Good Faith Personnel Action Upheld By Court

There have not been a great deal of cases that have dealt with the affirmative defense of a good faith personnel action in a stress case. An appellate court has recently dealt with this issue.

The applicant filed an application for adjudication alleging a psychiatric injury. The case revolves around the applicants six-month performance report. The applicant received a rating of “meets standards”. The applicant was unhappy with this rating. The applicant became agitated and asked a supervisor to review the rating. A higher rating would mean a raise in salary. The next day the applicant was given a higher rating of” exceeds standards”. This still did not satisfy the applicant who wanted a rating of “outstanding”. The applicant became very upset. The applicant started “to lose it”. The applicant asked for medical assistance and an ambulance.  The supervisor called 911. The supervisor did not request the police, but several deputies responded to the 911 call.

The applicant and the deputies expressed different versions of what transpired. The applicant was eventually restrained, was pepper sprayed, handcuffed and removed from the employers premises. He was taken to a hospital. He filed for a psychiatric injury which was denied by the employer. The Workers Compensation Judge found an industrial injury and the Appeals Board adopted the Judges opinion.

The appellate court reviewed Labor Code section 3208.3 and its history.  The court stated that injury could nor be substantially caused by a good faith personnel action. “’(s)substantial cause’ means at least 35 to 40 per cent of the causation from all sources combined.” The court indicated that section 3208.3 was amended in 1991 and 1993.  Thel993 legislation no longer defined “personnel action”.  The court stated that “it is fairly clear that the legislature intended to include actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances.”

The court stated that the determination to be made was whether the police action substantially caused a good faith “personnel action”. The court used the “but for” test. But for the personnel action the applicant would not have become agitated; would not have requested medical attention; no one would have dialed 911; and the police would not have come and the altercation would not have occurred.  Therefore, the claim was not compensable.

Case: Zurich-American V. W.C.A.B. (Quintero)

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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