Filed 4/22/16
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                       DIVISION FOUR


TRAVELERS CASUALTY & SURETY
COMPANY et al.,
        Petitioners,                                  A146538

v.                                                    (WCAB No. ADJ7050835)
WORKERS’ COMPENSATION
APPEALS BOARD and MARK DREHER,
        Respondents.


        Petitioner Travelers Casualty & Surety Company (Travelers) seeks to set aside the
decision of the Workers’ Compensation Appeals Board (WCAB) finding that Mark
Dreher sustained a psychiatric injury resulting from a sudden and extraordinary
employment condition within the meaning of Labor Code1 section 3208.3,
subdivision (d). We conclude that Dreher’s accident was not extraordinary within the
meaning of section 3208.3 and therefore annul the decision of the WCAB and remand
with instructions to deny Dreher’s claim for psychiatric injury.
                                I. FACTUAL BACKGROUND
        The relevant facts are not in dispute. On October 19, 2009, Dreher was working
as a live-in maintenance supervisor for an apartment complex owned by Alliance
Residential, LLC (Alliance). As he was walking in the rain to another building in the
complex, Dreher slipped and fell on a slippery concrete walkway. He had worked for
Alliance for 74 days prior to the accident. Dreher sustained numerous injuries, including


        1
            All further statutory references are to the Labor Code.


                                                1
a fractured pelvis and injuries to his neck, right shoulder, right leg, and knee. He also
suffered gait derangement, a sleep disorder, and headaches. Dreher required surgery to
repair pelvic fractures, but continued to have problems with his right knee after he was
discharged from the hospital. He subsequently underwent surgery to repair a torn
meniscus. The surgery did not alleviate his pain and limitations. Dreher had an
additional surgery to address issues with his right foot and ankle, including hammertoe
and claw toes formation, in October 2011.
       Dreher sought compensation for a psychiatric injury arising from the accident and
was evaluated in June 2011. The evaluation concluded that Dreher suffered a psychiatric
disability as a result of the accident, including depression, difficulty sleeping, and panic
attacks.
       The workers’ compensation administrative law judge (WCJ) found that Dreher
sustained an injury arising out of and in the course of his employment but denied his
claim for a psychiatric injury, finding that it was barred by section 3208.3,
subdivision (d) because Dreher was employed by Alliance for less than six months and
his psychiatric injury did not result from a sudden and extraordinary employment
condition.
       Dreher petitioned the WCAB for reconsideration. The WCAB granted the
petition, finding that the injury was caused by an extraordinary employment condition
and thus was not barred by section 3208.3, subdivision (d).2 Travelers filed a petition for
writ of review.
                                     II. DISCUSSION
       Preliminarily, we address Dreher’s argument that the petition is legally defective
because Travelers failed to include the summary of Dreher’s testimony, his doctors’
conclusions, and the WCJ’s minutes of hearing and summary of evidence as required by
California Rules of Court, rule 8.495. Rule 8.495 requires that a petition to review a
WCAB decision include the decision to be reviewed, the WCJ’s minutes of hearing and

       2
        Chairwoman Ronnie G. Caplane dissented, concluding that the injury was
sustained in a routine and regular employment event.

                                              2
summary of evidence, and, if the petition challenges the substantiality of the evidence to
support the WCAB’s ruling, copies of all relevant material evidence. Travelers
acknowledges that it did not include the minutes, but argues that any defect was cured
inasmuch as Dreher included the minutes in his answer.3
       We excuse Travelers’ failure to include the minutes as required by rule 8.495.
“There is a strong public policy in favor of hearing cases on their merits and against
depriving a party of his right of appeal because of technical noncompliance in matters of
form.” (Litzmann v. Workmen’s Comp. Appeals Bd. (1968) 266 Cal.App.2d 203, 205.)
Moreover, here, as Travelers argues, the error has been cured by Dreher’s filing of the
minutes with his answer. As the record is adequate for our review, we proceed to the
substantive issues raised in the petition.
       Our review of the WCAB’s decision is limited. While we defer to the WCAB’s
findings of fact if they are supported by substantial evidence and accord “ ‘ “significant
respect” ’ ” to the WCAB’s interpretation of statutes in the workers’ compensation area,
we subject the WCAB’s conclusions of law to de novo review. (Matea v. Workers’
Comp. Appeals Bd. (2006) 144 Cal.App.4th 1435, 1443–1444 (Matea).) “Although we
give great weight to the WCAB’s interpretation of a statute, the WCAB’s erroneous
interpretation or application of law is a basis for annulment of its decision.” (State Comp.
Ins. Fund v. Workers’ Comp. Appeals Bd. (Garcia) (2012) 204 Cal.App.4th 766, 771
(Garcia).)
       The question presented here is whether Dreher’s injury was a “sudden and
extraordinary employment condition” within the meaning of section 3208.3,
subdivision (d). Section 3208.3 sets forth the conditions that must be met before an
applicant may recover for a psychiatric injury. It provides that no compensation will 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 . . . .’ ” (Garcia, supra,
204 Cal.App.4th at pp. 771–772.) This subdivision, however, does not apply “ ‘if the

