Many years ago, I worked in a broom factory (not really, but go with the story).  We would carve our brooms by hand every day – it was a slow and painful process.  One day, the factory owner, Gus, decided to install fancy, shiny new machines that greatly increased the efficiency of the operation.  But the machines were new, and shiny, and scary – a lot of us took the retraining in stride, but one of my co-workers, Jasper, just couldn’t handle the new way things were being done.  And when the economy turned, and the broom factory fell on hard times, the lay offs began.

Jasper kept his job, but he just couldn’t handle the pressure of learning the new machinery and doing the work in a changing environment.  So what did Jasper do?  If your answer is anything other than filing a claim for injury to the psyche (and hypertension), including (1) additional retraining; (2) finding a different job with the broom factory; or (3) quitting and looking for a job with a more traditional broom factory, you probably are not an applicant’s attorney.

Arthur Ecker (The Tribune v. Workers’ Compensation Appeals Board, writ denied), worked for the Tribune as a circulations sales manager.  He claimed to have sustained injury to his psyche and circulatory system over an eleven month period in 2008, proceeding on a theory that the injury resulted from the stress of having to take on new job duties.

Those job duties, of course, were to use computers and Excel spreadsheets.  The Agreed Medical Evaluator and the primary treating physician found that “the requirements of the job were essentially beyond applicant’s capabilities.”

Defendant raised the good faith personnel action defense of Labor Code section 3208.3.  After all, decreases in circulation had lead to a 2/3rd reduction in staff and everyone had to cross-train in responsibilities.  Sadly, the Workers’ Compensation Judge, the WCAB and the Court of Appeal were not convinced by defendant’s arguments.

The WCJ wrote in his Report on Petition for Reconsideration, that he does not doubt the changes in applicant’s duties were not “inappropriate or improper [in] purpose.”  By the WCJ’s reasoning, it was the consequences of the changes that caused applicant’s injury.

By that rationale, when does section 3208.3 apply?  Your less-than-persuaded blogger reckons (as we used to say in the old broom factory) that if applicant’s psyche injury had resulted immediately upon hearing the news of his change in duties, the WCJ would have allowed the defense to stand.

In any case, fair readers, be on your guard against this creeping incursion into the defense of 3208.3.  Perhaps we will see a case with a different result and the force of binding authority soon, correcting this interpretation.