Collins v. AC Transit, 122221 CAWC, ADJ11360280

• Court: California

HENRIETTA COLLINS, Applicant v. AC TRANSIT, Permissibly Self-Insured, Adjusted By ATHENS ADMINISTRATORS, Defendant No. ADJ11360280 California Workers Compensation Decisions Workers’ Compensation Appeals Board State of California December 22, 2021          Oakland District Office          OPINION AND ORDER          DENYING PETITION FOR RECONSIDERATION           AMBER A. INGELS, DEPUTY COMMISSIONER          Defendant seeks reconsideration of our Decision After Reconsideration of October 15, 2021 wherein we found that, while employed as a bus operator during a cumulative period ending February 28, 2018, applicant sustained industrial injury in the form of cardiac arrest. All other issues were deferred. In finding industrial injury, we reversed a workers’ compensation administrative law judge’s (WCJ) Findings and Award [sic]1, wherein it was found that, while employed as a bus driver during a cumulative period ending February 28, 2018, applicant did not sustain industrial injury in the form of cardiac arrest.2          Defendant contends that we erred in finding industrial injury. We have not received an answer from the applicant.          We will deny defendant’s Petition for the reasons stated in our Opinion and Decision of October 15, 2021 which we adopt and incorporate, and quote below.          Defendant argues that we should have followed the opinions of psychologist Joshua Kirz, PhD regarding causation of applicant’s cardiac arrest. As noted in our prior opinion, psychologists

and psychiatrists in the workers’ compensation system are charged with determining whether an injured worker has sustained “psychiatric injury” under Labor Code section 3208.3, meaning those “diagnosed using the terminology and criteria of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Third Edition-Revised [DSM], or the terminology and diagnostic criteria of other psychiatric diagnostic manuals generally approved and accepted nationally by practitioners in the field of psychiatric medicine.” (Lab. Code, § 3208.3, subd. (a).) Psychiatric injuries governed by Labor Code section 3208.3 are subject to numerous limitations not applicable to other injuries. Psychiatric injuries must be predominately caused by actual events of employment (Lab. Code, § 3208.3, subd. (b)(1)), whereas other injuries only require that work be a contributing cause of the injury. (South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 299 [80 Cal.Comp.Cases 489].). While the requirement that “actual events of employment” be the cause of psychiatric injury requires “objective evidence of harassment, persecution, or other basis for the alleged psychiatric injury” (Verga v. Workers’ Comp. Appeals Bd. (2008) 159 Cal.App.4th 174, 186 [73 Cal.Comp.Cases 63]), this requirement does not apply to other injuries.

         Labor Code section 3208.3 does not apply to physical injuries, such as injury in the form of cardiac arrest. This is true even when nonphysical stress is a contributing cause to the ultimate physical injury. (Lamb v. Workmen’s Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310].)          Applicant testified at trial as follows:

She testified that she had more stress in the last five years of her employment with AC Transit due to driving, the traffic increase, passenger problems, including them not wanting to pay and people trying to smoke on the bus. The passengers would do things that were against the bus rules. Sometimes she had to call the sheriff because they would not comply with the bus rules. During traffic, the other driver would honk, give her the finger, call her names, cut her off. She recalls one incident when she was stopped at a light and one driver came up next to her and he called her a “black bitch.”

There was an increase in traffic. The increase in traffic caused her to shorten her break time, and she barely had time to eat and go to the restroom.

(Minutes of Hearing and Summary of Evidence of May 11, 2021 trial at pp. 6-7.)

The WCJ found that applicant testified

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