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Leslie Elizabeth McCain was employed as a laborer by Wallis Construction, Inc., sustained injury AOE/COE to her left elbow, left wrist, right wrist, and psyche on September 24, 2014, and claims to have sustained injury AOE/COE to her neck and shoulders, consisting of myofascial pain.

She waited roughly 1½ months to seek treatment for her physical injuries, at which point she visited Doctors on Duty, where she was evaluated by Michael Luder, M.D. During her visit, applicant informed Dr. Luder that, when the injury occurred, she was “using a weed whacker, lost her footing and hit her left elbow into a wall.

On December 2, 2014, she visited an Urgent Care facility where she similarly told Robert Martin, PT (physical therapist) that the injury occurred when “[s]he was weedwhacking in [a] small space …. She lost footing and fell into [a] wall hitting (L) elbow with wall and weedwhacker.”

She then provided various different versions as to how her injury occurred during subsequent doctors’ visits between 2015 and 2017, stating at various times that: (1) her injury was caused by repetitive use working in construction; (2) that a “jackhammer” fell on her arm; (3) that a “hand held compactor” struck her left elbow when she tried to block it from striking a door; (4) that a “200-pound” weedwhacker fell on her left arm; (5) that the weedwhacker became stuck, she tripped, fell backward, and the machine struck her left elbow; and (6) that her feet got stuck in the mud, she fell backward, and the weedwhacker’s handle hit her left elbow.

On April 28, 2022, the parties proceeded to trial. Among the issues raised was whether or not the ‘violent act’ exception applied. Applicant did not testify, and the matter was submitted.

The WCJ found that McCain’s psyche injuries did not result from a “violent act,” and that, as a result, she was not entitled to an award of permanent disability for the psychiatric consequences of her physical injuries pursuant to Labor Code section 4660.1(c)(2)(A). Her reconsideration was denied in the panel decision of McCain v Wallis Construction Inc – ADJ11102338 (August 2022).

The WCAB panel noted that “is undisputed that her psyche injury was not a “direct” injury, and that it was a compensable consequence of her physical injuries.” In the case of Wilson v. State Cal Fire (2019) 84 Cal.Comp.Cases 393 (Appeals Board en banc) it was explaining that section 4660.1(c) applies to compensable consequence injuries. Thus, there is no dispute that section 4660.1 applies.

The parties dispute whether applicant may receive an increased permanent impairment rating under section 4660.1(c)(2)(A), and applicant bears the burden of proving that her psyche injury resulted from either being a victim of a violent act or direct exposure to a significant violent act.

Several panel decisions have followed the definition of a “violent act” for purposes of section 4660.1 as an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening.

Here, the WCJ found that applicant’s psyche injury was not compensable under section 4660.1(c)(2)(A) because the act of slipping and falling and being struck in the elbow by a weedwhacker was not a “violent act” within the meaning of the statute.

The WCAB panel agreed with the WCJ. “Significantly, since applicant did not provide testimony at trial, it is unclear exactly how the injury occurred, and the WCJ was unable to weigh the testimony and determine whether the event was of the type that would be considered a violent act.”

“Even accepting the version of events that were contained in QME Dr. Lopez’s report, the force of this incident cannot be characterized as either extreme or intense, and applicant did not lose consciousness after her fall and kept working after the incident, explaining that she “fully expected her symptoms to resolve promptly.’ ”

Applicant’s injuries are instead akin to those that we have previously determined were not the result of a violent act….”