Marlon Johnson filed an application alleging that he sustained injury to various body parts, including left forearm, left elbow, left shoulder, left wrist, chest, neck, ribs, abdomen, left side, facial, lung left side, and injury to his psyche on January 10, 2020, while employed by MHX LLC as a truck driver.

The parties stipulated that Johnson had not completed six months of employment prior to his injury. One of the issues to be resolved at trial was to determine if the alleged psych injury was “sudden and extraordinary” and thus non-compensable under Labor Code Section 3208.3.

On the day of the injury, Johnson testified that he was driving his truck on an assigned route when he was caught in bumper-to-bumper traffic near railroad tracks. He suddenly saw “cars zooming off the tracks….” Crossing guards came down between the cab and the trailer of his truck so he was unable to move, however, he believed his truck was clear of the tracks.

He took off his seatbelt to get out of the truck, but, based on how quickly the train was approaching, he did not have time to leave the safe haven of his truck. He testified that his truck was shaking because the train was coming at him “real fast.” He saw the bright lights of the train, his truck was shaking really hard, and the next thing he remembers is the train colliding with his truck.

The WCJ found that section 3208.3(d) exempts defendant from liability for applicant’s psychiatric injury. Johnson’s petition for reconsideration was granted and this finding reversed in the panel decision of Johnson v. MHX LLC – ADJ12944107 (March 2022).

The Legislative and judicial history of section 3208.3 (d), shows that an “extraordinary” employment condition is something that is other than regular and routine, and is uncommon and unusual. This is a primarily fact-driven inquiry.

In Matea v. Workers’ Comp. Appeals Bd. (2006) 144 Cal. App. 4th 1435, the Court of Appeal noted that Webster’s Third International Dictionary “defines ‘sudden’ as ‘happening without previous notice or with very brief notice : coming or occurring unexpectedly : not foreseen or prepared for.'” The Court further observed that “extraordinary” is defined “as ‘going beyond what is usual, regular, common, or customary’; and ‘having little or no precedent and usu[ally] totally unexpected.'”

In Lira v. Premium Packing – ADJ8015423 (2015) Cal. Wrk. Comp. P.D. LEXIS 299,4 a worker was injured when a train collided with tractor being operated by the worker. The WCAB found compensability, and reasoned that a type of accident where a train collides with a tractor-trailer, such as occurred here, was not routine or ordinary but rather was uncommon and unexpected, so as to fall within “sudden and extraordinary” exception.

While automobile accidents generally are not extraordinary events for a truck driver, they may become extraordinary because of extremely unusual circumstances. In this case, being hit by a commuter train is not a common or normal part of a truck driver’s employment conditions. Based on these facts, the collision occurred suddenly, unexpectedly, and without previous notice.