Split WCAB Addresses Good-Faith Personnel Action Defense
Gooooooood morning dear readers!
Your humble blogger loves the smell of workers’ compensation litigation in the morning, and today is a magical day for certain. Christmas is just around the corner, New Years’ isn’t far behind, and in just a couple of weeks everyone will think themselves so clever for saying “hindsight is 2020, and now 2020 sure is in our hindsight!”
So, not unlike Soviet Santa who brings freezing children lumps of coal to great soviet cheers, I bring you a panel decision today reversing a “take nothing” of a psyche claim. But this isn’t just any case… this one is interesting to say the least. It is the split pane opinion in Munoz v. Department of Corrections.
Applicant, a case records analyst at a corrections facility, alleged a psychiatric claim as a result of her employment with the department of corrections. The PQME opined that the psychiatric condition was caused 35% by an e-mail to applicant that there would be a meeting (in all probability to follow up on a reprimand/corrective counseling) and 35% from hearing about her husband’s friend being attacked. Another 10% was assigned to receiving a reprimand.
The employer maintained that the psychiatric condition was barred by the non-discriminatory good-faith personnel action defense of Labor Code section 3208.3.
At trial, the WCJ agreed, only to have the WCAB majority split panel reverse on appeal! So what happened?
The WCAB panel held that under the en banc law set out by Rolda v. Pitney Bowes, Inc., the analysis goes as follows:
- Does the alleged psychiatric injury involve actual events of employment?
- Does competent medical evidence establish the required percentage of industrial causation?
- Were the actual events of employment personnel actions?
- Are those personnel actions lawful, nondiscriminatory, and made in good faith?
The parties did not dispute that the 10% original reprimand was a non-discriminatory good-faith personnel action, but what about the e-mail that triggered such anxiety? Does the email that there would be a meeting to follow up on a reprimand count as a non-discriminatory good faith personnel action?
The email telling applicant and her staff of an impending meeting did not include the details of what would be discussed at the meeting, but applicant suspected it would be for further reprimands. The email made her upset and anxious. Despite all this, the employer witnesses testified that the meeting was a general one to go over procedures, and not to hand out reprimands or further counseling.
Although applicant’s fears regarding the substance of the meeting were unfounded, they still had a damaging effect on her psyche, contributing to the industrial injury.
Well, the WCAB majority reasoned that a routine meeting is not a “personnel” action as contemplated by Rolda and the Labor Code, so a reaction to an email about a meeting or the meeting itself, such as in this case, cannot be the basis for the defense.
But, as your humble blogger learned in law school so many, many years ago – if you want to know what REALLY happened, read the dissent!
The dissenting voice cited County of Sacramento v WCAB (Brooks) and Bray v WCAB for the proposition that applicant’s subjective response to a good-faith, non-discriminatory personnel action is not the liability of the employer. In fact, the general holding in those cases is that the reaction to the action is a symptom of the injury, not the injury itself.
Accordingly, applicant’s stress, panic, anxiety, and worry after receiving the e-mail regarding a meeting were the symptoms of the psychiatric injury – the injury itself being not the e-mail, but the good faith, non-discriminatory personnel action to reprimand her for some misconduct.
What do you think, dear readers? What is the distinction between an applicant’s subjective response to a good faith, non-discriminatory personnel action and the actual action? Do subjective responses to events of employment qualify as “actual events of employment”?