       3
          Travelers notes that the minutes were never served on its counsel and did not
exist in its records.

                                             3
psychiatric injury is caused by a sudden and extraordinary employment condition.’ ” (Id.
at p. 772.)4
       “ ‘Subdivision (d) of section 3208.3 was enacted . . . with the apparent purpose of
“limit[ing] questionable claims for psychiatric injuries resulting from routine stress
during the first six months of employment.” [Citation.]’ ” (Matea, supra,
144 Cal.App.4th at p. 1445, quoting Wal-Mart Stores, Inc. v. Workers’ Comp. Appeals
Bd. (2003) 112 Cal.App.4th 1435, 1439 (Wal-Mart).) The Legislature sought to
“ ‘establish a new and higher threshold of compensability for psychiatric injury.’ ” (Ibid.,
quoting City of Oakland v. Workers’ Comp. Appeals Bd. (2002) 99 Cal.App.4th 261,
265.) The sudden and extraordinary employment condition exception thus encompasses
“ ‘the type of events that would naturally be expected to cause psychic disturbances even
in a diligent or honest employee.’ [Citation.]” (Garcia, supra, 204 Cal.App.4th at
p. 772.)
       In Wal-Mart, supra, 112 Cal.App.4th at p. 1441, fn. 9, the court, in dicta,
suggested that the extraordinary employment condition excludes accidental injuries and
applies only to extremely unusual events such as gas main explosions or workplace
violence that would likely be expected to cause psychic disturbances. “If the argument
were made that an accidental injury constitutes a ‘sudden and extraordinary employment
condition,’ we would reject it. For one thing, such an interpretation would mean that
psychological injuries resulting from accidents would not be subject to the six-month
rule, but such injuries arising from cumulative physical injury would be governed by that
limitation; this distinction would make no sense, and we are reluctant to attribute
irrational intentions to the Legislature.” (Ibid.)
       The Matea court agreed with the Wal-Mart court’s reading of the “sudden and
extraordinary” language as including only occurrences such as gas main explosions or


       4
         Prior to a 1993 amendment, the subdivision provided that the six month
limitation did not apply if the psychiatric injury was caused “by a sudden and
extraordinary employment condition as distinguished from a regular and routine event.”
(Stats. 1991, ch. 115, § 4, p. 684.)

                                               4
workplace violence, and it interpreted the language to except psychiatric injuries resulting
from routine physical injuries or routine personnel decisions during the first six months
of employment. (Matea, supra, 144 Cal.App.4th at p. 1448.) It therefore concluded that
the “extraordinary employment condition” exception is “something other than a regular
and routine employment event or condition, that is, that the event was uncommon,
unusual, and occurred unexpectedly . . . .” (Id. at p. 1449.) In Matea, a wall shelf
holding a large amount of lumber gave way without warning, resulting in a stack of
lumber falling on the employee’s leg. (Ibid.) The court concluded that the accident was
a totally unexpected occurrence and was not a routine physical injury or a routine type of
stress or employment event. (Id. at p. 1450.)
       Conversely, in Garcia, supra, 204 Cal.App.4th at p. 769, the court concluded that
an incident, in which a worker fell from the top of a 24-foot ladder while picking
avocados from a 36-foot tree, was not an uncommon or unexpected occurrence. Rather,
the court determined, it was an occupational hazard of picking avocados while standing
on a ladder. (Ibid.) The court distinguished Matea, noting that the accident there
occurred in a store aisle where falling lumber is rare since the aisles are open to the
public. (Id. at p. 773.) The tree picking accident, in contrast, did not occur in a public
area, and was a typical hazard of the worker’s occupation. “[T]he injury occurred in the
avocado grove where Garcia and his coworkers were picking fruit from high trees while
standing on tall ladders. A fall under these circumstances cannot be described as an
uncommon, unusual and totally unexpected occurrence.” (Ibid.) The Garcia court
concluded that the worker’s fall was not extraordinary and barred his claim for
psychiatric injury under section 3208.3, subdivision (d). (Id. at p. 775; see Alves v.
Workers’ Comp. Appeals Bd. (2014) 79 Cal.Comp.Cases 430 (Alves)5 [accident in which
construction worker caught his tool belt on a truss, causing it to fall on him did not suffer

       5
         California Compensation Cases are “properly citable authority, but only to the
extent that they point out the contemporaneous interpretation and application of the
workers’ compensation laws by the Board.” (Smith v. Workers’ Comp. Appeals Bd.
(2000) 79 Cal.App.4th 530, 537, fn. 2.) The cases are however, of “limited precedential
value and unquestionably have no stare decisis effect in an appellate court.” (Ibid.)

