ADJ10444379 · October 27, 2023

WCJ relied on insufficient medical evidence from Dr. Hyman for hypertension causation; medical opinion lacked adequate analysis and was not substantial evidence; remand required for further development or new examination.

WCJ failed to properly analyze all alleged employment events and their causation under Labor Code section 3208.3 and Rolda; credibility findings were flawed; remand required for proper analysis and findings.

From the decision · page 4In this case, the WCJ failed to properly perform the analysis set forth in section 3208.3 and as described in Rolda. First, the WCJ failed to find whether applicant's alleged psychiatric injury involved actual events of employment, i.e., injury AOE/COE, under section 3208.3(b)(1). In making this determination, the WCJ must go through all of the predicate events alleged in the history given to the QME(s), as well as the trial testimony and all other relevant record evidence. To the extent that any of the predicate events are contradicted, the WCJ should make express factual findings regarding each event and resolve any factual disputes. The WCJ should then determine which of the predicate events constitute actual events of employment and articulate this determination in a manner that satisfies sections 5313, 3208.3, Rolda,3 and Hamilton v. Lockheed Corp. (Hamilton) (2001) 66 Cal.Comp.Cases 473 (Appeals Board en banc).4

WCJ failed to analyze all alleged employment events and their causation under Labor Code section 3208.3 and Rolda.

Favours Applicant prevailed

This failure prevented proper determination of injury arising out of and occurring in the course of employment to psyche.

From the decision · page 4In this case, the WCJ failed to properly perform the analysis set forth in section 3208.3 and as described in Rolda. First, the WCJ failed to find whether applicant's alleged psychiatric injury involved actual events of employment, i.e., injury AOE/COE, under section 3208.3(b)(1). In making this determination, the WCJ must go through all of the predicate events alleged in the history given to the QME(s), as well as the trial testimony and all other relevant record evidence. To the extent that any of the predicate events are contradicted, the WCJ should make express factual findings regarding each event and resolve any factual disputes. The WCJ should then determine which of the predicate events constitute actual events of employment and articulate this determination in a manner that satisfies sections 5313, 3208.3, Rolda,3 and Hamilton v. Lockheed Corp. (Hamilton) (2001) 66 Cal.Comp.Cases 473 (Appeals Board en banc).4

WCJ's credibility findings were flawed as defense witnesses' inability to recall events did not refute applicant's claims.

Favours Applicant prevailed

Credibility assessment impacted the determination of actual events of employment for psychiatric injury.

From the decision · page 5At this juncture, we find it important to note that, in assessing whether an applicant has demonstrated an actual event of employment, the WCJ is clearly entitled to take the applicant's credibility into account. However, we are somewhat concerned with the WCJ's conclusion that applicant failed to provide a credible work history because he could not recall "exactly" when each event occurred and because his testimony was "refuted" by the testimony of defense witnesses who stated that they could not remember certain events at all. (Opinion on Decision, pp. 4-5.) Applicant argues, and we agree, that the defense witnesses' inability to recall the events in question does not "refute" applicant's claim that said events occurred, nor does it necessarily undermine applicant's credibility regarding these events.

Dr. Hyman's QME report lacked sufficient causation analysis and was not substantial evidence for hypertension causation.

Favours Applicant prevailed

Insufficient medical evidence prevented proper determination of injury arising out of and occurring in the course of employment to circulatory system and hypertension.

Applicant sustained a psychiatric injury predominantly caused by industrial factors; 43% caused by seven industrial incidents possibly good faith personnel actions; 22% by other industrial incidents; 35% by non-industrial incidents.

Provides detailed causation analysis relevant to psychiatric injury and good faith personnel action defense under Labor Code section 3208.3.

From the decision · page 2The parties used Michelle Conover, Ph.D., as the Panel Qualified Medical Evaluator (QME) to evaluate applicant's alleged psychiatric injury. Dr. Conover outlined 18 separate stressful incidents described by applicant during the psychiatric evaluation. In a supplemental QME Report dated May 13, 2019, Dr. Conover opined that applicant sustained a psychiatric injury that was predominantly caused by industrial factors. (Supplemental QME Report of Michelle Conover, May 13, 2019, p. 5.) With respect to causation, Dr. Conover opined that: 43% of applicant's psychiatric injury was caused by seven industrial incidents that "[could] be construed as `good faith' personnel actions by the trier of fact"; 22% of applicant's psychiatric injury was caused by seven other industrial incidents; and 35% of applicant's psychiatric injury was caused by four non-industrial incidents. (Id. at pp. 6-7.)

Applicant suffers from hypertension; family history is most significant cause; 40% of disability work related; report lacks sufficient causation analysis and is not substantial evidence.

Report insufficient for causation; medical opinion not substantial evidence for hypertension causation; remand for further development or new exam required.

McCoy

County of San Bernardino v. Workers' Comp. Appeals Bd. (McCoy) (2012) 203 Cal.App.4th 1469

Section 3208.3(h) precludes recovery for physical manifestations solely resulting from psychiatric injury due to good faith personnel actions.

From the decision · page 6We now turn to the WCJ's conclusion that applicant's claim for hypertension was barred by section 3208.3(h) pursuant to the logic set forth in County of San Bernardino v. Workers' Comp. Appeals Bd. (McCoy) (2012) 203 Cal.App.4th 1469 [77 Cal.Comp.Cases 219].) However, rather than discuss the case, the WCJ simply stated:

Labor Code

Labor Code section 3208.3

Requires multilevel analysis for psychiatric injury claims involving good faith personnel action defense.

From the decision · page 3As stated in the Opinion on Decision, but not in the F&O, the WCJ's decision to deny applicant's claim for benefits is ultimately based on the good faith personnel action defense, which is set forth in Labor Code section 3208.3.1 A multilevel analysis is required when a psychiatric injury is alleged and the defense of a lawful, nondiscriminatory, good faith personnel action has been raised under section 3208.3. This analysis was explained by the Appeals Board in Rolda v. Pitney Bowes (Rolda) (2001) 66 Cal.Comp.Cases 241 (Appeals Board en banc).)2

Rolda v. Pitney Bowes (2001) 66 Cal.Comp.Cases 241

Establishes multilevel analysis for psychiatric injury claims under Labor Code section 3208.3.

From the decision · page 3As stated in the Opinion on Decision, but not in the F&O, the WCJ's decision to deny applicant's claim for benefits is ultimately based on the good faith personnel action defense, which is set forth in Labor Code section 3208.3.1 A multilevel analysis is required when a psychiatric injury is alleged and the defense of a lawful, nondiscriminatory, good faith personnel action has been raised under section 3208.3. This analysis was explained by the Appeals Board in Rolda v. Pitney Bowes (Rolda) (2001) 66 Cal.Comp.Cases 241 (Appeals Board en banc).)2

Applicant's credibility was questioned by WCJ due to inability to recall exact dates and defense witnesses' failure to recall events did not refute applicant's claims.

From the decision · page 5At this juncture, we find it important to note that, in assessing whether an applicant has demonstrated an actual event of employment, the WCJ is clearly entitled to take the applicant's credibility into account. However, we are somewhat concerned with the WCJ's conclusion that applicant failed to provide a credible work history because he could not recall "exactly" when each event occurred and because his testimony was "refuted" by the testimony of defense witnesses who stated that they could not remember certain events at all. (Opinion on Decision, pp. 4-5.) Applicant argues, and we agree, that the defense witnesses' inability to recall the events in question does not "refute" applicant's claim that said events occurred, nor does it necessarily undermine applicant's credibility regarding these events.