Application for Adjudication of Claim

Sally Smith filed an Application for Adjudication of Claim alleging that she sustained an industrial injury to her psyche because she heard gossip in the work place that she had been having an extra-marital affair, that she’s a home-wrecker and a husband-stealer.

Suzy Sutton also filed an Application, alleging that she sustained an industrial injury to her psyche because she was harassed by her co-workers in the form of being advised that she was not performing her job correctly, having dead rats placed near her work cubicle, and accusing her of eating dogs and cats.

Are these claims of psychiatric injury defensible?  If so, should separate strategies should be employed in connection with each?

Many years ago, the Court would have probably held both allegations to be compensable.  In Albertson’s, Inc. v WCAB (Bradley) (1982) 47 CCC 860, it was held that as long as the employee honestly perceived stressful events in the workplace, a finding of Injury AOE/COE to the psyche would be made.

In 1989, the Legislature enacted Labor Code Section 3208.3 in which it was declared that a new and higher threshold of compensability for psychiatric injuries would be implemented.   No longer would the occurrence of a psychiatric injury be contingent upon an employee’s honest perception of employment related stress; rather, the employee would need to demonstrate, beyond a preponderance of the evidence (Labor Code Section 3202.5) that actual events of the employment were the predominant cause of a mental disorder which produced a need for medical care or disability.

Applying these principles to Sally’s case, the gossip that was circulated was not part of the employer-employee relationship.  In Atascadero USD v WCAB (Geredes) (2002) 67 CCC 519, the District Court of Appeal held that the workplace merely served as the location where the gossip occurred and any injury arising therefrom would not be compensable.  Industrial causation will not be found where the job merely provides a stage for the event.  (Transactron v WCAB (1977) 42 CCC 236)  A finding of injury is only proper where the employment provides an active role in the development of the psychiatric condition. (Bingham v WCAB (1968) 33 CCC 295)  The employment must be more than a passive element and must play an active role in the evolution of the psychiatric condition.  (Twentieth Century Fox Film Corp. v WCAB (Conway) (1983) 48 CCC  275)  Subsequent to obtaining Sally’s testimony in a deposition concerning her perceived stress, and having her evaluated by a psychiatrist to verify that the mental disorder was caused by the gossip, the case will be in a posture of obtaining a take nothing at the time of Trial.

Suzy’s situation is slightly different because potential actual events of the employment are alleged.  Thus, the focus of the defense should be on attacking the veracity of the allegations.  Immediately upon receipt of the initial pleading, an employer level investigation should be conducted by interviewing each of the co-workers who were identified as being the source of the harassment.  Suzy would need to be pinned down during the course of her deposition regarding the specific details underlying each allegation.  Although it is well settled that industry takes an employee as it finds him/her (Lamb v WCAB (1974) 39 CCC 310), the Legislature did not intend to reward individuals who are dishonest.  The weight and sufficiency of evidence and credibility are matters to be determined by the Trial Judge.  (Clendaniel v IAC (1941) 6 CCC 85)  More weight may be placed on the evidence presented by one party that on that provided by the other.  (US Auto Stores v WCAB (Brennen) 36 CCC 173) 

Let’s assume that Suzy tells the psychiatric QME that she was constantly advised by co-workers that she was not performing her job correctly, that dead rats were placed near her work cubicle and she was accused by her co-workers of eating dogs and cats.  The good doctor believes everything that she claims and proceeds to state that her major depressive disorder was predominantly caused by these events.  Is the Court required to rely on the physician’s opinion to find Injury AOE/COE to the psyche?

Absolutely not!  The Trial Court is the ultimate arbiter of a witness’ credibility and will be accorded great weight before any reviewing Court. (Garza v WCAB (1970) 35 CCC 500)  At the time of Trial, the Court would assess the credibility of Suzy’s allegations versus the testimony of the employer’s witnesses in which all of her claims would be specifically denied.  This is precisely what transpired in the case of Fujimoto v Caliber Collision Center 2014 Cal. Wrk. Comp. P.D. LEXIS 118.  The Court held that the employee’s testimony was not to be believed, that the testimony of the employer’s witnesses was credible and held that actual events of the employment did serve as the predominant cause of any psychiatric injury.  Any medical report, in order to constitute substantial evidence, must be based on a complete and accurate history and cannot rise to a level higher than its inadequate premise.  (Georgia-Pacific Corporation v WCAB (Byrne) (1983) 48 CCC 443; Insurance Company of North America v WCAB (Kemp) (1981) 46 CCC 913)

Given the Legislative mandate, all claims involving allegations of Injury AOE/COE to the psyche must be vigorously defended.

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