What the panel ordered
The Workers' Compensation Appeals Board rescinded the August 15, 2022 F&A and returned the matter to the trial level for further proceedings and a new decision by the WCJ on the merits of the good faith personnel action defense under Labor Code section 3208.3(h).
Defendant sought reconsideration of the Findings of Fact and Award and Opinion on Decision (F&A) issued by a workers' compensation administrative law judge (WCJ) on August 15, 2022, which found compensability of applicant's psyche injury and barred defendant from asserting the good faith personnel action defense.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The WCAB found that the WCJ erred in barring defendant from asserting the good faith personnel action defense despite the section 5402(b) presumption, citing persuasive prior panel decisions allowing the defense regardless of when evidence was obtainable.
From the decision · page 2After trial, the WCJ issued the contested F&A, concluding that, because defendant failed to reject liability for applicant's psyche claim within 90 days of receiving the form, the psyche injury was presumed compensable under section 5402(b). The WCJ also found that section 5402(b) barred defendant from asserting the section 3208.3(h) "good faith personnel action defense" against applicant's psyche claim, where there was no showing that the evidence was only discoverable outside of the initial 90-day period set forth in section 5402(b). The WCJ thus concluded that applicant sustained a psyche injury AOE/COE compensable under section 5402(b) and issued an award in applicant's favor.