This article addresses the infamous six-month rule, what exactly the rule is, how far it can be taken and how to stop it from being taken too far. It is not the purpose of this article to delve into whether, and to what extent, a psyche claim can still be alleged post-January 2013.
What exactly is the rule?
According to California Labor Code Section 3208.3(d), “no compensation shall be paid … for a psychiatric injury related to a claim against an employer unless the employee has been employed by that employer for at least six months.”
Pardon me if I am stating the obvious, but I should add that the rule requiring at least six months of employment applies to both compensable consequence psyche claims and stand-alone psyche claims.
So, what does this mean?
Here it is in a nutshell:
And now for the exception to the six-month rule
The exception to the six-month rule, tucked into Labor Code Section 3208.3(d), provides that the requirement for at least six months of employment “shall not apply if the psychiatric injury is caused by a sudden and extraordinary employment condition.”
Does this mean any and every injured worker can try to get around the six-month rule by claiming his or her injury was sudden and extraordinary? Not at all.
For those not already familiar with it, allow me to introduce the Dreher case, a wonderfully common-sense decision by the 1st Appellate District Court of Appeal (Travelers Casualty and Surety Co v. WCAB (Dreher, 2016 Cal. App. LEXIS 321)).
Applicant sustained an injury resulting from a slip and fall on a wet concrete walkway. The Court of Appeal held that this did not constitute a sudden and extraordinary employment event.
The case provided the following guidance in deciding the issue:
To determine otherwise would mean that just about every serious specific injury leading to a psyche claim could arguably be both sudden and extraordinary, and would not be subject to the six-month rule. This would create a situation in which the exception would swallow the rule.
The burden is on the injured worker to prove a sudden and extraordinary condition, and mere surprise is not sufficient.
In Dreher, the injured worker’s testimony that he was “surprised” by the slick surface did not demonstrate that his injury was caused by an uncommon, unusual or totally unexpected event.
What does it take to establish an exception?
A violent act will almost certainly overcome the rule. A number of cases on this issue have defined a “violent act” for purposes of a sudden and extraordinary work condition as “an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening.”
Case law has allowed exceptions to the six-month rule in the following instances:
What else is there to say?
There are a lot of nuances, opinions and cases on this subject. However, I have to stop somewhere, and for now, I’ll leave you with the above.
Farai M. Alves is a senior partner based at Bradford & Barthel’s Oakland location. This entry from Bradford & Barthel's blog appears with permission.
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