ADJ10816406 · March 7, 2022

The WCJ and Appeals Board found that applicant met burden to prove actual events of employment were predominant cause of psychiatric injury, supported by credible testimony and substantial medical opinion of PQME Dr. Mednitsky. Defendant failed to prove lawful, nondiscriminatory, good faith personnel actions as substantial cause.

From the decision · page 2In order to establish the compensability of a psychiatric injury under Labor Code1 section 3208.3, an injured worker has the burden of establishing "by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury." (Lab. Code, § 3208.3(b)(1).) "Predominant as to all causes" means that "the work-related cause has greater than a 50 percent share of the entire set of causal factors." (Dept. of Corrections v. Workers' Comp. Appeals Bd. (Garcia) (1999) 76 Cal.App.4th 810, 816 [64 Cal.Comp.Cases 1356, 1360]; Watts v. Workers' Comp. Appeals Bd. (2004) 69 Cal.Comp.Cases 684, 688 (writ den.); Rolda v. Pitney Bowes, Inc. (2001) 66 Cal.Comp.Cases 241, 246 (Appeals Board en banc).)

Applicant's credible testimony and witnesses' testimony established actual events of employment causing psychiatric injury.

Favours Applicant prevailed

Supported finding that applicant met burden of proof for compensability of psychiatric injury.

From the decision · page 2Based on our review of the record, we agree with the WCJ that based on the credible testimony of applicant and applicant's witnesses and on the substantial psychological opinion of panel qualified medical examiner (PQME) Shari Mednitsky, Ph.D., applicant met his burden of proof that actual events were the predominant cause of the psychiatric injury.

Substantial psychological opinion of PQME Dr. Mednitsky that actual events of employment were predominant cause of psychiatric injury.

Favours Applicant prevailed

Provided medical evidence required to establish compensability under Labor Code section 3208.3.

From the decision · page 2Based on our review of the record, we agree with the WCJ that based on the credible testimony of applicant and applicant's witnesses and on the substantial psychological opinion of panel qualified medical examiner (PQME) Shari Mednitsky, Ph.D., applicant met his burden of proof that actual events were the predominant cause of the psychiatric injury.

Defendant failed to present documentary evidence or credible testimony to prove lawful, nondiscriminatory, good faith personnel actions as substantial cause.

Favours Applicant prevailed

Resulted in rejection of defendant's affirmative defense and supported award to applicant.

From the decision · page 9The employer has raised the defense of good faith personnel actions pursuant to labor code section 3208.3(h). It is defendant's burden to provide substantial evidence in support of their defense. In the present matter, defendant did not present any documentary evidence in support of their claim of good faith personnel actions. None of the alleged written personnel records or actions were offered, and appear nowhere in any of defendant's trial exhibits. Therefore, the WCJ had only the testimony of the various witnesses to rely upon in reaching his decision. After having had the opportunity to observe the demeanor of the various witnesses and consider conflicting versions of the facts, the WCJ has concluded that applicant's witnesses were much more credible, and therefore defendant has failed to establish by a preponderance of evidence, the existence of any good faith personnel actions.

Applicant's symptoms meet criteria for Major Depressive Disorder, Recurrent, Moderate with Industrial Aggravation. Actual events of employment are predominant cause of psychiatric injury. Specific incident represents substantial cause (35-40%) of Major Depressive Disorder, but whether it was a good faith personnel action is for trier of fact.

Dr. Mednitsky's May 8, 2018 report provides substantial psychological opinion supporting compensability of psychiatric injury due to actual events of employment.

From the decision · page 2Based on our review of the record, we agree with the WCJ that based on the credible testimony of applicant and applicant's witnesses and on the substantial psychological opinion of panel qualified medical examiner (PQME) Shari Mednitsky, Ph.D., applicant met his burden of proof that actual events were the predominant cause of the psychiatric injury.