                                              5
extraordinary event as it was common for tool belts to get caught on protuberances,
causing items to fall].)
       A subsequent WCAB panel decision criticized the Garcia case as making an
unwarranted distinction between workers in hazardous occupations and those that are not,
reasoning that whether an employment event is extraordinary does not depend on whether
the event is a known risk in the industry. (Aguirre v. Ekim Painting North, Inc. et al.
(Cal. W.C.A.B., Aug. 25, 2014, No. ADJ6724252) [2014 WL 4686662].) There, the
Board concluded that a painter who fell from a second story roof suffered an
extraordinary employment condition. (Id. at p. 5.) “While the evidence indicates that it
was routine for applicant to work at the height of a second story roof, the act of applicant
falling was not common or expected.” (Id. at p. 6; see Redwood Empire Sawmill v.
Workers’ Comp. Appeals Bd. (2013) 78 Cal.Comp.Cases 498 [accident where worker
severed several fingers when his hand was caught by the teeth of a moving chain saw
after he fell forward on a conveyor belt was extraordinary where evidence showed that
having hands pulled into moving chains was not ordinary and was “freaky”].)
       Dreher suggests that the unexpectedly catastrophic nature of the injury can support
a finding of an extraordinary employment condition. We disagree.
       In interpreting section 3208.3, we are guided by well established rules of statutory
construction. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d
1379, 1386.) We must look first to the plain words of the statute to determine legislative
intent. (Id. at pp. 1386–1387.) “ ‘If there is no ambiguity in the language, we presume
the Legislature meant what it said and the plain meaning of the statute governs.’ ” (Lewis
v. Superior Court (1999) 19 Cal.4th 1232, 1245.) Here, the statute provides that the six-
month limitation does not apply if the psychiatric condition is caused by a “sudden and
extraordinary employment condition.” (§ 3208.3, subd. (d).) The statute does not
include the nature of the injuries resulting from an incident as a basis for the exception.
Had the Legislature intended to include the nature of the injury as a factor in the
definition of a sudden and extraordinary employment condition, it knew how to do so.
(See Lockheed Martin Corp. v. Workers’ Comp. Appeals Bd. (2002) 96 Cal.App.4th


                                              6
1237, 1245–1246 [legislature undoubtedly knows how to enact an exception]; § 4660.1,
subd. (c)((2)(B) [setting forth exception for catastrophic injury].)
       Accordingly, although Dreher’s injury was more serious than might be expected, it
did not constitute, nor was it caused by, a sudden and extraordinary employment event
within the meaning of section 3208.3, subdivision (d). The evidence showed that Dreher
routinely walked between buildings on concrete walkways at the work site and that he
slipped and fell while walking on rain-slicked pavement. Like the accidents in Garcia,
supra, 204 Cal.App.4th 766 and Alves, supra, 79 Cal.Comp.Cases 430, Dreher’s slip and
fall was the kind of incident that could reasonably be expected to occur.
       Where, as here, an employee alleges a psychiatric injury during the first six
months of employment, he or she has the burden of proving, by a preponderance of the
evidence, that a sudden and extraordinary condition caused the injury. (Matea, supra,
144 Cal.App.4th at p. 1449; Garcia, supra, 204 Cal.App.4th at p. 772.) Dreher did not
meet that burden.6 His testimony that he was surprised by the slick surface of the
walkway because the other walkways had a rough surface, and his further testimony that
the walkway was later resurfaced, did not demonstrate that his injury was caused by an
uncommon, unusual, or totally unexpected event. Because the injury here was not the
result of a “sudden and extraordinary event[,]” Dreher’s claim for psychiatric injury is
barred under section 3208.3, subdivision (d). (Matea, at p. 1450.)
                                    III. DISPOSITION
       The order granting reconsideration on Dreher’s claim of psychiatric injury is
annulled and the matter is remanded to the WCAB with instructions to deny the claim for
psychiatric injury.




       6
        To the extent the WCAB’s decision can be read to place the burden of proof on
the employer to demonstrate that the accident was the result of “a routine or ordinary
employment condition,” it was incorrect.


                                              7
                                _________________________
                                Rivera, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Streeter, J.




                            8
Travelers Casualty & Surety Company et al. v. Workers’ Compensation Appeals Board
and Mark Dreher (A146538)

Trial Court:                       No County Applies
Trial Judge:                       None


Counsel for Petitioners:           Hayes Scott Bonino Ellingson & McLay and Mark G.
                                   Bonino

Counsel for Petitioner Travelers   Susan T. Marks & Associates and Patricia A.
Casualty & Surety Company:         Strickland

Counsel for Amicus Curiae          Law Offices of Allweiss & McMurtry and Michael A.
California Workers’                Marks
Compensation Institute on
behalf of Petitioners:

Counsel for Amicus Curiae          Finnegan, Marks, Theofel & Desmond and Ellen Sims
California Chamber of              Langille
Commerce on behalf of
Petitioners:

Counsel for Respondent Mark        Law Office of John A. Bloom and John A. Bloom
Dreher:

Counsel for Respondent             Anne Schmitz & James T. Losee
Workers’ Compensation
Appeals Board:




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