SPECIAL RISK DOCTRINE

DEEMED NOT APPLICABLE.

A licensed vocational nurse volunteered to take a second shift ending at 10:00 pm. Upon finishing the second shift, he was traveling home when he was injured in a head-on automobile accident, with no recall of how the accident happened. He filed a claim for work comp benefits and asserted the "special risk" doctrine applied, while the defense denied the claim under the going and coming rule. The case proceeded to trial.

In Toby Lapesarde v. WCAB 2019 Cal. Wrk. Comp LEXIS1, the Court noted that per the California Supreme Court in General Ins. Co. v. WCAB (Chairez)(1976) 41 CCC 162, the special risk exception applies where: 1) but for the employment the worker would not have been at the location where the injury occurred; and 2) the risk must be distinctive from the general public. In this case, the Court determined the applicant was traveling on his normal route and therefore not at a unique location for work purposes (failed #1), and driving at night itself is not a distinctive risk not incurred by the general public (failed #2). Thus, the special risk exception did not apply and the claim deemed barred under the going and coming rule.

[COMMENT: Not really new law, but a nice reiteration and analysis of the Special Risk Doctrine Exception to the Going and Coming Rule.]

NO LEGAL APPORTIONMENT AGAINST 100% PD BASED UPON A CONCLUSIVE PRESUMPTION

A twenty-one year veteran workers' compensation defense attorney filed a psych claim which he asserted also aggravated his non-industrial Parkinson's Disease resulting in 100% disability. The WCJ agreed the applicant was 100% disabled, but awarded 66% PD based upon the industrial psych injury only, which was considered distinctly separate from the non-industrial Parkinson's Disease.

On reconsideration, the WCAB determined the psych injury had aggravated the Parkinson's Disease, resulting in a conclusively presumed 100% PD for a "brain injury" per L.C. 4662 (a)(4). Additionally, since the 100% PD is presumed conclusively correct, no apportionment is legally permitted. Ted Hirschberger v. Stockwell, Harris, Woolverton and Muehl 2018 Cal. Wrk. Comp. P.D. LEXIS 482.

[COMMENT: First, it seems more plausible the Parkinson's would have contributed to the psych injury than vice versa. Nevertheless, the premise of a "conclusive presumption" of 100% PD not being subject to apportionment is a legally logical outcome, not unlike a death case in which partial apportionment is invalid...it is all or nothing.]