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Grinberg: Good-Faith Personnel Action Fails to Bar Claim

By Gregory Grinberg

Monday, March 12, 2018 | 825 | 0 | min read

In Kirby v. Contra Costa Water District, applicant claimed to have sustained a psyche injury related to work under the supervision of two of defendant’s supervising employees. The primary treating physician and the psyche qualified medical examiner both recommended a change in department to avoid a “deleterious effect on his psyche.”

Naturally, defendant raised the affirmative defense of good-faith personnel action, arguing that since the psyche claim was at least substantially (if not totally) caused by a non-discriminatory, good-faith personnel action as contemplated by Labor Code section 3208.3(h), the claim was not compensable.

At trial, the witnesses provided the basis for the trial judge to conclude that 75% of the cause of the psychiatric injury was actual events of employment, and not a good-faith personnel action.

The report and recommendation rejected defendant’s argument that the psychiatric injury, if there was one, was due to applicant’s misperceptions of work events, rather than the actual work events. As my favorite example goes, “Well, he asked me for a glass of water, so what he really means is that he wants me to drown.”

However, as the applicant credibly testified to specific events — many of them — that occurred throughout the course of his employment, and these were not denied by the defense witnesses, there seemed sufficient evidence to find that actual events of employment caused the injury.

In particular, the workers' compensation judge noted that, based on the medical-legal evidence, the “good-faith personnel actions” don’t make up nearly enough of the causation to warrant the defense, most of it being harassment from subordinate employees.

From my own experience, the difference in accounts between the facts and history of employment relationships can sometimes lead one to believe that these are two separate cases. Employers and employees remember (or claim to remember) things very differently, and sometimes it really is an issue of credibility.

Fortunately, this day and age allows more and more of these instances to be electronically recorded through email. An injured worker need only document the bad things that happen with an email to human resources to complain, and there exists an almost permanent paper trail. Perhaps in some cases, the absence of such written complaints should be read as evidence of absences [of those events].

In any case, the good-faith personnel defense is not, unfortunately, a panacea for all industrial psyche claims. Tolerating harassment by subordinates is not, necessarily, a good-faith personnel action.

Gregory Grinberg is workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.

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