ADJ12744384 · July 25, 2025

The WCJ misassigned the burden of proof on the six-month employment requirement to the applicant, and the evidence was insufficient to establish the employment period was less than six months. The matter was remanded for further development of the record on whether the applicant's employment period substantially complies with the six-month requirement and whether the injury resulted from a sudden and extraordinary event.

From the decision · page 1Applicant seeks reconsideration of the Findings and Order (F&O) issued on April 9, 2021, wherein the workers' compensation administrative law judge (WCJ) found that while employed as a customer service representative during the period of June 29, 2019 through March 4, 2020, applicant did not sustain injury arising out of and in the course of employment through a sudden and extraordinary event which qualifies for an exception to the 6-month employment requirement of Labor Code section 3208.3(d).

The burden of proof on the six-month employment requirement was misassigned to the applicant instead of the defendant.

Favours Applicant prevailed

This misassignment led to an erroneous Findings and Order and necessitated remand for proper burden allocation and further record development.

From the decision · page 5establishes that the applicant has not complied with the six-month employment period provided in Labor Code § 3208.3(d).

The evidence was insufficient to establish that the applicant's employment period was less than six months due to conflicting testimony about employment end date.

Favours Applicant prevailed

This uncertainty required further proceedings to clarify the employment period and applicability of the six-month rule.

From the decision · page 5We also note that since the burden of proof was misassigned to applicant, defendant presented no documentary evidence to suggest that the period of employment was less than six months; and, as we will explain, the testimony of defendant's owner, Mr. McMullen, that applicant did not return to the office after November 14, 2019 is not necessarily sufficient to establish that applicant's period of employment was less than six months.

South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302

Burden of proof for injury AOE/COE is on the employee by preponderance of evidence.

The WCJ misassigned the burden of proof on the six-month employment requirement to the applicant, which was error.

From the decision · page 3The employee bears the burden of proving injury AOE/COE by a preponderance of the

Labor Code Section 3208.3(d)

Labor Code Section 3208.3(d) six-month employment requirement for psychiatric injury claims, with exception for sudden and extraordinary employment condition.

The issue was whether the applicant's psychiatric injury claim falls within the exception under this section.

From the decision · page 3psychiatric injuries, section 3208.3 provides:

Applicant's credible testimony of harassment and panic attack on November 14, 2019; testimony of defendant's owner about employment period

From the decision · page 2According to the owner, Sean McMullen the Applicant did not work for him after November 14, 2019. (See MOH/SOE October 19, 2020, p. 3 ll. 22-25)... The Applicant testified to verbal harassment by other employees in her office. The undersigned found the Applicant to be a credible witness.... According to Mr. McMullen he first learned of any issues of harassment by the Applicant's co-workers on November 12, 2019. (See MOH/SOE October 19, 2020, p. 3 ll. 1-2)