(W.C.A.B. No. ADJ7412203) Proceeding to review a decision of the Workers' Compensation Appeals Board. Annulled and remanded.
The opinion of the court was delivered by: Gilbert, P.J.
CERTIFIED FOR PUBLICATION
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.
Labor Code section 3208.3, subdivision (d) generally bars claims of psychiatric injury if the applicant was employed less than six months.*fn1 This bar does not apply if the psychiatric injury is caused by a "sudden and extraordinary employment condition." (Ibid.)
Garcia's fall was sudden, but it was not extraordinary within the meaning of section 3208.3, subdivision (d). It was an occupational hazard of picking avocados while standing on a ladder, and thus was not uncommon, unusual or unexpected. We therefore annul the decision of the Workers' Compensation Appeals Board (WCAB) and remand with instructions to deny Garcia's 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 section 3208.3, subdivision (d) for purposes of avoiding the six-month employment requirement. All other issues were deferred. SCIF did not dispute the fall was sudden. The issue was whether it was extraordinary. Garcia was the only witness at trial.
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.) 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 ...