Hello dear readers!
There’s a case making a bit of buzz around our little bee-hive of workers’ compensation, and the sweet, sweet honey is that good faith personnel actions aren’t the might bears we thought they were… I’m out of bee analogies, folk – leave yours in the comments.
Anyways, the case going around is Ferrell v. County of Riverside where the WCAB panel held that good faith personnel actions, as contemplated by Labor Code section 3208.3(h), aren’t just any personnel activities, but are more related to specific interactions between management and employees.
In Ferrell, the employer needed to consolidate its workforce and so applicant, along with her entire department, was transferred to a different department, where they became probationary employees, despite a tenure of more than five years. She had a new director which she apparently didn’t like, and had to share a car instead of having one assigned to her individually. Other equipment was pooled and restricted as well.
She claimed this caused her stress and she sought treatment, but was eventually laid off and settled her workers’ compensation case. The Ferrell opinion that we’ve got to work with is because a lien claimant sought reimbursement for the treatment provided to Ms. Ferrell.
Defendant raised the good faith personnel action and lost at trial, then promptly sought reconsideration. The WCJ’s reasoning that the budgetary needs of the employer that lead to stressful work conditions were not “personnel actions” as contemplated by Labor Code section 3208.3. The panel opinion agreed that “[t]he distinction between the effect of working conditions, and the effect of an action directed towards an individual’s employment status” is what made this claim compensable.
Your humble blogger would respectfully direct his enlightened readers to the Court of Appeal opinion in Michael Brooks v. County of Sacramento. Therein, the psyche AME found that an internal affairs investigation made up 1/3rd of the cause of applicant’s psyche claim, and another 1/3rd was from Mr. Brooks’ feelings about his lack of support from his supervisors during the investigation. The Court of Appeal ruled that Mr. Brooks’ “feelings were his injury, or symptoms of the injury, not the cause of the injury.”
In this case, certainly some portion of the psyche claim was related to the actual working conditions which can be stressful. After all, stressful jobs cause stress, and stress can be a compensable injury. But some of the other factors involved here, as per the WCJ’s report, appear to be reactions to good faith personnel actions. For example, the transfer of employees (rather than simply laying them off) is a good faith personnel action. As is having to place employees recently transferred on probationary status. As is any reaction to the management decisions of her new director.
The Brooks opinion tells us that a subjective reaction to a good faith personnel action is part of that action. How much of any psyche claim is going to be subjective reactions to good faith personnel decisions, and how much will be caused by general stressful conditions?