ADJ13956162 — California WCAB decision

What the panel ordered

Defendant's Petition for Reconsideration is denied, affirming the finding of industrial psychiatric injury.

Defendant filed a Petition for Reconsideration of the WCJ's Findings and Order dated October 3, 2023, challenging the finding of industrial psychiatric injury.

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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 WCJ and WCAB found substantial medical evidence from PQME Dr. Marina Lensky that the psychiatric injury was predominantly caused by industrial events at work, including harassment by a supervisor, overwork, and a negative performance evaluation. Defendant failed to present a good faith personnel action defense or adequately challenge the causation evidence.

From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Order of October 3, 2023, wherein it was found that while employed as a medical assistant during a cumulative period ending June 23, 2020, applicant sustained industrial injury to the psyche. Applicant also claims industrial injury to the right wrist, "sleep-neurology," and "head-cognitive," but all other issues other than injury to the psyche were deferred.

The rules the panel named

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

Labor Code Section 3208.3

Predominant cause requirement for industrial psychiatric injury under Labor Code Section 3208.3.

The PQME's opinion that industrial factors were the predominant cause of the psychiatric injury was accepted as substantial evidence.

From the decision · page 1For the reasons stated by the WCJ in the Report, which we adopt, incorporate, and quote below, we will deny the defendant's Petition. We note that, while Dr. Lensky noted several factors which may be a basis for apportionment once applicant's condition becomes permanent and stationary, Dr. Lensky clearly stated that industrial factors were the predominant cause of applicant's injury. In order to constitute substantial evidence of injury, a reporting physician is not required to parcel out the exact percentage of industrial and nonindustrial contribution. Dr. Lensky set forth industrial and nonindustrial stressors and opined that industrial factors were the

San Francisco Unified Sch. Dist. v. Workers' Comp. Appeals Bd. (Cardozo) (2010) 190 Cal.App.4th 1

Good faith personnel action defense under Labor Code Section 3208.3(h).

Defendant failed to raise or prove the good faith personnel action defense at trial, so the injury was found compensable.

From the decision · page 2We have omitted a portion of the Report in which the WCJ writes that industrial events were the sole cause of the psychiatric injury. (Report at p. 5.) This appears to contradict Dr. Lensky's opinion that applicant " developed industrial aggravation of pre-existing anxiety and depressive disorders due to alleged mistreatment by [her] manager." (June 17, 2021 report at p. 89.) It appears that in parceling out percentages of causation, Dr. Lensky was not discussing whether actual events of employment were the predominant cause of injury but was rather incorrectly parceling out only industrial factors in determining whether the good faith nondiscriminatory personnel action defense applied. (San Francisco Unified Sch. Dist. v. Workers' Comp. Appeals Bd. (Cardozo) (2010) 190 Cal.App.4th 1 [75 Cal.Comp.Cases 1251] [in determining whether personnel actions substantially caused psychiatric injury, both industrial and nonindustrial factors must be considered].) However, Dr. Lensky's error in this regard is harmless, given that if defendant did not meet the threshold when utilizing only industrial factors, it necessarily would not meet the threshold when nonindustrial factors further diluted the percentage contribution of any personnel actions. In any case, as noted by the WCJ, defendant did not raise the defense at trial.

ADJ13956162 · December 26, 2023

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