DANA MCKEE, Applicant
v.
AEROTEK, INC.; ALLEGIS, INC.; ACE AMERICAN INSURANCE COMPANY, Defendants
Adjudication No. ADJ12386691
California Workers Compensation Decisions
Workers’ Compensation Appeals Board State Of California
July 22, 2021
Sacramento
District Office
OPINION
AND ORDER DENYING PETITION FOR
RECONSIDERATION
KATHERINE WILLIAMS DODD, COMMISSIONER
We have
considered the allegations of defendant's Petition for
Reconsideration, applicant's answer and the contents of
the report of the workers' compensation administrative
law judge (WCJ) with respect thereto. Based on our review of
the record, for the reasons stated in the WCJ' s report,
which we adopt and incorporate, and discussed below, we will
deny reconsideration.
The
dissent concludes that this injury is not sudden and
extraordinary under Labor Code section 3208.3(d) because
applicant's injury as a result of walking off a loading
dock was not uncommon, unusual and unexpected. As discussed
by the WCJ in his Report, there are cases where an injury
from falling was found not to be sudden and extraordinary.
(See Bayanjargal v. Workers' Comp. Appeals Bd.
(2006) 71 Cal.Comp.Cases 1829 (writ den.) [roofer slipping
and falling off a roof was not extraordinary because it was
an ordinary risk of the job]; State Comp. Ins. Fund v.
Workers' Comp. Appeals Bd. (Garcia) (2012) 204
Cal.App.4th 766 [77 Cal.Comp.Cases 307] [an avocado picker
falling from a ladder was not extraordinary]; Travelers
Casualty & Surety Co. v. Workers' Comp. Appeals Bd.
(Dreher) (2016) 246 Cal.App.4th 1101 [81 Cal.Comp.Cases
402] [live-in maintenance supervisor's slip-and-fall on
rain-slicked concrete while walking between the complex's
buildings was not extraordinary].) In those cases, the
employees were engaged in the type of work where an injury
from a fall was deemed an ordinary risk of their occupation,
e.g., a roofer may fall off the roof or an avocado picker on
a ladder may fall off the ladder. These risks were inherent
to the employees' work and therefore were not uncommon,
unusual or unexpected employment conditions.
In this
matter, applicant was employed as a nurse case manager. This
position was an office job working at a desk with a computer
and phone. Applicant was injured when she fell off a loading
dock outside the employer's building while trying to walk
to the cafeteria. She testified that being on the loading
dock would not be part of any job she would be doing for
defendant and that she did not receive any safety training or
protocols about walking around the loading dock.
Falling
in the manner and place that applicant did cannot be
considered an ordinary risk of her job as a nurse case
manager. The loading dock was not part of applicant's
anticipated work area. Nothing in her administrative-type job
duties would necessitate performing work using the loading
dock. This was not a routine physical injury or the result of
a routine employment event that all employees who work for
the same employer in this occupation may experience or expect
within the first six months of their employment. (See
Matea v. Workers' Comp. Appeals Bd. (2006) 144
Cal.App.4th 1435, 1449 [71 Cal.Comp.Cases 1522]
[sudden and extraordinary employment conditions are those
events "that would naturally be expected to cause
psychic disturbances even in diligent and honest
employees"].) That the incident occurred due to
applicant's inattention introduces an element of blame
for how the injury occurred, which...
