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6 Months of Actual Service to Employer Pre-requisite for Psyche Claim

Welcome back, dear readers!  It’s finally 2015 – the long awaited date of everyone who ever watched the famous movie, Back to the Future, Part II.  In that wonderfully entertaining film from 1989, the story’s hero, Mr. Marty McFly, travels to 2015, where we encounter a sneak-peak of what fashion would eventually be like.  In case you’re wondering, this is us casual:

back to the future picture

and this is us in business attire:


Well, 2015 is looking good already!

Anywho, your humble blogger thought we’d start this year off with a straightforward and simple post.  In the recent writ denied case of Bracken v. Team Commercial Construction.  Applicant had sustained an injury all the way back in 1996 after a bit more than two months on the job.  He then was off work for about nine months, before returning to modified duty for a day and then going off work again.  Well, he was finally laid off in mid-June of 1997, with, effectively, a little less than two years on the books.

Applicant then claimed a psyche injury, but, as any defendant would in such a situation, defendant raised the 6-month employment rule of 3208.3(d), arguing that applicant was not employed for six months, because he actually worked less than six months, despite being “on the books” for almost two years.

Labor Code section 3208.3(d) specifically provides that a psyche claim requires that “the employee has been employed by that employer for at least six months.” Does being on the books mean being employed for the purposes of 3208.3?

Well, Wal-Mart Stores v. WCAB, a 2003 Court of Appeal case, held that “employment … mean[s] the performance of actual service for the employer.”  In other words, simply being on the books is not enough.  Accordingly, time spent on temporary disability is likewise not part of the six months.

Now, here’s a thought (or, more accurately, a stretch).  If six months of “performance of actual service for the employer” is the requirement, then what about seasonal work?  Weekend employment only?  Shouldn’t six months be converted into days, and those days of “actual service” be calculated?  An employee working two days a week would then have to wait longer before filing a psyche claim than one working five days.  Again, dear readers, just another crackpot thought.

Welcome to 2015!

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