ADJ12529330 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed by Defendant and denied by the WCAB panel after review of the WCJ report.

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.

Psyche AOE/COEApplicant prevailedpsyche

The psychiatric injury was found to be compensable because the employment relationship provided the means and opportunity for the injury to occur, and the injury was predominantly caused by actual events of employment, including the employer's restroom facilities and the co-worker's access during work hours.

From the decision · page 3The facts of this case are not in dispute and are set forth in Dr. Sanjay Agarwal's QME report dated 6/11/19. The doctor summarized that while the applicant was using one of the stalls in the restroom at work, he noticed an individual in the next stall was pointing a cell phone camera at him from under the wall dividing the two stalls. The applicant told the other individual that it was illegal to point a cell phone camera in a public restroom. The other individual immediately left but the applicant was able to identify him from his shirt and shoes as a co-worker that worked on the other side of the applicant's cubicle wall. The applicant confronted the individual who eventually admitted his involvement. (Exh. 1, QME report Dr. Sanjay Agarwal, 6/11/19, pgs. 9-10.)

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The employer provided restroom facilities constructed in a way that made the invasion of privacy possible.

Favours Applicant prevailed

This design allowed the co-worker to photograph the applicant under the stall divider, contributing positively to the injury's cause.

From the decision · page 6Defendant contends that Applicant has failed to prove that the employment relationship had any contributory cause other than providing a location where the applicant could be assaulted. However, the employer in this case contributed more than just the stage for the incident. The employer provided the restroom facilities that were designed and constructed in such a way as to make the invasion of privacy possible. An individual facility or one with solid partitions down to the floor would have prevented the applicant's co-worker from reaching under the divider between the stalls to photograph the applicant. Furthermore, the perpetrator was not only a co-employee but worked in an adjacent cubicle to the applicant which allowed him the opportunity to know when the applicant would be using the restroom facilities and follow him in.

The co-worker was employed in an adjacent cubicle, allowing opportunity to know when the applicant used the restroom and to follow him in.

Favours Applicant prevailed

This employment relationship provided the means and opportunity for the injury to occur, supporting compensability.

From the decision · page 6Defendant contends that Applicant has failed to prove that the employment relationship had any contributory cause other than providing a location where the applicant could be assaulted. However, the employer in this case contributed more than just the stage for the incident. The employer provided the restroom facilities that were designed and constructed in such a way as to make the invasion of privacy possible. An individual facility or one with solid partitions down to the floor would have prevented the applicant's co-worker from reaching under the divider between the stalls to photograph the applicant. Furthermore, the perpetrator was not only a co-employee but worked in an adjacent cubicle to the applicant which allowed him the opportunity to know when the applicant would be using the restroom facilities and follow him in.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

California Labor Code

Labor Code 3208.3(b)(1) requires actual events of employment to be the predominant cause of a psychiatric injury for compensability.

Applied to determine compensability of psychiatric injury.

From the decision · page 4Labor Code section 3208.3 requires that in order for a psychiatric injury to be compensable "actual events of employment" must be the predominant cause of the injury. In this case, the parties agreed that the only issue to be determined was whether or not the circumstances and events causing the applicant's injury qualify as an "actual event of employment".

California Comp. & Fire Co. v. Workmen's Comp. App. Bd. (Schick), 68 Cal.2d 157

Compensability requires that the injury arise out of and in the course of employment, with employment playing a positive role in the injury's development, not merely providing a stage.

Applied to assess the connection between employment and injury.

From the decision · page 5As stated in California Comp. & Fire Co. v. Workmen's Comp. App. Bd. (Schick), 68 Cal.2d 157, 160, citing Madin, supra, 46 Cal.2d 90: "In finding that t4e injury arose out of the employment, this court held that a sufficient causal connection between the injury and the employment is shown where the employment was a contributory cause of the injury, that where the injury occurs on the employer's premises while the employee is in the course of his employment the injury also arises out of the employment unless the connection is so remote from the employment that it is not an incident thereof, and that an injury can arise out of the employment even though the employer had no connection with or control over the force which caused the injury. It was also held that an injury is compensable where the employee is brought into a position of danger by the employment even though the risk could not have been foreseen by the employer, and, finally, that reasonable doubts as to whether an injury is compensable are to be resolved in favor of the employee." (State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1982) 133 Cal.App.3d 643, 655 [184 Cal.Rptr. 111].)

State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1982) 133 Cal.App.3d 643

An injury caused by a third party with unknown or no motive occurring in the course of employment is compensable if there is some employment connection or contribution.

Applied to determine compensability of injury caused by third party.

From the decision · page 5The court concluded, if a third party assaults and injures the employee while in the course of employment and the third party acted out of purely personal motives there is no compensability. However, if the employee can show there was some employment connection or contribution, i.e., an industrial cause of the injury so as to establish the arising-out-of element, then there is compensability. Such cause need not be the sole cause and need only be a contributing cause. Finally, if the third party's assault causing the injury occurs in the course of employment and is committed for unknown motives or no motive at all, i.e., for nonpersonal motives, the injury is compensable. (State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1982) 133 Cal.App.3d 643,655 [184 Cal.Rptr. 111].)

ADJ12529330 · April 9, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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