- Court Of Appeal Examines Personnel Action Defense in Workers’ Compensation Cases
- May 2, 2013
- Law Firm: Kronick Moskovitz Tiedemann Girard A Law Corporation - Sacramento Office
The Workers’ Compensation Appeals Board (“Board”) awarded compensation to a probation officer for psychiatric injury based on a medical evaluator’s opinion that personnel actions were not a substantial cause of the officer’s psychiatric injury. Part of the officer’s claim rested on the fact that he had “feelings he was unsupported by his supervisors.” The officer’s employer raised the “personnel action defense.” The medical evaluator concluded that the officer’s feelings about his supervisors did not constitute a personnel action. The court of appeal held that the Board erred by accepting the medical evaluator’s opinion regarding what constitutes a personnel action instead of looking to the record for evidence of what caused the officer’s feelings about his supervisors. (County of Sacramento v. Workers’ Compensation Appeals Board (--- Cal.Rptr.3d ----, Cal.App. 3 Dist., April 22, 2013).
Michael Brooks (“Brooks”) worked for the County of Sacramento (“County”) as a supervising probation officer at a juvenile hall. Brooks was told that there was a pending lawsuit that alleged officers at the juvenile hall had used excessive force. Brooks “observed problems he believed bordered on violation of protocols and felt that the Security Emergency Response Team [(“SERT)], which he supervised, resisted and undermined his authority and supervision.” After Brooks counseled two SERT officers regarding an incident with a ward, he “informed his supervisor that the SERT officers resisted his instructions concerning restraining and movement of wards.”
Brooks received an “Admonition & Notice of Internal Affairs Investigation” that notified him of allegations by Ron Parker, a SERT member. The memo notified Brooks that he must “refrain from any supervisory duties which involve Ron Parker, refrain from abusive and or indiscreet language toward Ron Parker, and refrain from any other actions that could reasonably be construed as an attempt to intimidate or threaten Ron Parker.” Brooks thought that the directives were not reasonable because he was responsible for supervising Parker and “believed that with these directives he would not be able to intervene in an emergency.” Brooks asked to either be reassigned or placed on administrative leave until the investigation was complete. Instead, Brooks was allowed to change shifts to minimize his contact with Parker. When Brooks went to work on January 2, 2008, he noticed that Parker was also scheduled to work at the same time. Brooks “was too upset to work.” He subsequently filed a Workers’ Compensation Claim.
An agreed medical examiner, psychiatrist Dr. Ann E. Allen, diagnosed Brooks with adjustment disorder with depressed and anxious moods, arising from “(1) Parker’s complaint, (2) the internal affairs investigation, and (3) Brook’s feelings that his supervisors were not supporting him.” County denied liability based on the “personnel action defense” pursuant to Labor Code section 3208.3, subdivision (h). A workers’ compensation judge (“WCJ”) issued a decision in favor of Brooks. The Board affirmed the decision of the WCJ.
The court of appeal annulled the decision of the Board and sent the matter back with directions for the Board to further develop the record and to reconsider its decision regarding the “personnel action defense.” The basis for the “personnel action defense” is found in Labor Code section 3208.3, subdivision (h) which provides, “No compensation under this division shall be paid by an employer for a psychiatric injury if the injury was substantially caused by a lawful, nondiscriminatory, good faith personnel action.” “Substantial cause” as used in section 3208.3, “means at least 35 to 40 percent of the causation from all sources combined.”
A “personnel action” is conduct that is “attributable to management in managing its business, including such things as reviewing, criticizing, demoting, transferring, or disciplining an employee.” Personnel action is not required to have a direct or immediate impact on employment. Although psychiatric injury first must be established through expert medical opinion, a WCJ “must then decide whether any of the actual events of employment [that caused the psychiatric injury] were personnel actions, and if so, whether any of them were lawful, nondiscriminatory, good faith personnel actions” because “[t]hese are factual/legal issues for the [judge] to determine.”
Here, Dr. Allen initially stated in her report that “there were no particular personnel acts such as being placed on a paid leave of absence or other circumstances that contributed substantially to the development of emotional difficulties.” Allen concluded that if County’s “actions are found to not be in good faith, then his psychiatric claim would be compensable.” The WCJ found Dr. Allen’s report to be persuasive and concluded that, although the internal affairs investigation and the shift changes were personnel actions, the County did not meet its burden to show that a personnel action was a substantial cause of Brooks’ psychiatric injury. The Board, however, concluded the record needed to be developed further regarding the personnel action defense.
Dr. Allen issued a supplemental report in which she opined that Brooks’ psychiatric disorder was predominately caused by the internal affairs investigation involving the complaint, grievance, and shift change in directive of the supervisor. Dr. Allen stated that “Brooks felt undermined as a supervisor and unsupported by his superiors regarding an employee’s grievance.” She concluded that the investigation of the grievance and “the grievance itself contributes substantially to causation of the injury.” Dr. Allen opined that the employee’s grievance contributed one-third to the development of Brooks’ psychiatric injury, the investigation contributed one-third, and Brooks’ “feelings that he was unsupported by his supervisors [contributed] one-third to the development of psychiatric injury in this case.”
The WCJ concluded “that the personnel action defense did not apply because the internal affairs investigation was not a substantial cause (at least 35 percent) of the injury” and again awarded compensation to Brooks. In its review of the WCJ’s decision, the Board held that of all of the events that caused Brooks’ psychiatric injury, the internal affairs investigation was the only one that constituted a personnel action. The Board concluded that because “that investigation accounted for only one-third of the causation, in Dr. Allen’s opinion, it was not a substantial cause of [Brooks’] injury and the personnel action defense was inapplicable.” The Board rejected County’s argument “that some aspects of Parker’s grievance and some aspects of his feelings of being unsupported by his supervisors cannot be separated from the internal investigation and that these combine to meet the 35% threshold for substantial cause.”
The Board relied on Dr. Allen’s reports and testimony for its determination that personnel actions were not the substantial cause of Brooks’ psychiatric injury. The court of appeal concluded the reports and testimony “were so confusing and changing” that they cannot form the basis for the conclusion that personnel actions were not a substantial cause of Brooks’ injury. The unchallenged findings reveal that the internal affairs investigation caused one-third of Brooks’ injury and that the investigation was a personnel action. The court found that “even if a small amount of the remaining causation can be attributed to personnel actions, then personnel actions were a substantial cause (at least 35 percent) of [the] injury.” The court noted that in order to “determine whether part of the remaining causation can be attributed to personnel actions,” it would be required to determine the cause of Brooks’ “feelings that he was unsupported by his supervisors.” The court noted that “[a]ny way you look at Dr. Allen’s evidence . . . the personnel actions involving the investigation and shift change were causes, if not the only causes, of [Brooks’] ‘feelings that he was unsupported by his supervisors.’”
A medical evaluator does not have the authority to make the decision regarding what is or is not a personnel action. The court of appeal concluded that “the Board assumed that, because Dr. Allen stated that [Brooks’] ‘feelings that he was unsupported by his supervisors’ did not constitute a personnel action, there was no personnel action involved in causing those feelings.” The court of appeal held that the Board erred when it impliedly accepted “Dr. Allen’s opinion concerning what is a personnel action” and “did not consider the record for evidence concerning what caused [Brooks’] ‘feelings that he was unsupported by his supervisors.’” The court found that better evidence and legal analysis are needed to determine whether Brooks’ injuries were caused by personnel action. The court of appeal remanded the matter to the Board.