ADJ8539095 · August 10, 2022

The WCJ and WCAB found that actual events of employment were the predominant cause of the psychiatric injury and that the employer's administrative appointments were not personnel actions under section 3208.3(h), so the good faith personnel action defense failed.

From the decision · page 3The parties proceeded to trial, and on December 3, 2019, the WCJ issued the F&O, determining in relevant part that applicant sustained injury arising out of and in the course of employment (AOE/COE), and that the injury was not substantially caused by lawful, nondiscriminatory, good faith personnel action. (F&O, dated December 3, 2019, Findings of Fact Nos. 1 and 3.) In her Opinion on Decision, the WCJ explained that applicant's injury was predominantly caused by actual events of employment, and that the appointments of Dr. Bindler

AME Dr. David Reiss's causation analysis attributing 65% of psychiatric injury causation to actual events of employment including reporting to non-medical supervisors and letter of expectation

Favours Applicant prevailed

The AME's agreed medical opinion was relied upon by the WCJ and WCAB as the primary medical evidence establishing causation and predominance of actual events of employment.

From the decision · page 3The parties selected David Reiss, M.D. as the Agreed Medical Examiner (AME) in psychiatry. Dr. Reiss identified multiple psychiatric diagnoses, with industrial factors identified as the predominant cause of psychiatric injury. (Ex. 1, report of AME David Reiss, M.D., dated February 5, 2013, at p. 17.) The determination of whether there was good faith personnel action was deferred to the trier of fact. (Ibid.) Over the next four years, the parties requested multiple supplemental reports from Dr. Reiss in an attempt to elucidate the issue of whether good faith personnel action was a substantial cause of alleged psychiatric injury. On March 25, 2016, AME Dr. Reiss issued a report wherein he assigned 5% causation to applicant's usual and customary duties, 15% to perceived discrimination, and 5% to preexisting factors. (Ex. 6, report of David Reiss, M.D., dated March 25, 2016, p. 6.) Dr. Reiss felt that the remaining 75% causation arose out of the administrative actions of applicant's employer. (Ibid.) In a supplemental report of April 14, 2017, Dr. Reiss provided the following causation attribution:

Defendant failed to prove that administrative appointments of other individuals to Chief of Mental Health were lawful, nondiscriminatory, good faith personnel actions

Favours Applicant prevailed

Without proof that these were personnel actions, the good faith personnel action defense failed, supporting applicant's claim for compensation.

From the decision · page 10We emphasize that each case must be decided on its own merits, and that this decision is limited to facts at bar. (County of Butte v. Workers Compensation Appeals Bd. (Purcell), supra, 65 Cal. Comp. Cases 1053, 1057], "what constitutes a personnel action depends on the subject matter and factual setting for each case.") However, on the facts before us we conclude that the employer's administrative appointments of persons other than applicant were not personnel actions as contemplated by section 3208.3(h). Because defendant has not established the administrative appointments of other individuals to the position of Chief of Mental Health were personnel actions within the meaning of section 3208.3(h), we agree with the WCJ that defendant has not met its burden of proving that lawful, nondiscriminatory good faith personnel action was a substantial cause of the claimed injury.

Identified multiple psychiatric diagnoses with industrial factors as the predominant cause of psychiatric injury; apportioned causation percentages including 30% to expectation to report to non-medical supervisor and 5% to letter of expectation; found good faith personnel action issue to be for trier of fact.

The AME's causation analysis was relied upon by the WCJ and WCAB as the parties' agreed medical opinion and was not rebutted by defendant with persuasive evidence.

From the decision · page 3The parties selected David Reiss, M.D. as the Agreed Medical Examiner (AME) in psychiatry. Dr. Reiss identified multiple psychiatric diagnoses, with industrial factors identified as the predominant cause of psychiatric injury. (Ex. 1, report of AME David Reiss, M.D., dated February 5, 2013, at p. 17.) The determination of whether there was good faith personnel action was deferred to the trier of fact. (Ibid.) Over the next four years, the parties requested multiple supplemental reports from Dr. Reiss in an attempt to elucidate the issue of whether good faith personnel action was a substantial cause of alleged psychiatric injury. On March 25, 2016, AME Dr. Reiss issued a report wherein he assigned 5% causation to applicant's usual and customary duties, 15% to perceived discrimination, and 5% to preexisting factors. (Ex. 6, report of David Reiss, M.D., dated March 25, 2016, p. 6.) Dr. Reiss felt that the remaining 75% causation arose out of the administrative actions of applicant's employer. (Ibid.) In a supplemental report of April 14, 2017, Dr. Reiss provided the following causation attribution:

California Labor Code Section 3208.3

Lab. Code 3208.3(a)-(b) and (h)

Applicant must prove actual events of employment were predominant cause of psychiatric injury; no compensation if injury substantially caused by lawful, nondiscriminatory, good faith personnel action; burden on party asserting personnel action defense.

From the decision · page 4The burden of proving injury AOE/COE by a preponderance of the evidence rests with the applicant. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a); 3202.5.) With respect to psychiatric injuries, section 3208.3 provides, in relevant part, as follows:

Applicant's testimony about frustration and disappointment reporting to non-medical supervisors and concerns about job duties and professional liability