The Court of Appeal recently handed down its ruling on whether or not an applicant’s claimed migraines are compensable.  Applicant initially proceeding on a claim of injury to the psyche, but understood very quickly that defendant had a fairly solid defense in the good-faith personnel action.  (Labor Code § 3208.3(h).)  In a monumental show of consistency and legitimacy of claim over “gaming the system,” applicant amended his application on the first day of trial to include migraines as a claimed injury.

3208.3(h) does not always work, as my wise and learned readers no doubt recall.  There are a lot of ways applicants attempt to slip around this broad and solid shield – including making regular efforts to use semantics with respect to what caused the injury.  It was complying with the good faith personnel action, not the communication of the action to the employee, after all.

In this case, applicant tried, with considerable success, to argue that his migraines were the result of a psychiatric injury.  Although the psychiatric injury itself, caused by “friction with his supervisor,” may be barred by the defense, the resulting migraines are not.

The workers’ compensation Judge awarded applicant compensation for the migraines, and the Workers’ Compensation Appeals Board denied defendant’s petition for reconsideration.  Most cases end here for a variety of reasons, and your perceptive blogger submits that it is most appropriate to applaud the County of San Bernardino, the employer in this case, for pressing on and petitioning the Court of Appeal for a writ of review.

One can not help but imagine that there was a spike in applicant’s migraines after the Court of Appeal decision came down, and I would therefore advise the Court of Appeal to retain a tort defense attorney, just in case.  No, migraines are not compensable when they are the result of a non-compensable psyche injury.

The Court of Appeal held “seldom are the effects of stress limited to injury to the psyche without resulting physical problems.”  The Court continued, “[i]t would be relatively easy for a claimant to avoid [the bar of 3208.3(h)] by asserting internal problems and symptoms, such as upset stomach, headache and sleeplessness, but not injury to the psyche per se.”

If I had a headache before reading this opinion, it has certainly cleared up – the Court of Appeal has given the defense community another brick to put in its wall.