WCDefenseCA

Happy Wednesday, dear readers, and to those of you suffering the pangs of hunger on this day of atonement, Gmar Tov!  Well, have no fear, dear readers, for your humble blogger is here to help pass the time.

So let’s talk about psychiatric injuries.  In the 90s, kids would always say things like “I believe you… psych!” which meant they didn’t really believe you. Easy to remember, hurts one’s feelings every time.  As great as this was on the schoolyard, it doesn’t translate so well as an affirmative defense in workers compensation.

Nevertheless, the defense community in California is truly blessed by an affirmative defense that rarely fails: the good faith, non-discriminatory, personnel action defense of Labor Code section 3208.3(h).  The basic idea is that when you’re tallying up the causation of a psyche injury, any part of the psychiatric condition caused by a good-faith, non-discriminatory, personnel action doesn’t get added to the stack of causation, which makes meeting the threshold of compensability a bit harder.

This was explored with a good explanation of the steps of analysis and process in the panel decision of Rodriguez v. County of Riverside.  Therein, the WCAB commissioners kicked a “take nothing” down to further develop the record.  But in so doing, provided some guidance for us lowly practitioners in the trenches in handling psyche claims.

The psyche QME in this case testified to causation of the injury as follows by breaking it down into various events and interactions at work, including “applicant’s refusal of a special project.”

The Panel first cites the case of Rolda v. Pitney Bowes Inc., a 2001 en banc case, explaining that the process should be followed thus:

The QME/AME (1) lists all factors of a psychological injury; (2) assigns a percentage of causation to each factor; (3) lists all factors causing psychological permanent disability; and (4) addresses the percentage of causation that each factor contributes to the permanent disability.

At that point, the WCJ determines whether each factor constituted an actual event of employment, and, if so, whether those factors that were actual events of employment were lawful, nondiscriminatory, good faith personnel actions.

If the remaining factors after filter 1 (actual events of employment) and 2 (not covered by the good faith personnel action defense) still meet the causation threshold of 51% or 35% (in cases of violent acts, etc.) then the claim is compensable (outside of any other affirmative defenses).

The panel further clarified a personnel action as “conduct attributable to management in managing its business including such things as done by one in authority to review, criticize, demote, transfer, or discipline an employee in good faith.”

The panel returned the case to the WCJ to have the medical-legal evaluator and the WCJ confirm to the process outlined above.

One thought your humble blogger has to share with you about this matter and many similar to it.  Words and phrasing matters a lot – and sometimes parties engage in symantics: it wasn’t the good faith personnel action that triggered my psyche injury… it was my reaction to the personnel action that caused it, so the defense doesn’t apply!

Well, don’t we all remember the Court of Appeal decision in County of Sacramento v. WCAB (Michael Brooks)?  This was a 2013 published decision wherein the Court of Appeal held that “The Board’s causation analysis treated Brook’s ‘feelings that he was unsupported by his supervisors’ as a cause of psychiatric injury, as did [the QME].  In reality, however, his feelings were the injury, or symptoms of the injury, not the cause of the injury.”

In short, a reaction to a good faith personnel action is not a “cause” of a psyche injury, but its symptoms.

Anyways, dear readers, just more to think about – I’ll see you here bright and early Friday morning!