What the panel ordered
The Board rescinded the August 22, 2021 Findings and Award and substituted a new Findings and Award finding applicant sustained a specific industrial injury to his psyche on June 25, 2018. Applicant is entitled to all workers' compensation benefits including medical treatment. All other issues are deferred. The matter is returned to the trial level for further proceedings.
Defendant sought reconsideration of the WCJ's Findings of Fact and Award issued on August 22, 2021, which found applicant sustained an industrial injury to his psyche through a cumulative period ending June 25, 2018. The WCJ filed a Report recommending denial of reconsideration. The Board rescinded the prior Findings and Award and issued a new Findings and Award clarifying the injury was specific, not cumulative.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The Board found the fentanyl exposure incident was an actual event of employment because it arose out of applicant's working relationship with coworkers, satisfying the legal definition.
From the decision · page 6Clearly, the coworkers being exposed to fentanyl is an `event', in that it took place. Furthermore, it is an event that arose out of employment as these are applicant's coworkers and the interactions and relationships with coworkers are integral to one's employment. While we do not suggest that every interaction with a coworker arises out of and is within the course of employment; here, the event was the near-death experiences of two coworkers while performing their job. This event clearly arises out of employment. Accordingly, the fentanyl event is an actual event of employment.
The Board held that amending the pleadings to conform to proof does not violate the statute of limitations and that the burden of proof on limitations rests with defendant.
From the decision · page 62. Amending the Pleadings and the Statute of Limitations Next, defendant argues that applicant's amending the pleadings to conform with the proof violates the statute of limitations. We do not agree. The running of the statute of limitations is an affirmative defense, and therefore, the burden of proof as to whether an application for adjudication is barred by the statute of limitations rests with defendant, (§ 5409, 5705; see City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal. App. 3d 467, 471 [209 Cal. Rptr. 463, 50 Cal. Comp. Cases 53].) The limitations period for which a claim must be filed is the later of (1) one year from the date of injury, (2) one year from the last provision of disability payments per Labor Code sections 4650 et. seq., or (3) one year from the last provision of medical benefits. (Ibid.) Labor Code section 5709 states that "No informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision, award, or rule made and filed as specified in this division..." (§ 5709.) Failure to comply with the rules as to details is not jurisdictional.
The Board found the injury was specific to a single event (the 2018 fentanyl incident) rather than cumulative, based on the QME's predominant causation opinion.
From the decision · page 8The QME's reporting establishes predominant causation to a single event, the 2018 fentanyl incident. This is an injury that occurred as a result of one incident. Thus, it is specific and not cumulative.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The 2018 fentanyl incident was found to be an actual event of employment.
Favours Applicant prevailed
This finding established the compensability of the psychological injury as it arose out of employment.
From the decision · page 6Clearly, the coworkers being exposed to fentanyl is an `event', in that it took place. Furthermore, it is an event that arose out of employment as these are applicant's coworkers and the interactions and relationships with coworkers are integral to one's employment. While we do not suggest that every interaction with a coworker arises out of and is within the course of employment; here, the event was the near-death experiences of two coworkers while performing their job. This event clearly arises out of employment. Accordingly, the fentanyl event is an actual event of employment.
The QME's report established predominant causation to the 2018 fentanyl incident as a specific injury.
Favours Applicant prevailed
This supported the Board's decision to rescind the cumulative injury finding and find a specific injury.
From the decision · page 8The QME's reporting establishes predominant causation to a single event, the 2018 fentanyl incident. This is an injury that occurred as a result of one incident. Thus, it is specific and not cumulative.
Amending the pleadings to conform to proof does not violate the statute of limitations.
Favours Applicant prevailed
This allowed the Board to consider the amended application despite the timing.
From the decision · page 62. Amending the Pleadings and the Statute of Limitations Next, defendant argues that applicant's amending the pleadings to conform with the proof violates the statute of limitations. We do not agree. The running of the statute of limitations is an affirmative defense, and therefore, the burden of proof as to whether an application for adjudication is barred by the statute of limitations rests with defendant, (§ 5409, 5705; see City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal. App. 3d 467, 471 [209 Cal. Rptr. 463, 50 Cal. Comp. Cases 53].) The limitations period for which a claim must be filed is the later of (1) one year from the date of injury, (2) one year from the last provision of disability payments per Labor Code sections 4650 et. seq., or (3) one year from the last provision of medical benefits. (Ibid.) Labor Code section 5709 states that "No informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision, award, or rule made and filed as specified in this division..." (§ 5709.) Failure to comply with the rules as to details is not jurisdictional.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Opined that applicant suffered a compensable psychiatric injury due to aggravation of pre-existing PTSD predominantly caused by industrial factors, specifically the 2018 fentanyl incident.
