“Special Risk” Exception To The Going And Coming Rule
- Posted By: Harvey Brown
- July 1, 2001
The Workers’ Compensation-Appeals Board (WCAB) recently issued an Opinion and Decision After Reconsideration (En.Banc) defining a good faith personnel defense in a psychiatric case.
The applicant was a salesman and was assigned a territory with his employer. Before taking a vacation/leave of absence the applicant filed a workers’ compensation claim for orthopedic and psychiatric injury. The applicant alleged his supervisor harassed and discriminated against him.
At the trial AOE-COE was raised as an issue. The defense of a good faith personnel action pursuant to Labor Code section 3208.3 (h) was raised. The only witness at the hearing was the applicant. The matter was taken off calendar for further medical and then another hearing took place in which, the applicant’s supervisor testified.
The Workers’ Compensation Judge (WCJ) found the psychiatric injury compensable and determined there was no good faith personnel defense. Thus, this is the decision on appeal. The first issue to decide in a psychiatric case is whether actual events of employment are involved in the allegation. This is not a medical issue and cannot be decided by medical opinion. This is a legal/factual determination to be made by the trier of fact, the WCJ.
The next determination is whether these actual events were the predominant cause of the psychiatric injury. This is a medical determination. This requires competent medical evidence. Labor Code section 3208.3 states the causation threshold is either (a) predominant as to all causes combined or(b) substantial cause where the injury resulted from a violent act. Predominant as to all causes was not defined in the code, but judicially interpreted to mean that the work cause was greater than 50% of all causes. Substantial cause is defined in the Code as at least 35-40% of all sources combined.
If the foregoing are found then the WCJ must determine whether the actual events of employment were personnel actions. If so, it must be determined whether they were lawful, nondiscriminatory and in good faith. This is a legal/factual determination to be made by the WCJ, not the psychiatrist. This opinion cites other cases for guidelines in making this determination.
Finally, if there is a lawful, nondiscriminatory, good faith personnel action there must be medical evidence that such personnel actions were a substantial cause (35 to 40% of the injury). The physician must first determine if the actual- events of employment were greater than 50% of the cause of injury. The physician must then determine whether personnel actions were a substantial cause (35 to 40%). The WCJ must then articulate all of the findings addressing all the issues in the decision.
Case: Rolda V Pitney Bowes 66 CCC 241
- Posted In: Work Injury