Opinion
NOT TO BE PUBLISHED
WCAB Case No. OAK 0327145
McGuiness, P.J., Pollak, J. and Siggins, J.
Petitioner Juan Campos challenges the order of the Workers’ Compensation Appeals Board (the Board) reversing a workers’ compensation judge’s finding that the circumstances under which petitioner sustained an injury on February 2, 2005, constituted a “sudden and extraordinary employment condition” under Labor Code section 3208.3, subdivision (d). At the time petitioner had been employed by respondent Expert Tree Service for less than six months. The injury occurred when petitioner was suspended half way up an 80-foot tree that he was cutting and the trunk of the tree fell, hitting him in the chest and causing serious physical and psychiatric injury.
Labor Code section 3208.3, subdivision (a) states that, “psychiatric injury shall be compensable if it is a mental disorder which causes disability or need for medical treatment, and it is diagnosed pursuant to procedures promulgated....” Section 3208.3, subdivision (d) provides, “no compensation shall be paid pursuant to this division 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.... This subdivision shall not apply if the psychiatric injury is caused by a sudden and extraordinary employment condition.”
In reversing the workers’ compensation judge’s finding that petitioner’s injuries arose out of a sudden and extraordinary employment condition within the meaning of subdivision (d), so that he is not entitled to benefits for his psychiatric injury, the Board agreed that petitioner’s injury was caused by a sudden event. However, the Board concluded that “it cannot be characterized as an extraordinary event. Clearly, it is the very risk of such incidents that makes the type of employment in which [petitioner] was engaged a very expensive occupation to insure in workers’ compensation. [Petitioner] was engaging in his regular and routine employment activities at the time of his injury... [¶]... this incident cannot be considered an unusual, unexpected or extraordinary occurrence for a person whose occupation involves being suspended 40 to 50 feet in the air cutting down trees with a chain saw. Such accidents can happen to experienced professionals.”
The Board’s conclusion must be reversed because it is not supported by substantial evidence. (Lab. Code, § 5952, subd. (d).) In Matea v. Workers’ Comp. Appeals Bd. (2006) 144 Cal.App.4th 1435, the court considered the meaning of “a sudden and extraordinary employment condition” as the term is used to describe a compensable psychic injury in section 3208.3, subdivision (d). The court held that such an injury arises from an uncommon, unusual, or unexpected event of employment of a type that would naturally be expected to cause psychic disturbances even in diligent and honest employees. (Matea, supra, at pp. 1448-1449.) An employee must demonstrate that an employment condition is sudden and extraordinary by a preponderance of the evidence. (Ibid.)
Here, just as in Matea, “the record is sparse and the facts are few.” (Matea v. Workers’ Comp. Appeals Bd., supra, 144 Cal.App.4th at p. 1450.) But what evidence there is in the record shows that petitioner had been cutting trees for a long time, had never seen an incident like this happen before, and did not expect it to happen to him. Nevertheless, the Board found that “this incident cannot be considered an unusual, unexpected or extraordinary occurrence for a person whose occupation involves being suspended 40 to 50 feet in the air cutting down trees with a chain saw. Such accidents can happen to experienced professionals. It is one of the obvious hazards of the job.” Perhaps, but if so, there should be evidentiary support for these propositions in the record. There is none. Thus, we reverse the Board’s ruling that petitioner’s claim of injury to his psyche is barred under Labor Code section 3208.3, subdivision (d) because its conclusion is not supported by substantial evidence. (§ 5952, subd. (d).) We remand this cause to the Board for further consideration consistent with the views expressed in this opinion. (§ 5953; see also Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1037.)