SALLY LARCH, (FLEMING), Applicant,
v.
CONTRA COSTA COUNTY, Defendant (s).
No. WCK 21372
California Workers Compensation Decisions
Workers' Compensation Appeals Board State Of California
July 10, 1998
OPINION
AND DECISION AFTER RECONSIDERATION
ROBERT
N. RUGGLES
Introduction
Labor
Code section 3208.3, subdivision (h) (section 3208.3 (h),
bars compensation for psychiatric injuries which are
substantially caused by a lawful, nondiscriminatory, good
faith personnel action. The issue in this case is what
constitutes a "good faith personnel action" in the
context of a psychiatric injury claim. The workers'
compensation referee (WCR) found that defendant's conduct
in this case constituted a good faith personnel action and we
agree.
Applicant
sought reconsideration of the Findings and Order issued by
the WCR on September 29, 1997. The WCR found that applicant
did not sustain a compensable psychiatric injury while
employed as a Deputy Sheriff/Sergeant through June 28, 1994.
He issued an order that applicant take nothing by reason of
her claim except reimbursement for medical-legal costs.
Applicant asserted that the WCR erred in interpreting the
term personnel action under section 3208.3 (h), to include
any criticism by a non-supervisor which is endorsed by
management but does not affect the applicant's employment
status. She argued that the WCR's interpretation
improperly broadens the statute and deprives injured workers
of benefits under the workers' compensation laws.
Applicant asserted that the term personnel action under
section 3208.3 (h) must be limited to an employer action
which affects the applican'ts employment status.
We
granted reconsideration in order to study the factual and
legal issues in this matter. After reviewing the record, we
conclude that the WCR correctly found the claim barred by
section 3208.3 (h).
Background
Applicant
began her career as a deputy sheriff on January 9, 1978, and
became a Sergeant in September 1990. On June 28, 1994,
Sergeant Knutson confronted applicant about her handling of a
conflict between her staff and the staff of another shift
under Sergeant Carey. Applicant left work on June 28, 1994,
and sought psychiatric treatment. She filed a claim for
psychiatric injury related to various occurrences while at
the Martinez Detention Facility (Martinez facility) from 1992
to March 1993, and the West County Detention Facility
(Richmond facility) from March 1993 to June 28, 1994,
including the June 28, 1994 incident.
The
elements set forth in section 3208.3 must be satisfied in
order to establish that applicant has sustained an industrial
psychiatric injury. Section 3208.3 was part of the
Margolin-Bill Greene Workers' Compensation Reform Act of
1989 (Stats. 1989, ch. 892, § 25) which enacted
extensive revisions to the workers' compensation system.
The legislature expressed its intent that section 3208.3
establish a "newer and higher threshold of
compensability for psychiatric injury."
The
pertinent parts of section 3208.3, as amended and as
applicable to this case, are as follows:
"(a) A psychiatric injury shall be compensable if it is
a mental disorder which causes disability or need for medical
treatment, and it is diagnosed pursuant to procedures
promulgated under paragraph (4) of subdivision (j) of Section
139.2 or, until these procedures are promulgated, it is
diagnosed using the terminology and criteria of the American
Psychiatric Associations' Diagnostic and Statistical
Manual of Mental Disorders, Third Edition-Revised, or the
terminology and diagnostic criteria of other psychiatric
diagnostic manuals generally approved and accepted nationally
by practitioners in the field of psychiatric medicine.
"(b) (1) In order to establish that a psychiatric injury
is compensable, an employee shall demonstrate by a
preponderance of the evidence that actual events of
employment were predominant as to all causes combined of the
psychiatric injury.
"(2) Notwithstanding paragraph (1), in the case of
employees whose injuries resulted from being a victim of a
violent act or from direct exposure to a significant violent
act, the employee shall be required to demonstrate by a
preponderance of the evidence that actual events of
employment were a substantial cause of the injury.
"(3) For the purposes of this section, 'substantial
cause' means at least 35 to 40 percent of the causation
from all sources combined.
"(c) It is the intent of the Legislature in enacting
this section to establish a new and higher threshold of
compensability for psychiatric injury under this division.
In the
revised legislation (Stats. 1991, ch. 115, § 4,
effective July 16, 1991), subdivision (d), was added to read
in part:
"As used in this subdivision, a 'regular and routine
employment event' includes, but is not limited to, a
lawful, nondiscriminatory, good faith personnel action, such
as discipline, work evaluation, transfer, demotion, layoff,
or termination."
In
1993, section 3208.3 underwent significant revision which
essentially increased causation requirements for work-related
psychiatric injuries (Stats. 1993, ch. 118, § 1,
effective July 16, 1993; Stats. 1993, ch. 1242, § 22).
The language in subdivision (d) defining a "regular and
routine employment event' was deleted. Subdivision(h) was
added to provide:
"(h) No compensation under this division shall be paid
by an employer for a psychiatric injury if the injury was
substantially caused by a lawful, nondiscriminatory, good
faith personnel action. The burden of proof shall rest with
the party asserting the issue."
In
considering the issues under section 3208.3, there must first
be a psychiatric injury as defined in section 3208.3 (a), and
the employee must also "demonstrate by a preponderance
of the evidence that actual events of employment...
