Defendants can use a successful good faith personnel action defense to fight compensability of body parts that emanated from the alleged psyche injury, thanks to a 2012 published decision from the 4th District Court of Appeal.
Twelve years after a California appellate court issued its decision in County of San Bernardino v. WCAB (McCoy) 203 Cal. App. 4th 1469, 138 Cal. Rptr. 3d 328, the decision remains good law today. The case stands for the proposition that the good faith personnel action defense can apply to more than just psyche injuries, when the following circumstances occur:
- The applicant has suffered a psyche injury,
- The psyche injury is barred by LC 3208.3’s good faith personnel action defense,
- The psyche injury was the sole work-related cause of the physical injury
In McCoy, a sheriff’s deputy had alleged that a psyche injury caused migraine headaches as well. The employer raised good faith personnel action defense against the psyche injuries, and contended that it applied to the migraines as well.
The Workers’ Compensation Appeals Board ruled that even though the good faith personnel action defense was successful, it did not bar compensability for the migraine headaches because those are not a psychiatric injury. The 4th DCA annulled the WCAB’s ruling, and determined that the good faith personnel action defense barred the migraines. The appellate justices reasoned that because:
- The migraines were caused by on-the-job stress,
- Psychological injuries caused by on-the-job stress was barred by the good faith personnel action defense,
- The good faith personnel action defense barred recovery for physical injuries that were directly and solely caused by psyche injuries resulting from good faith personnel actions.
OTHER EXAMPLES
The McCoy decision is a perfect test case because it’s pretty easy to understand how a psyche claim could lead to more headaches, even if they are migraine headaches. But what other body parts do we see applicant’s alleging as sequelae to psyche?
The most common sequelae we see plead are cardiology complaints, such as hypertension or heart attack cases. After that, it’s other internal issues, such as diabetes.
To take it a step further, your humble blogger has even defended cases where applicants alleged alopecia and skin disorders emanating from psyche. The good news is that in all those cases, McCoy can be used to defend them.
GOOD FAITH PERSONNEL ACTION DEFENSE
For those newer to comp, understanding the elements of a good faith personnel action defense is essential to knowing how to defend against psyche claims. The defense is commonly known as a “Rolda” defense, which refers to the WCAB’s en banc decision in Rolda v. Pitney Bowes, 66 Cal. Comp Cases 241.
In that case, the WCAB created a multilevel analysis to determine whether the good faith personnel action defense barred a psyche injury. The analysis goes as follows:
- Does the alleged psyche injury involve actual events of employment?
- If so, does competent medical evidence support the percentage of industrial causation?
- If those two conditions are met – the judge must decide if any of the actual employment events are indeed personnel actions. If they are indeed personnel actions, move onto the next step.
- If those events were personnel actions – the judge must decide whether the actions were lawful and made in good faith. If they were made in good faith, move on to step 5.
- Lastly, if all of the above criteria are met, is there competent medical evidence showing that these events were a substantial cause (at least 35-40%) of the psyche injury?
In summary, if all five criteria are satisfied, then a defendant has a viable good faith personnel action defense. How does one prove this up? By getting a psyche QME to perform an adequate Rolda analysis, and presenting employer evidence (documents, witness testimony) that the personnel actions were made in good faith.
In your humble blogger’s experience, this defense most frequently occurs when the applicant does not like or get along with their coworkers for trivial reasons. For example, one case featured a moody applicant who worked for a nonprofit with mostly cheerful and “glass half full” people. Most of the employees at this nonprofit had an optimistic attitude, because they were helping people in a pretty bad neighborhood.
But the applicant did not – she frequently made rude comments to her coworkers, picked fights with coworkers and clients, and argued about unimportant things. This led her to being disciplined for shouting at clients and preventing coworkers from being able to do their job duties.
So the applicant filed a psyche claim, and alleged that all of her internal conditions were made worse by the psyche. That is where we used the McCoy defense – we had a mountain of a personnel file full of good faith personnel actions, and a line of credible witnesses from the nonprofit employer willing to testify about applicant’s grumpiness.
CONCLUSION
Defendants who have a personnel file full of good faith disciplinary actions and witnesses willing to help testify to them can use the good faith personnel action defense to apply to other body parts that were solely caused by the psyche condition.
Got a question about the good faith personnel action defense or other workers’ compensation defense issues? Feel free to contact John P. Kamin. Mr. Kamin is a workers’ compensation defense attorney and equity partner at Bradford & Barthel’s Woodland Hills location, where he monitors the recent legislative affairs as the firm’s Director of the Editorial Board. Mr. Kamin previously worked as a journalist for WorkCompCentral, where he reported on work-related injuries in all 50 states. Please feel free to contact John at jkamin@bradfordbarthel.com or at (818) 654-0411.
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