Eureka!  No, dearest readers, your humble blogger has yet to strike gold, nor has he found anything all too exciting, except of course, a panel decision from that northern Board – Eureka.  The Workers’ Compensation Appeals Board recently reviewed a decision of the workers’ compensation Judge in Eureka in the case of Donna Larson v. State of California, Department of Corrections.

It appears that the main issue on review is the method of analysis with respect to (1) applicant’s claim of an injury to the psyche; and (2) applicant’s claim to discrimination in violation of Labor Code section 132a.

Applicant worked as an accounting supervisor and, after a worker was transferred laterally to be under her supervision, she began to have what can only be described as personality conflicts with him.  She accused him of sexual harassment, a charge which appears to be unsubstantiated.  He accused her of unfair labor practices for penalizing him for the time he spent as a union representative.

In any case, her complaints were investigated by her supervisors but were eventually dismissed.  She didn’t take this very well and apparently this contributed to her alleged psyche injury.  Some of my readers may recall a similar situation, in the case of County of Sacramento v. WCAB (Michael Brooks, writ denied) in which a supervisor claimed a psyche injury because his complaint about a subordinate did not result in a sufficient reprimand.

Intertwined with applicant’s psyche claim was applicant’s 132a claim.  Defendant argued that the facts underlying the 132a claim contributed to the psyche claim, a finding echoed by the WCJ.  However, defendant also argued that the termination of applicant’s employment had a business necessity defense, which was supported by witness testimony as to the employer’s workload and applicant’s one-year absence.

So, if applicant’s termination of employment was a “lawful, nondiscriminatory, good faith personnel action” as set out in Labor Code section 3208.3(h), and that termination was one of the causes of the psychiatric injury (Labor Code section 3208.3(b)), doesn’t that get the employer off the hook for the psyche claim?

Well, the WCAB relied on the en banc decision in the case of Rolda v. Pitney Bowes (2001) 66 Cal.Comp.Cases 241 (2001), reasoning that for a finding of a psyche injury, a competent physician must take a history of all events contributing to the alleged injury and then make a determination as to whether work events were at least 50% the cause of each individual event.  Then, the physician must determine the percentage of causation attributed to lawful, nondiscriminatory, good faith personnel actions.

The WCJ must determine the psyche injury involves actual events of employment, whether those events were the predominant cause of the psyche injury, and whether any of those events were lawful personnel actions.   Finally, the WCJ must determine if those lawful personnel actions were a substantial cause of the psyche injury.

With respect to the 132a claim, the WCAB held that the Lauher case raised the standard of finding a 132a violation by requiring a worker to show not only conducted by the employer detrimental to the employee, but also that the conduct was specifically targeted towards the employee because of the industrial nature of the injury.  In this case, the defendant presented a business necessities defense.

The matter was returned to the WCJ to prepare findings that conform the outlined analysis for both a psyche injury and a 132a claim.

From the looks of it, however, defendant is in a good position with adequate defenses.  After all, if applicant had hurt her leg skiing and had been gone for a year while the papers built up on her vacant desk, wouldn’t the employer have acted the same way?

Time will tell…