What the panel ordered
The Board grants reconsideration, rescinds the August 10, 2023 F&O, and returns the matter to the trial level for further proceedings and a new decision by the WCJ.
Applicant seeks reconsideration of the August 10, 2023 Findings and Order (F&O) denying her claim based on the six-month employment rule under Labor Code section 3208.3(d). The WCJ found applicant did not sustain injury arising out of employment and barred the claim. The WCJ's decision is reviewed for legal and evidentiary sufficiency.
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 WCJ erred in applying the six-month employment rule and in concluding the claim was barred without sufficient evidence of employment length and injury causation. The Board rescinded the F&O and remanded for further proceedings to develop the record.
From the decision · page 3We begin by noting that, as we read the Findings of Fact, it appears that the WCJ believed that a determination that applicant was not employed for six months meant that: 1) applicant's claim was barred by section 3208.3(d), and 2) applicant did not sustain injury AOE/COE. However, the latter is an incorrect reading of section 3208.3(d); that portion of the statute has nothing to do with whether an injury was industrial, i.e., AOE/COE. Additionally, injury AOE/COE was not an issue identified for determination at trial. Thus, the WCJ's finding that applicant did not sustain injury AOE/COE was unnecessary and lacked any legal basis.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant worked 181 days (5.95 months) from 04/21/2022 to 10/17/2022 according to documentary evidence, close to six months.
Favours Applicant prevailed
This fact showed substantial compliance with the six-month employment rule, undermining the WCJ's finding that the claim was barred for insufficient employment duration.
From the decision · page 2Based on the documentary evidence submitted by the parties, applicant's first date worked was on 04/21/2022 and her last date worked was 10/17/2022. This would
No medical evidence in record explaining causation or nature of injuries; only an off work slip without medical comment.
Favours Applicant prevailed
Without medical evidence on causation, the Board could not uphold the WCJ's finding that the claim was barred under section 3208.3(d).
From the decision · page 3There was no testimony and no medical reporting regarding the alleged injury to the abdomen, stress, and psych. The only medical evidence was an off work slip by Dr. Samuel Chan dated 10/18/22 (Applicant's Exhibit 1) which did not provide any comment as to any medical condition.
The WCJ incorrectly found no injury AOE/COE and barred claim based on six-month rule without proper legal basis or evidence.
Favours Applicant prevailed
This legal error required rescinding the F&O and remanding for further proceedings.
From the decision · page 3We begin by noting that, as we read the Findings of Fact, it appears that the WCJ believed that a determination that applicant was not employed for six months meant that: 1) applicant's claim was barred by section 3208.3(d), and 2) applicant did not sustain injury AOE/COE. However, the latter is an incorrect reading of section 3208.3(d); that portion of the statute has nothing to do with whether an injury was industrial, i.e., AOE/COE. Additionally, injury AOE/COE was not an issue identified for determination at trial. Thus, the WCJ's finding that applicant did not sustain injury AOE/COE was unnecessary and lacked any legal basis.
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.
Provided an off work slip dated 10/18/22 without comment on medical condition; no causation or injury explanation in record.
From the decision · page 3There was no testimony and no medical reporting regarding the alleged injury to the abdomen, stress, and psych. The only medical evidence was an off work slip by Dr. Samuel Chan dated 10/18/22 (Applicant's Exhibit 1) which did not provide any comment as to any medical condition.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 3208.3(d)
Labor Code section 3208.3(d) six-month employment rule for psychiatric injury claims
The Board clarified that the six-month employment rule applies to psychiatric injury claims and does not determine whether injury is industrial (AOE/COE). The burden to prove employment length is on defendant.
From the decision · page 2California Labor Code § 3208.3(d), provides in effect that no compensation shall be paid for an employee's psychiatric injury resulting from a "regular and routine employment event" unless the employee has been employed by the employer for at least six months. The requirement of six months' employment does not apply to employees whose psychiatric injuries are related to a physical injury or result from a "sudden and extraordinary employment condition."
What proof carried it
The evidence the panel weighed, by kind.
No witness testimony or substantial evidence on length of employment; only documentary evidence such as pay statements and time-punch audit; no medical evidence on causation.
From the decision · page 2On June 27, 2023, the parties proceeded to trial on the following single issue: "The periods applicant was employed pursuant to Labor Code Section 3208.3, as to whether the applicant worked for the employer for a six month period." (Minutes of Hearing (MOH), June 27, 2023, p. 2.) During trial, the WCJ admitted various records relating to applicant's employment period, including a pay statement history and a time-punch audit; however, the matter was submitted without witness testimony or the admission of any medical records explaining the nature of applicant's alleged injuries.
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About this page
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