ADJ10280441 · May 16, 2025

The WCJ found that the applicant sustained an industrial psychiatric injury and that the defendant did not meet its burden to prove the injury was substantially caused by lawful, nondiscriminatory, good faith personnel action under Labor Code section 3208.3(h). The WCAB affirmed this finding.

From the decision · page 2In addition to the analysis set forth in the WCJ's Report, we observe the following. Section 3208.3 provides, in relevant part:

Applicant sustained industrial psychiatric injury to psyche as found by WCJ based on Dr. Flores' medical reports.

Favours Applicant prevailed

This finding established compensability in favor of applicant.

From the decision · page 5DISCUSSION Medical reports from Nelson Flores, Ph.D., dated July 27, 2017 and October 22, 2019 (Exhibits 1 and 2):

Defendant failed to prove lawful, nondiscriminatory, good faith personnel action was a substantial cause of injury under Labor Code section 3208.3(h).

Favours Applicant prevailed

Failure to meet burden of proof on affirmative defense favored applicant's claim.

From the decision · page 2Here, the WCJ has appropriately analyzed the parties' respective burdens of proof and determined that on the instant record, defendant has not met its affirmative burden of establishing that lawful, nondiscriminatory good faith personnel action was a substantial cause of applicant's claimed psychiatric injury.

Found applicant sustained industrial psychiatric injury to psyche; medical reports dated July 27, 2017 and October 22, 2019 admitted into evidence and relied upon.

The WCJ found Dr. Flores' medical reporting substantial medical evidence and relied on it to find injury AOE/COE to applicant's psyche.

From the decision · page 5DISCUSSION Medical reports from Nelson Flores, Ph.D., dated July 27, 2017 and October 22, 2019 (Exhibits 1 and 2):

Issued two supplemental reports but opinions were found not substantial medical evidence due to lack of explanation and failure to comply with WCJ's order for one report.

The WCJ found Dr. Dorsey's opinions not substantial medical evidence and did not rely on them.

From the decision · page 8Dr. Dorsey's Opinions Are Not Substantial Medical Evidence: Defendant argued that this WCJ should not have relied on Dr. Flores' medical reporting as

Did not find any orthopedic/physical injury in report dated July 18, 2017.

The WCJ considered Dr. Newton's report but it did not support physical injury claims.

From the decision · page 8Despite the opportunity to review all of the reports and/or records in this case, including the AME report from Peter Newton, M.D., dated July 18, 2017 (Joint Exhibit Z), who did not find any orthopedic/physical injury, and Dr. Flores' July 27, 2017 and October 22, 2019 reports (Exhibits 1 and 2), Dr. Dorsey still stood by his opinion apportioning 80% of all causes to cumulative trauma physical injuries without explaining how and why (Joint Exhibit Y, Exhibits C and D). It is important to note that the latter two reports (Exhibits C and D) were issued after this WCJ's Order developing the record. Dr. Dorsey's opinions are still not substantial medical evidence. This WCJ did fulfill her duty to supplement the record when the record was lacking, and

Labor Code section 3208.3

To establish compensability of psychiatric injury, employee must show actual events of employment were predominant cause (>50%) of injury under Labor Code section 3208.3(b).

Applied to determine compensability of psychiatric injury.

From the decision · page 2In addition to the analysis set forth in the WCJ's Report, we observe the following. Section 3208.3 provides, in relevant part:

Labor Code section 3208.3

No compensation for psychiatric injury if substantially caused by lawful, nondiscriminatory, good faith personnel action under Labor Code section 3208.3(h).

Applied to assess defendant's affirmative defense.

From the decision · page 2No 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.

Labor Code section 5705

Burden of proof rests on party asserting the affirmative issue under Labor Code section 5705.

Applied to burden of proof for defendant's affirmative defense.

From the decision · page 2However, a defendant seeking to prevail on the basis of the protection afforded to it by section 3208.3(h) must first assert the issue of the applicability of the section. In addition, section 5705 provides in relevant part that "[t]he burden of proof rests upon the party or lien claimant holding the affirmative of the issue." (Lab. Code, § 5705.)

Defendant failed to rebut presumption of proper service of Dr. Flores' reports despite defective service to defense attorney, and no notice of change of third party administrator was given.

From the decision · page 6Based on the October 18, 2017 Proof of Service, it is presumed that the July 27, 2017 report from Dr. Flores was served on the proper address for Tristar. This is a rebuttable presumption and defendant did not provide any evidence to rebut said presumption. As such, the July 27, 2017 report from Dr. Flores (Exhibit 1) is presumed to have been served on Tristar but not on defense attorney of record. On one hand, it is defective service without serving defense attorney pursuant to 8 CCR § 10625. On the other hand, Tristar was properly served with said report so there was no prejudice or denial of due process to defendant. Since applicant bears the burden of proving injury AOE/COE and taking into consideration the spirit of liberal construction, as well as Labor Code § 4060(b), it is found that the July 27, 2017 report from Dr. Flores (Exhibit 1) is admitted into evidence.

Defendant did not raise the affirmative defense of lawful, nondiscriminatory, good faith personnel action in the Pre-trial Conference Statement or at Trial, thus waived it.

From the decision · page 8it did not contain a Rolda analysis. As indicated in this WCJ's Opinions on Decision, dated May 2, 2023, lawful, non-discriminatory, good faith personnel actions defense under Labor Code § 3208.3(h) is an affirmative defense, with the burden of proof resting on the party who is asserting said defense. The party asserting said defense has the burden of producing substantial medical evidence with a proper Rolda analysis. But defendant's argument herein is moot as defendant did not raise this affirmative defense in the Pre-trial Conference Statement or at Trial, thus it was waived. The lack of a Rolda analysis herein does not render Dr. Flores' medical reporting not reliable and not substantial medical evidence. In fact, this WCJ found Dr. Flores' medical reporting substantial medical evidence and relied on same to find injury AOE/COE to applicant's psyche, as well as award permanent disability, future medical care and attorney's fees.