Rigoberto Garcia worked at Cole Ranch for approximately two months. While picking avocados from a high tree, he fell from a 24-foot ladder and suffered traumatic head injury. He filed a workers' compensation claim for psychiatric injury.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are not disputed. In May 2010, Cole Ranch employed Garcia as an avocado picker/high tree worker. Approximately two months later, Garcia fell from the top of a 24-foot ladder while picking avocados from a high tree. He suffered a serious and obvious head injury and sought workers' compensation benefits for industrial injury to his teeth, psyche, neck and back. Cole Ranch's insurer, State Compensation Insurance Fund (SCIF), admitted liability for the industrial physical injury, but denied the psychiatric injury because Garcia had not worked for Cole Ranch for at least six months, as required by section 3208.3, subdivision (d).
The sole question submitted for trial was whether Garcia's psychiatric injury qualified as a "sudden and extraordinary employment condition" under
Born in 1975, Garcia began picking fruit at age 17. He picked both avocados and lemons "[i]n the past," but had worked in construction for about 10 years before joining Cole Ranch. Garcia testified that between 1992 and the date of his injury, he had never fallen off a ladder. He stated he and the other Cole Ranch pickers used ladders daily. At the time of his fall, Garcia was standing on top of a 24-foot ladder picking avocados from a 35-foot tree in an avocado grove. He testified that no one at Cole Ranch ever advised him of the risk of falling from a ladder and that "as far as he knew," no other Cole Ranch picker had fallen from a ladder. Upon questioning by the workers' compensation judge (WCJ), Garcia stated Cole Ranch did not hold any safety meetings or provide him with a safety harness. SCIF presented no evidence.
The WCJ ruled that Garcia's testimony established his injury was the result of a sudden and extraordinary employment condition. The WCJ observed the injury was significant and that safety regulations were not followed. SCIF petitioned the WCAB for reconsideration, contending that Garcia's injury was not the result of an extraordinary employment condition, but rather an ordinary occupational hazard of picking fruit while standing on a ladder. Garcia did not answer the petition. The WCJ recommended denial.
In a split decision, the WCAB denied reconsideration. The majority emphasized SCIF's failure to introduce any evidence that Garcia's injury was not extraordinary. The majority commented, "While not particularly strong evidence on extraordinariness, [Garcia's] testimony was the only evidence. It was uncontradicted and unimpeached. [Citations.] If [SCIF] had presented any documentary evidence or testimony as to the frequency of falls from ladders for avocado pickers or how the rates for insuring them reflect the `common' risk of falls from ladders, then the decision on this issue might have been different."
The dissenting member of the WCAB reached the opposite conclusion, observing that "[t]he hazards of picking avocados while standing on a ladder are not mysterious or unknown, and this accident cannot reasonably be viewed, therefore, as unusual or totally unexpected." In the absence of persuasive evidence that such falls are rare, the dissent determined Garcia's psychiatric injury claim is barred under section 3208.3, subdivision (d). We granted SCIF's petition for writ of review.
Interpretation of governing statutes or application of law to undisputed facts is a question of law that we decide de novo. (California Ins. Guarantee Assn. v. Workers' Comp. Appeals Bd. (2008) 163 Cal.App.4th 853, 861 [77 Cal.Rptr.3d 868].) 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. (Matea v. Workers' Comp. Appeals Bd. (2006) 144 Cal.App.4th 1435, 1444 [51 Cal.Rptr.3d 314] (Matea).)
Section 3208.3, subdivision (d) provides that "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
In Matea, a rack of lumber suddenly fell on a manager-trainee's left leg while he was in a store aisle at The Home Depot. (Matea, supra, 144 Cal.App.4th at pp. 1449-1450.) He claimed psychiatric injury even though he had been employed less than six months. (Ibid.) Because the record contained no evidence that such occurrences of falling lumber were regular or routine, the court "assumed ... that they are uncommon, unusual and totally unexpected events." (Id. at p. 1450.) In the absence of any contrary evidence, the court held that Matea had satisfied his burden of proving that his injury was the result of a sudden and extraordinary employment condition. (Ibid.)
Garcia contends the same analysis applies here, but we see two critical distinctions. First, Matea's accident occurred in a store aisle, where "`one assumes that such occurrences [of falling lumber] are quite rare, given that those aisles are open to the public.'" (Matea, supra, 144 Cal.App.4th at p. 1441.) Shoppers typically are not on the lookout for falling merchandise as they walk down store aisles. Second, the WCJ determined that Matea's injury occurred when the wall shelf holding up the rack of lumber gave way without warning, dumping lumber into the aisle. Presumably, the lumber would have struck anyone who happened to be in the aisle at the time. (Ibid.)
Garcia's injury was far different. It did not occur in a public area or in an area shielded from the typical hazards of his occupation. To the contrary, the 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.
In Bayanjargal v. Workers' Comp. Appeals Bd. (2006) 71 Cal.Comp.Cases 1829, 1830-1831 (writ denied), the WCAB reversed the WCJ's finding that a roofer's fall from a roof was a sudden and extraordinary event. The WCAB stated: "`While we agree that the applicant's injury caused by his unfortunate slip and fall from the roof was a sudden event, it cannot be characterized as an extraordinary event. Clearly, it is the very risk of such falls that makes the type of employment in which applicant was engaged a very expensive occupation to insure in workers' compensation. It is not objectively reasonable to conclude that the risk of such injury was outside the ordinary risks and hazards of his occupation as a roofer. Neither do we find it extraordinary that applicant would sustain some form of psychiatric injury as a consequence of such a serious orthopedic injury.'" (Id. at p. 1830.)
Garcia's fall is indistinguishable from the roofer's fall in Bayanjargal and the electrician's fall in Romero. They are terrible accidents, but they are hazards of performing work above ground level. In some instances, of course, an ordinary occupational event may become extraordinary. In California Ins. Guarantee Assn. v. Workers' Comp. Appeals Bd. (2007) 72 Cal.Comp.Cases 482, 484 (writ denied), the WCJ acknowledged that while automobile accidents generally are not extraordinary events for a truckdriver, they may become so because of extremely unusual circumstances. In that case, the WCJ decided it was not "`frequent, regular or routine for a driver to fly or fall out of the passenger side of a vehicle after losing control of same while it is moving or stopped with a jackknifing trailer in pursuit as the driver tries to roll out of the way.'" (Ibid.)
Such extremely unusual circumstances are not present here. Garcia injured his head when he fell from a 24-foot ladder while picking avocados from a 35-foot tree. No evidence exists that something particularly unusual happened to cause the fall or that he suffered an injury one would not expect from a fall from that height. To support the claim that his fall was extraordinary, Garcia's only testimony was that prior to the accident he had not fallen off a ladder or heard of anyone else falling off a ladder at Cole Ranch. Even the WCAB majority acknowledged that this is "not particularly strong evidence on extraordinariness."
The order denying reconsideration is annulled, and the matter is remanded to the WCAB with instructions to deny Garcia's claim for psychiatric injury.
Yegan, J., and Perren, J., concurred.