Grinberg: Split WCAB Addresses Good-Faith Personnel Action Defense
Tuesday, December 22, 2020 | 296 | 0 | min read
Not unlike Soviet Santa, who brings freezing children lumps of coal to great Soviet cheers, I bring you a panel decision reversing a “take nothing” of a psyche claim.
But this isn’t just any case. This one is interesting, to say the least. It is the split panel opinion in Munoz v. Department of Corrections.
Applicant, a case records analyst at a corrections facility, alleged a psychiatric claim as a result of her employment. The panel-qualified medical evaluator opined that the psychiatric condition was 35% caused by an email to applicant that there would be a meeting (in all probability to follow up on a reprimand/corrective counseling) and 35% from hearing about her husband’s friend being attacked. Another 10% was assigned to receiving a reprimand.
The employer maintained that the psychiatric condition was barred by the non-discriminatory, good-faith personnel action defense of Labor Code Section 3208.3.
At trial, the judge agreed, only to have the Workers' Compensation Appeals Board majority split panel reverse on appeal. So what happened?
The panel held that under the en banc law set out by Rolda v. Pitney Bowes Inc., the analysis goes as follows:
- Does the alleged psychiatric injury involve actual events of employment?
- Does competent medical evidence establish the required percentage of industrial causation?
- Were the actual events of employment personnel actions?
- Are those personnel actions lawful, nondiscriminatory and made in good faith?
The parties did not dispute that the 10% original reprimand was a nondiscriminatory, good-faith personnel action, but what about the email that triggered such anxiety? Does the email say that there would be a meeting to follow up on a reprimand count as a non-discriminatory, good-faith personnel action?
The email telling applicant and her staff of an impending meeting did not include the details of what would be discussed at the meeting, but applicant suspected it would be for further reprimands. The email made her upset and anxious. Despite all this, the employer witnesses testified that the meeting was a general one to go over procedures and not to hand out reprimands or further counseling.
Although applicant’s fears regarding the substance of the meeting were unfounded, they still had a damaging effect on her psyche, contributing to the industrial injury.
The WCAB majority reasoned that a routine meeting is not a “personnel” action as contemplated by Rolda and the Labor Code, so a reaction to an email about a meeting or the meeting itself, such as in this case, cannot be the basis for the defense.
But, as I learned in law school so many, many years ago, if you want to know what REALLY happened, read the dissent.
The dissenting voice cited County of Sacramento v WCAB (Brooks) and Bray v. WCAB for the proposition that applicant’s subjective response to a good-faith, non-discriminatory personnel action is not the liability of the employer. In fact, the general holding in those cases is that the reaction to the action is a symptom of the injury, not the injury itself.
Accordingly, applicant’s stress, panic, anxiety and worry after receiving the email regarding a meeting were the symptoms of the psychiatric injury, the injury itself being not the email, but the good-faith, nondiscriminatory personnel action to reprimand her for some misconduct.
What do you think? What is the distinction between an applicant’s subjective response to a good-faith, nondiscriminatory personnel action and the actual action? Do subjective responses to events of employment qualify as “actual events of employment”?
Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.