WCDefenseCA

Happy Thursday, dear readers (or, if you like, pretend it’s Wednesday and this blog post is not one day late)!

Your humble blogger grew up in a world that prominently featured the lovable Nintendo character, Kirby.  Kirby, presumably a sentient marshmallow, could obtain the powers of his enemies by inhaling them, and go about his merry day.

But, today, I am not here to tell you of Kirby the marshmallow, but rather Kirby, the case of Kirby v. Contra Costa Water District.

Therein, applicant claimed to have sustained a psyche injury related to work under the supervision of two of defendant’s supervising employees.  The PTP and the Psyche QME both recommended a change in department to avoid a “deleterious effect on his psyche.”

Naturally, defendant raised the affirmative defense of good faith personnel action, arguing that since the psyche claim was at least substantially (if not totally) caused by a non-discriminatory, good faith personnel action as contemplated by Labor Code section 3208.3(h), the claim was not compensable.

At trial, the witnesses provided the basis for the trial judge to conclude that 75% of the cause of the psychiatric injury was actual events of employment, and not a good faith personnel action.

The report and recommendation, after citing the entire text of the John Godfrey Saxe poem regarding a small number of blind men describing an elephant, (“[s]o, oft in theological wars, the disputants, I ween, tread on in utter ignorance, of what each other mean, and prate about the elephant, not one of them has seen!”), rejected defendant’s argument that the psychiatric injury, if there was one, was due to applicant’s misperceptions of work events, rather than the actual work events.  As your humble blogger’s favorite example goes, “well, he asked me for a glass of water so what he really means is that he wants me to drown.”

However, as the applicant credibly testified to specific events, and many of them, that occurred throughout the course of his employment, and these were not denied by the defense witnesses, there seemed sufficient evidence to find that actual events of employment caused the injury.

In particular, the WCJ noted that, based on the medical-legal evidence, the “good faith personnel actions” don’t make up nearly enough of the causation to warrant the defense; most of it being harassment from subordinate employees.

From your humble blogger’s own experience, the difference in accounts between the facts and history of employment relationships can sometimes lead one to believe that these are two separate cases.  Employers and employees remember (or claim to remember) things very differently, and sometimes it really is an issue of credibility.

Fortunately, this day in age allows more and more of these instances to be electronically recorded through e-mails.  An injured worker need only document the bad things that happen with an e-mail to HR to complain, and there exists an almost permanent paper trail.  Perhaps in some cases, the absence of such written complaints should be read as evidence of absences [of those events].

In any case, the good faith personnel defense is not, unfortunately, a panacea for all industrial psyche claims.  Tolerating harassment by subordinates is not, necessarily, a good faith personnel action.