Defendants can use a successful good-faith personnel action defense to fight compensability of body parts that emanated from an alleged psychological injury, thanks to a 2012 published decision from the 4th District Court of Appeal.

John P. Kamin

Twelve years after a California appellate court issued its decision in County of San Bernardino v. WCAB (McCoy), it remains good law today. The case stands for the proposition that the good-faith personnel action defense can apply to more than just psych injuries when the following circumstances occur:

• The applicant has suffered a psych injury.
• The psych injury is barred by LC 3208.3’s good-faith personnel action defense.
• The psych injury was the sole work-related cause of the physical injury.

In McCoy, a sheriff’s deputy had alleged that a psych injury caused migraine headaches as well. The employer raised a good-faith personnel action defense against the psych injuries and contended that it applied to the migraines as well.

The Workers’ Compensation Appeals Board ruled that even though the good-faith personnel action defense was successful, it did not bar compensability for the migraine headaches because they are not psychological injuries. The 4th DCA annulled the WCAB’s ruling and determined that the good-faith personnel action defense barred the migraines.

The appellate justices reasoned that because the migraines were caused by on-the-job stress, psychological injuries caused by on-the-job stress were barred by the good-faith personnel action defense, which barred recovery for physical injuries that were directly and solely caused by psych injuries.

Other examples

The McCoy decision is a perfect test case because it’s pretty easy to understand how a psych claim could lead to more headaches, even if they are migraines. But what other body parts do we see applicants alleging as sequelae to psych?

The most common sequelae we see pleaded are cardiology complaints, such as hypertension or heart attack cases. After that, it’s other internal issues, such as diabetes.

To take it a step further, I have even defended cases where applicants alleged alopecia and skin disorders emanating from psych. The good news is that in all those cases, McCoy can be used to defend them.

The defense

For those newer to comp, understanding the elements of a good-faith personnel action defense is essential to defend against psych claims. The defense is commonly known as a “Rolda” defense, which refers to the WCAB’s en banc decision in Rolda v. Pitney Bowes.

In that case, the WCAB created a multilevel analysis to determine whether the good-faith personnel action defense barred a psych injury. The analysis goes as follows:

• Does the alleged psych injury involve actual events of employment?
• If so, does competent medical evidence support the percentage of industrial causation?
• If those two conditions are met, the judge must decide if any of the actual employment events are indeed personnel actions. If they are, move to the next step.
• If those events were personnel actions, the judge must decide whether the actions were lawful and made in good faith. If they were made in good faith, move on to the last step.
• If all of the above criteria are met, is there competent medical evidence showing that these events were a substantial cause (at least 35%-40%) of the psych injury?

If all five criteria are satisfied, a defendant has a viable good-faith personnel action defense. How does one prove this? By getting a psych QME to perform an adequate Rolda analysis and presenting employer evidence (documents, witness testimony) that the personnel actions were made in good faith.

In my experience, this defense most frequently occurs when the applicant does not like or get along with their co-workers for trivial reasons. For example, one case featured a moody applicant who worked for a nonprofit with mostly cheerful and “glass-half-full” people. Most of the employees at this nonprofit had an optimistic attitude because they were helping people in a pretty bad neighborhood.

But the applicant did not. She frequently made rude comments to her co-workers, picked fights with them and with clients, and argued about unimportant things. This led to her being disciplined for shouting at clients and preventing co-workers from being able to do their jobs.

The applicant filed a psych claim and alleged that all of her internal conditions were made worse by the psych. That is where we used the McCoy defense. We had a mountain of a personnel file full of good-faith personnel actions and a line of credible witnesses from the nonprofit employer willing to testify about the applicant’s grumpiness.

Conclusion

Defendants who have a personnel file full of good-faith disciplinary actions and witnesses willing to help testify to them can use the good-faith personnel action defense to apply to other body parts that were solely caused by a psych condition.

John P. Kamin is a workers’ compensation defense attorney and equity partner at Bradford & Barthel’s Woodland Hills location. He is WorkCompCentral's former legal editor. This entry from Bradford & Barthel's blog appears with permission.