked the decisions in Guerrero v. Ramcast Steel Fabrication (2017, 82 CCC 1222), where the applicant’s loss of two fingers when his hand was crushed in a machine press was found to be a “violent act.” He also liked Lopez v. General Wax Co. (2017 Cal. Wrk. Comp P.D. LEXIS 291), where the applicant lost part of a finger when their hand became stuck in a machine they were working on which was also ruled a “violent act.”
I wondered aloud, “So, is an injury with a crush strong enough to lose part of finger always considered a violent act?”
Oil Can texted me earlier that he was not convinced by Gator’s argument. I could see his point as the cases Gator mentioned involved getting fingers caught in machines, not a gate. Spike’s finger had been pinched by a small gate that he was moving himself. Oil Can thought he had a closer factual match in the decision Garcia v. Harvest Church (2018, Cal. Wrk. Comp. P.D. LEXIS 530) in which no “violent act” was found when the applicant’s foot was crushed by a gate they were opening.2 They didn’t lose consciousness or immediately seek medical attention.
At their most recent hearing, Gator was convinced that he’d one-upped Oil Can by locating the recent panel decision in Sturm v. Coronado Unified School District (2021) (ADJ11260845).3 In Sturm, the applicant was closing a heavy, nine-foot tall gate at the school where they worked when their finger was caught in a gate, causing an injury which lead to a partial amputation. The workers’ compensation judge (WCJ) found it to be a “violent act.”
After the defendant petitioned for reconsideration, the WCAB upheld the finding of a “violent act.” The panel decision found that there was “no meaningful distinction” between getting a finger caught in the school gate and having a hand/fingers crushed by machines in Guerrero and Lopez, the decisions that Gator believed favored his argument.
Gator was particularly pleased by some of the language in Sturm, which stated that an attempt to distinguish this case because the applicant herself was pushing the gate door closed “implies an element of blame for how the injury occurred, which is improper in our no-fault system.”
Gator handed me a copy of Sturm to peruse while he fetched another round of drinks. The first thing I noticed was that the decision included a lengthy dissent, as one of three commissioners did not find that the applicant’s gate injury was a “violent act.”
The Sturm dissent was not based on blaming the victim. Instead, in keeping with the line of cases trying to interpret the meaning of a “violent act,” with particular reference to the language in Wilson, the dissent focused on the mechanism of injury and whether it could be said to involve strong physical force, extreme or intense force, or a vehemently threatening act. The dissent noted that one’s finger could become caught in a gate without there being any extreme force involved. In Sturm, the applicant testified that they were pushing the gate closed slowly. Based on that, the dissent concluded that there was not sufficient force involved to rise to the level of a “violent act.”
This was a silver lining for Oil Can. Gator had wanted to use Sturm to stand for the proposition that basically any injury resulting in a finger amputation was a “violent act.” But, the dissent demonstrated an opportunity to argue that this was not necessarily true. Gator’s logic put too much emphasis on the outcome (partial finger loss) when the case law actually called for analysis of the mechanism of injury only, and the level of force involved. While the applicant had prevailed in Sturm, there was evidence to suggest that even less force had been involved in Spike’s injury than in Sturm.
When Gator emerged from his home with fresh drinks, I suggested that he invite Oil Can to join us, as it seemed like this might be a great time for three vaccinated friends to toast the miracles of modern science while continuing to debate the finer points of evolving workers’ compensation case law. Simple pleasures are the best, they say.
All characters at my porch happy hour are fictional and the storyline is simply a product of my vibrant imagination.
The definition of a “violent act” seems to be case specific and related to the details of an injury, rather than a concrete rule that can be applied to all cases, requiring a skilled defense attorney to dig into the details of a particular case and know the relevant case law.
We touched on many decisions here today. The defense oriented-ones, Garcia and the dissent in Sturm, lack the designation “significant panel decision,” however, the WCAB may consider panel decisions to the extent that it finds their reasoning persuasive, as laid out in its en banc decision Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, 242, fn. 7.
Joe Truce, formerly a managing shareholder at our firm and creator of George the Bartender, would draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”
We are safely enjoying more time away from the home bar and good times with good friends. Bottoms up and keep washing your hands.
1 A copy of Wilson can be obtained via email request.
2 A copy of Garcia can be obtained via email request.
3 A copy of Sturm can be obtained via email request.