The QME's report established predominant causation to the 2018 fentanyl incident as a specific injury rather than cumulative.
From the decision · page 4Dr. Heckman opined that the causation of the aggravation was predominantly industrial as follows:
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Rolda v. Pitney Bowes, Inc. (2001), 66 Cal.Comp.Cases 241 (Appeals Board en banc)
Psychological injury causation and compensability under Labor Code section 3208.3 and the Rolda decision
Evaluator must list causative factors and percentages; injury must be caused predominantly by actual events of employment to be compensable.
From the decision · page 51. Actual Events of Employment In Rolda v. Pitney Bowes, Inc. (2001), 66 Cal.Comp.Cases 241, 245-246 (Appeals Board en banc), we addressed the factors that a psychological evaluator must consider in opining on causation of psychological injury and disability under section 3208.3. Per Rolda, the evaluator is required to list all factors causing psychological injury, address the percentage of causation that each factor contributes to psychological injury, list all factors causing psychological permanent disability, and address the percentage of causation that each factor contributes to permanent disability. Once the evaluator issues a Rolda compliant report, the WCJ should then determine whether the alleged injury involved actual events of employment, and whether each actual event of employment constituted a lawful, non-discriminatory, good faith personnel action. (Cal. Lab. Code, § 3208.3(h).)1 If the psychological injury is predominantly caused (51% or more) by actual events of employment (or 35% or more in cases of injury caused by violent act or exposure to a violent act), the psychological injury is compensable, unless the injury is substantially caused by lawful, nondiscriminatory, good faith personnel actions, in which case the injury is not compensable. (§ 3208.3.) An 'actual event of employment' has been defined by the Court of Appeals as follows:
Definition of 'actual event of employment' requiring the event to be something that takes place and arise out of the employment relationship
The event must be an occurrence in the employment relationship and arise from the working relationship with the employer.
From the decision · page 5First, the factor must be an "event"; i.e., it must be "something that takes place" (American Heritage Dict. (4th ed. 2000) p. 616) in the employment relationship. Second, the event must be "of employment"; i.e., it must arise out of an employee's working relationship with his or her employer.
Rubio v. Workers' Comp. Appeals Bd. (1985) 165 Cal. App. 3d 196
Statute of limitations and amendment of pleadings under Labor Code sections 5409, 5705, 5709 and case law Rubio
Amendments to pleadings to conform to proof do not violate statute of limitations; burden of proof on limitations rests with defendant.
From the decision · page 62. Amending the Pleadings and the Statute of Limitations Next, defendant argues that applicant's amending the pleadings to conform with the proof violates the statute of limitations. We do not agree. The running of the statute of limitations is an affirmative defense, and therefore, the burden of proof as to whether an application for adjudication is barred by the statute of limitations rests with defendant, (§ 5409, 5705; see City of Fresno v. Workers' Comp. Appeals Bd. (Johnson) (1985) 163 Cal. App. 3d 467, 471 [209 Cal. Rptr. 463, 50 Cal. Comp. Cases 53].) The limitations period for which a claim must be filed is the later of (1) one year from the date of injury, (2) one year from the last provision of disability payments per Labor Code sections 4650 et. seq., or (3) one year from the last provision of medical benefits. (Ibid.) Labor Code section 5709 states that "No informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision, award, or rule made and filed as specified in this division..." (§ 5709.) Failure to comply with the rules as to details is not jurisdictional.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony and QME's opinion
From the decision · page 6Defendant next argues that the WCJ improperly relied upon Exhibits 25, 26 and 27, which were news articles related to the 2018 fentanyl incident. Defendant objected to these exhibits as being irrelevant, which the WCJ overruled. Defendant appears to argue that the WCJ used these news articles to establish applicant's injury was industrial. This does not appear to be the case. However, to be clear, the finding of industrial injury in this matter is based upon applicant's testimony and the opinions of the QME.
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About this page
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