ADJ9920866 · December 24, 2021

The WCAB found that the WCJ's original decision lacked sufficient medical evidence to support the finding that the injury did not arise out of employment. The psychiatric QME's opinion was not substantial evidence due to misunderstanding of cumulative injury law. The matter was remanded for further proceedings to clarify events and obtain further medical evidence.

From the decision · page 1Applicant seeks reconsideration of the Findings and Order (F&O), issued by the workers' compensation administrative law judge (WCJ) on October 21, 2019, wherein the WCJ found in pertinent part that applicant's injury did not arise out of or in the course of her employment (AOE/COE).

Psychiatric QME Dr. Paul misunderstood cumulative injury law and incorrectly identified two separate injuries instead of a single cumulative injury.

Favours Applicant prevailed

This misunderstanding led to the medical reports not constituting substantial evidence to support the WCJ's original finding.

From the decision · page 8It is apparent that he misunderstood the legal definition of a cumulative injury and misunderstood that a number of events occurring within a continuous period of time could constitute a single cumulative injury and misunderstood that the effects of an injury may not constitute a separate injury. Thus, his reports do not constitute substantial medical evidence. Accordingly, once the WCJ has clarified the events of employment and the period of injury, the record must be further developed by way of further medical evidence to determine whether the events of applicant's employment were the predominant cause of her injury.

Applicant's testimony and co-worker's testimony established that actual events of employment occurred, including stressful interactions and investigation regarding alleged misrepresentation to court.

Favours Applicant prevailed

Supports the first prong of the Rolda analysis that actual events of employment were involved.

There was no evidence supporting defendant's contention that applicant's injury was caused by lawful, nondiscriminatory, good faith personnel actions.

Favours Applicant prevailed

Lack of evidence on personnel actions affected the compensability determination.

From the decision · page 9which resulted in applicant feeling "complicit in lying to an officer of the court." However, it is unclear from applicant's testimony at trial how or if her position changed after August 2014, and defendant presented no evidence that changes had occurred. Accordingly, at this juncture, it appears that the evidence in the record does not support defendant's contention that applicant's injury was caused by personnel actions, that were lawful, nondiscriminatory, and made in good faith. (See Larch (Fleming) v. Contra Costa County (1998) 63 Cal.Comp.Cases 831, 833 [defining a personnel action as conduct either by or attributable to management, which includes actions taken by someone who has the authority to "review, criticize, demote, transfer or discipline an employee in good faith"].)

Identified two separate psychiatric injuries caused by actual events of employment, predominant as to all causes; however, misunderstood cumulative injury law, so reports not substantial evidence.

Misunderstood legal definition of cumulative injury and that multiple events in a continuous period can be a single cumulative injury; reports lack substantial evidence.

From the decision · page 2On September 13, 2016, September 5, 2018, and November 30, 2018, applicant was evaluated by psychiatric qualified medical examiner (QME) Robindra Paul, M.D., (Exhibit AA, Report of Robindra Paul, M.D., dated September 13, 2016; Exhibit BB, Report of Robindra Paul, M.D., dated September 5, 2018; Exhibit CC, Report of Robindra Paul, M.D., dated November 30, 2018.)

Labor Code Section 3208.3

Labor Code Section 3208.3 requires showing by preponderance of evidence that actual events of employment predominantly caused psychiatric injury, unless employer proves lawful, nondiscriminatory, good faith personnel actions substantially caused injury.

Applied to determine industrial causation of psychiatric injury and personnel action defense.

From the decision · page 6Labor Code Section 3208.3 states that in order to establish industrial causation of a psychiatric injury, an injured worker must show by a preponderance of the evidence that actual events of employment predominantly caused the psychological injury.2 (Lab. Code, § 3208.3(b)(1).)3 However, it also provides that a claim for psychiatric injury will not be compensable if an employer proves that the psychiatric injury was substantially caused by lawful, nondiscriminatory, good faith personnel actions. (Lab. Code, § 3208.3(h).)4

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

Rolda v. Pitney Bowes, Inc. (2001) 66 Cal.Comp.Cases 241 (Appeals Board en banc) requires a multilevel analysis for industrial psychiatric injury claims with personnel action defense.

Applied to guide analysis of psychiatric injury and personnel action defense.

From the decision · page 6A multilevel analysis is accordingly required when an industrial psychiatric injury is alleged and the employer raises the affirmative defense of a lawful, nondiscriminatory, good faith personnel action. (Rolda v. Pitney Bowes, Inc. (2001) 66 Cal.Comp.Cases 241 (Appeals Board en banc) (Rolda).) After considering all the medical evidence, and the other documentary and testimonial evidence of record, the WCJ must determine:

Applicant's testimony and co-worker's testimony established that actual events of employment occurred as described, including stressful interactions and investigation regarding alleged misrepresentation to court.