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3rd DCA Reverses WCAB on Good-Faith Personnel Action Issue

  • State: California
  • - Popular with: Legal
The California 3rd District Court of Appeals has issued a decision reversing an award of benefits on a psychiatric case where the principal dispute was what portions of the causes of applicant's psychiatric condition constituted personnel actions. The Workers' Compensation Appeals Board, after initially reversing an award of benefits for psychiatric injury in County of Sacramento v. WCAB (Brooks) had in the second round of Reconsideration upheld the award of benefits by a workers' compensation judge relying on an agreed medical evaluator opinion allocating 33% of the cause of applicant's psychiatric condition to personnel action with the remainder being factors that did not constitute personnel actions.
Defendant appealed the WCAB determination arguing that all of the factors considered by the AME as causative of the work-related injury were derivative of the lawful good-faith personnel actions of the employer and therefore should be eliminated from consideration of the employment relationship for purposes of identification of causation of a psychiatric injury.
The Court of Appeal however took a different approach to this issue. The Court noted the distinction of what constituted a personnel action and what constituted the applicant's reaction to a personnel action was not clear from the agreed medical examiner's report.
The case involved a probation officer at juvenile hall in Sacramento County who was the subject of an internal affairs investigation based upon a complaint of a subordinate officer. As part of the investigation, the employee was advised that he should have no contact with the complaining employee, which the officer interpreted as a lack of support for his position as a supervisor and preventing him from supervising the employee. While the employer allowed him to modify his shifts to avoid contact with the complaining employee, they would not allow him to take time off with pay or other administrative actions.
On one occasion when the applicant was scheduled to appear at the same time as the complaining employee, the applicant left work and filed a claim for a work-related injury.

The trial judge, in the first trial in this matter, had awarded benefits but was reversed by the board on Reconsideration. The WCAB concluded the medical record was inadequate to confirm occupational injury in particular in relation to the issue of good-faith personnel action. On remand, the deposition of the agreed medical examiner provided the below testimony and the trial judge again awarded compensation benefits in a decision which was supported by the board 2 to 1. The court, noting the dissenting commissioner’s opinion, felt the report of the agreed medical examiner was once again unclear as to causation. The court agreed with the descending commissioner in this regard, concluding the agreed medical examiner mistakenly attributed to causation of injury of the factor which was the actual injury i.e., the applicant's "feelings" arising from the disciplinary action.

The Appellate Court noted the employee's feelings are the actual injury, not a cause of injury. Consequently, the agreed medical examiner's allocation of a significant part of the cause of injury to the employee’s feeling relative to a personnel action did not constitute substantial evidence and did not constitute evidence indicating that less than 35% to 40% of the overall causation of injury was related to personnel factors.
In her report, the AME had concluded the applicant's psychiatric condition was multi-causal, assigning one-third to each of the different issues that she addressed. The doctor allocated as follows:
"In terms of apportionment of causative factors, the employee's grievance would contribute one-third of the development of psychiatric injury, the investigation would contribute one-third to the development of psychiatric injury and his feelings that he was unsupported by his supervisors would contribute one-third to the development of psychiatric injury in this case. …"
The court in this case seemed to believe the entire action constitutes a response to the applicant's personnel action maintained by the employer. There was no issue as far as we could tell from the case as to whether that action was commenced in good faith. However the employee's response resulting in psychiatric injury derives from the investigation. The employee was offended that the supervisors appeared to adopt the complaining employee's side in restricting his access and supervisory authority over that employee and this was viewed by the agreed medical examiner as a significant causative factor for the applicant's injury.
The county noted the legal arguments, which included that all of the factors identified by the agreed medical examiner were actually in response to the employer's personnel actions and therefore should fall under the good-faith personnel action defense. The trial judge and ultimately the Board had mistakenly concluded the determination whether an action was a personnel action relied upon medical evidence. However, the Court of Appeals noted a determination of whether a specific conduct constitutes a personnel action was a legal conclusion to be drawn by the trier of fact and was not the subject of medical opinion:
"Whether there has been a psychiatric injury must be established by expert medical opinion." Rolda v. Pitney Bowes, 8 (2001) 66 CCC 241, 245. However, "the WCJ must then decide where any of the actual events of employment that caused the psychiatric injury [offensive employment that caused the psychiatric injury] were personnel actions, and if so, whether any of them were lawful, nondiscriminatory good faith personnel actions. These are factual/legal issues for the WCJ to determine." Rolda v. Pitney Bowes at 246 (Emphasis added).
In applying this analysis to the case before it, the Appellate Court disagreed with the WCJ and WCAB's opinion, the applicant's feelings regarding the County's actions constituted a separate action which could be identified as a non-personnel action. After reviewing the record, the Court made the following observations:
"The Board's causation analysis treated Brooks' "feelings that he was unsupported by his supervisors" as a cause of psychiatric injury, as did Dr. Allen. In reality, however, his feelings were the injury or symptoms of the injury not the cause of injury. Using the reasoning of Dr. Allen and the board, one could conclude that even the internal affairs investigation was not a personnel action because it was Brooks' feelings about the internal affairs investigation that caused the injury, not the investigation itself. Such reasoning is unsound. It was the internal affairs investigation that caused, in Dr. Allen's opinion, one-third of the injury. But on the same token, we must attempt to determine from the evidence whether events properly identified as personnel actions caused Brooks' "feelings that he was unsupported by his supervisors."

The court further noted while the AME had claimed she separated Brooks' feelings about the investigation from other causes, her deposition testimony in fact established the opposite when she testified that it was very difficult to separate each of these factors, and in addition that the actions and response to the actions of the employer were actually interrelated.
The court viewed as untenable the opinion of the agreed medical examiner that Brooks' feelings that he was unsupported by his supervisors was a cause of the injury feeling that she was unable to differentiate between the causes and injury or symptoms of injury and then ultimately admitting the causative factors were all interrelated and she was unable to separate those.
Having found that the Board's decision was not supported by substantial evidence, the Court remanded this matter back to the Board for further development of the record. It seems highly likely given this particular record that the trial judge will be obligated to conclude the applicant's complaints all arose from the employer's good-faith personnel action and this case will end up being non-compensable.
This case is rather heavily factually based and very likely has somewhat limited application to many other circumstances. However the Court's analysis of what constitutes a cause of injury as opposed to the results of the cause of injury (i.e., the feelings generated by action) should help provide guidance to medical evaluators in assessing causation of injury. The Court’s discussion of the employee's response to an employment action as not the actual cause of the injury but the result of the causation of injury may certainly come up as an issue anytime the issue of causation of injury in a psychiatric case is framed as an issue. Consequently the fact that one emotionally reacts to an event does not constitute a separate cause of injury, and it is the event which is the cause of injury to be considered.
The case also suggests that a court should not allow the opinion of the AME (or another medical expert) to determine the legal issues that are paramount in the case. The defense attorney in this case kept her focus on the factual issues the WCAB was supposed to decide rather than allowing the physician to dictate the legal approach to the case. The case represents a job of excellent development of the record at the lower level to support the appellate work on the part of counsel for defendants. The defense counsel for the city, Elizabeth S. Trimm of Hanna Brophy et al, in Sacramento, was able to establish on the basis of the information presented at the lower level provided to the Court of Appeals a compelling record for reversal.

Richard M. "Jake" Jacobsmeyer is a founding partner of Shaw, Jacobsmeyer, Crain & Claffey in Oakland.

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