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Workers' Compensation

California: Labor Code Section 3208.3(h) Applied to Migraine Headaches

The 4th District Court of Appeal has issued a decision on an issue which has been pending in an unresolved fashion since the early 1990s when Labor Code § 3208.3 was amended to provide that injuries arising from lawful good faith personnel actions. In County of San Bernardino v W.C.A.B. (McCoy) the applicant alleged both psychiatric injury and migraine headaches from job stresses. At trial the Employer was able to show the job stresses complained of by applicant constituted lawful, good faith personnel actions and the WCJ denial injury based on Labor Code § 3208.3(h).

Applicant appealed and the W.C.A.B. reversed the WCJ as far as the migraine headaches were concerned. The W.C.A.B. concluded Labor Code § 3208.3(h) was limited only to the psychiatric diagnosable conditions under the DSM4R. The psychiatric condition could be barred under that section by according to the W.C.A.B., migraine headaches were an organic consequence to the stress and not diagnosable as a psychiatric condition. The W.C.A.B. remanded for the WCJ to award medical treatment and TTD. Defendant appealed the reversal but their Petition for Reconsideration was denied by the Board.

Defendant’s appeal to the 4th District was initially denied but the Supreme Court granted the Request for Review and transferred back to the 2nd District ordering it to grant review. The Court took note of the significance of such a step:

“Indeed, McCoy asserts that the Board’s decision involved a routine application of settled law to a factual situation that was hardly novel, and there is no reason for this court to grant a writ of review. Our Supreme Court believes otherwise because it has granted County’s petition for review and transferred the matter to us with directions to issue a writ of review. We have done so. The Supreme Court’s action does not ipso jure establish that County is entitled to the relief sought, but it does mean that we must decide the issue presented with the parties having an opportunity to argue the issues. (Dickey v. Workers' Comp. Appeals Bd. (1990) 224 Cal.App.3d 1460, 1463.) We can safely infer that issues presented are not a matter of settled law.”

Having decided the issue was one which was not settled, the Court set about settling the issue. Noting there was no definitive law on this subject and only conflicting decisions from the W.C.A.B., the Court looked to the enacting legislation for guidance on what was intended by the Legislature:

“There is no case authority applying the good faith personnel action provision in situations where work-related stress manifests itself in physiological symptoms such as gastrointestinal disorders or, as in this case, headaches… Although there is a dearth of authority on this specific issue, our determination of legislative intent is not rudderless. We agree with Pacific Gas & Electric Co. that we must consider the public policy goals in determining whether an award of benefits is warranted. By enacting section 3208.3 the “Legislature made quite clear that it intended to limit claims for psychiatric benefits due to their proliferation and their potential for fraud and abuse. Therefore, any interpretation of the section that would lead to more or broader claims should be examined closely to avoid violating express legislative intent.” (Pacific Gas & Electric Co., supra, 114 Cal.App.4th at p. 1182.)

… ‘Section 3208.3 was enacted as part of the Margolin-Greene Workers’ Compensation Reform Act of 1989. It is part of the Legislature’s response to increased public concern about the high cost of workers’ compensation coverage, limited benefits for injured workers, suspected fraud and widespread abuses in the system, and particularly the proliferation of workers’ compensation cases with claims for psychiatric injuries.’ ” (Pacific Gas & Electric Co v. Workers' Comp. Appeals Bd., supra, 114 Cal.App.4th at pp. 1180-1181.)”

Rejecting applicant’s efforts to limit the impact of Labor Code § 3208.3 to only psychiatric injury, the Court specifically applied the statutory limitation to physical injuries which are derivative of stress where that stress was a result of lawful, good faith personnel actions:

“In such a circumstance, we must conclude that section 3208.3, subdivision (h), precludes recovery for physical manifestations that are directly and solely resulting from the psychological injury suffered as a result of good faith personnel actions. Any other result would undermine the purpose of the law to limit such claims because of their potential for fraud and abuse. It would be relatively easy for a claimant to avoid this bar by asserting internal problems and symptoms, such as upset stomach, headache and sleeplessness, but not injury to the psyche per se. There is no better example of this than the present case where McCoy added the claim for migraine headaches—a preexisting condition—on the first day of trial. We conclude that the good faith personnel action defense precludes recovery for psychiatric injuries with resulting physiological manifestations solely caused by stress from such actions.


There indeed have been conflicting W.C.A.B. panel and writ denied cases on this specific issue. Applicant made an unconvincing effort to portray this issue as settled based on a strict statutory interpretation, without success. The Court pointed out that the applicant raised the issue of migraine headaches at the time of trial in an apparent effort to head off the pending lawful good faith personnel defense that he apparently figured out was a winner for defendant. This Court astutely figured out the applicant’s effort was intended to sidestep the statute and obtain the same benefits as he sought on a psychiatric basis.

It is also very interesting to note the Court’s holding does not appear limited to migraine headaches. The Court specifically mentions gastrointestinal complaints as being a similar type of condition that can fall under the same guidelines. The question then arises how far can this decision be expanded? Will it apply to cardiovascular complaints, Stress related strokes etc. The underlying rational of the Court would seem to be equally applicable to any physical manifestation of a stress related condition that otherwise met the statutory criterion.

What the decision does not address is conditions which are multifactorial. Labor Code § 3208.3(h) only requires a condition to be “substantially causes” by lawful, good faith personnel actions. Does this mean a stress related condition will be barred if it is 35-40% causally related to the personnel action or does the condition have to be totally caused by the personnel action?  Can the same rule apply to predominate causation for psychiatric injuries? If stress related organic conditions are limited by Labor Code § 3208.3(h) will not subdivisions (b) [predominate causation threshold] or (d) [6 months of employment] also apply.

It seems likely the Court’s decision only scratches the surface of the complex series of questions. Answers that yesterday seemed very certain are suddenly not so clear.

© Copyright 2012 Richard M. Jacobsmeyer. All rights reserved. Reprinted with permission.

Shaw Jacobsmeyer Crain Claffey LLP

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