Hello, dear readers!
Psyche injuries are curious things – and it’s always fun to try to unravel issues such as causation when it comes to psyche claims.
In the case of Clacher v. The Call Center, LLC (writ denied), applicant sustained orthopedic injuries after being struck to the ground by a co-worker. She claimed psychiatric injury as well orthopedic, but the psyche AME found that applicant’s report of her assault was not plausible, but if the assault occurred, then it was likely the cause of the current psyche problems.
At trial, the Workers’ Compensation Judge found applicant to be truthful, and to have credibly testified to the assault, and to the symptoms that manifested only after the assault. So, when defendant sought reconsideration, it challenged this very finding – after all, the AME in psyche didn’t believe applicant’s version of events, and thought she had pre-existing psychiatric problems.
The WCAB reversed, and the line of logic went as follows:
- Labor Code section 3208.3(b)(1) requires an employee to establish that actual events of employment were predominant as to all causes of the psyche injury;
- An employee alleging injury to the psyche resulting from a violent act requires only substantial cause rather than predominant cause (35-40% vs. 50%) (Labor Code section 3208.3(b)(3))
- Throughout the medical record, the Psyche AME affirmatively opined that the psychiatric injury was NOT caused by actual events of employment.
The issue that was of particular interest to your humble blogger was that of the role of each party in the process: the AME concluded that applicant was not a credible historian, and did not believe the work-assault caused her psychiatric injury. It appears, from the Lexis summary, that the AME did not even believe that a work assault took place.
On the other hand, the WCJ obviously did… finding the injured worker credible, as well as her telling of the events which lead up to her injury.
So, when the WCJ determines a lay fact, isn’t the expert witness, the AME in this case, to some extent required to adopt that fact and apply the medical expertise to it to reach a conclusion?
What if the situation was reversed? What if an AME had found an applicant to be credible, but an aggressive cross-examination lead the WCJ to conclude that applicant’s testimony (and statements) should be rejected as untruthful? Would the AME’s opinions as to the credibility of the injured worker trump those of the WCJ’s?
Ultimately, the WCAB seemed to find, in the Clacher case at least, that it did not appear possible for applicant to establish that the psyche injury was compensable when the medical record did not support such a finding.
A defense victory to start off your week, dear readers! Isn’t that a good thing?