Labor Code section 3208.3

Burden of proof for compensability of psychiatric injury under Labor Code section 3208.3 requires showing actual events of employment were predominant cause.

Applicant met burden by preponderance of evidence that actual events of employment were predominant cause of psychiatric injury.

From the decision · page 2In order to establish the compensability of a psychiatric injury under Labor Code1 section 3208.3, an injured worker has the burden of establishing "by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury." (Lab. Code, § 3208.3(b)(1).) "Predominant as to all causes" means that "the work-related cause has greater than a 50 percent share of the entire set of causal factors." (Dept. of Corrections v. Workers' Comp. Appeals Bd. (Garcia) (1999) 76 Cal.App.4th 810, 816 [64 Cal.Comp.Cases 1356, 1360]; Watts v. Workers' Comp. Appeals Bd. (2004) 69 Cal.Comp.Cases 684, 688 (writ den.); Rolda v. Pitney Bowes, Inc. (2001) 66 Cal.Comp.Cases 241, 246 (Appeals Board en banc).)

Rolda v. Pitney Bowes, Inc. (2001) 66 Cal.Comp.Cases 241 (Appeals Board en banc)

Multilevel analysis for compensability of psychiatric injury when good faith personnel action defense is raised.

WCJ and Appeals Board applied Rolda multilevel analysis to determine compensability and causation.

From the decision · page 2In Rolda, we set forth the multilevel analysis for determining if a claimed psychiatric injury is compensable when the affirmative defense of lawful, nondiscriminatory, good faith personnel action has been raised: "The WCJ, after considering all the medical evidence, and the other documentary and testimonial evidence of record, must determine: (1) whether the alleged psychiatric injury involves actual events of employment, a factual/legal determination; (2) if so, whether such actual events were the predominant cause of the psychiatric injury, a determination which requires medical evidence; (3) if so, whether any of the actual employment events were personnel actions that were lawful, nondiscriminatory and in good faith, a factual/legal determination; and (4) if so, whether the lawful, nondiscriminatory, good faith personnel actions were a "substantial cause" of the psychiatric injury, a determination which requires medical evidence." (Rolda, supra, 66 Cal. Comp. Cases at pp. 245-247.)

Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104

Due process requires notice before depriving a party of substantial rights; time to act on petition tolled due to Appeals Board error in failing to act within statutory time.

Appeals Board tolled time to act on petition due to misplaced file, denying burden on party.

From the decision · page 1Preliminarily, we note that a petition is generally considered denied by operation of law if the Appeals Board does not grant the petition within 60 days after it is filed. (Lab. Code, § 5909.) However, we believe that "it is a fundamental principle of due process that a party may not be deprived of a substantial right without notice...." (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493].) In Shipley, the Appeals Board denied the applicant's petition for reconsideration because it had not acted on the petition within the statutory time limits of Labor Code section 5909. This occurred because the Appeals Board had misplaced the file, through no fault of the parties. The Court of Appeal reversed the Appeals Board's decision holding that the time to act on applicant's petition was tolled during the period that the file was misplaced. (Shipley, supra, 7 Cal.App.4th at p. 1108.) Like the Court in Shipley, "we are not convinced that the burden of the system's inadequacies should fall on [a party]." (Shipley, supra, 7 Cal.App.4th at p. 1108.)

Credible testimony of applicant and applicant's witnesses supporting the occurrence of actual events of employment causing psychiatric injury.

From the decision · page 2Based on our review of the record, we agree with the WCJ that based on the credible testimony of applicant and applicant's witnesses and on the substantial psychological opinion of panel qualified medical examiner (PQME) Shari Mednitsky, Ph.D., applicant met his burden of proof that actual events were the predominant cause of the psychiatric injury.

WCJ's credibility determinations given great weight due to opportunity to observe demeanor of witnesses; no substantial evidence to reject credibility.

From the decision · page 6We have given the WCJ's credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determinations. (Id.)