Workers' Compensation

The Real McCoy: Is a “Mental-Physical” Injury Compensable?

How the California 4th DCA Muddies the Water in County of San Bernardino vs. WCAB (McCoy) 203 Cal. App.4th 1469, 138 Cal. Rptr.3d 328, 77 Cal. Comp. Cases 219 (2012)

 By Robert G. Rassp, Esq.

An employee has a pre-existing history of migraine headaches. He gets a job with the County of San Bernardino as an automated systems technician in July 2005 through January 19, 2006. His supervisor yells at him during the six months he works for the County and then he files a cumulative trauma claim to his psyche which is denied AOE/COE. On the day of trial, his attorney gets cute and amends the claim to include injury in the form of migraine headaches. The WCJ issues a “take nothing” based on the defense under Labor Code section 3208.3(h) that the psychiatric injuries were substantially caused by lawful, non-discriminatory, good faith personnel actions and therefore were not compensable.

The Applicant filed a Petition for Reconsideration that was granted, reversing the WCJ and finding that section 3208.3(h) did not bar compensation for migraines since they are not a psychiatric condition listed in the DSM-IV as required by section 3208.3(a), and that the migraines were aggravated by job stress.

The County then filed its own Petition for Reconsideration, contending that a section 3208.3(h) good faith personnel action defense should apply because the sole contributing factor that aggravated Applicant’s migraines was the stress he suffered from the disciplinary actions undertaken in good faith. The WCAB panel denied reconsideration on the basis that migraine headaches are not listed in the DSM-III or DSM-IV as required for a psychiatric condition to be compensable under Labor Code section 3208.3(a).

The Fourth District Court of Appeal granted a writ and first observed at 203 Cal. App. 4th at 1473: “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.” The DCA then reversed the WCAB and held that “the good faith personnel action defense precludes recovery for psychiatric injuries with resulting physiological manifestations solely caused by stress from such actions.” The DCA then goes on to pronounce: “We are aware of the well-established rule that physical injuries or conditions aggravated by work-related stress are compensable” citing Lamb vs. WCAB (1974) 11 Cal.3d 274, 113 Cal. Rptr. 162, 520 P.2d 978, 39 Cal. Comp. Cases 310 [heart attack caused by job stress compensable].” They further pronounce: “Our holding does not undermine this rule because it is limited to cases, as here, where there is no evidence that the employee suffered on the job stress apart from that caused by the good faith personnel actions.” Id. at 1474.


Who was it that said that bad facts make bad law? Does this decision mean that if Mr. McCoy had suffered a heart attack after his supervisor yelled at him for the umpteenth time about his inferior job performance that the heart attack would be a result of a good faith personnel action and therefore not compensable as opposed to the Applicant in Lamb whose heart attack was caused by job stress that was not related to personnel actions? What if Mr. McCoy had suffered an aggravation of a stomach ulcer from good faith “friction with his supervisor” over his job performance or lack thereof?

The DCA has apparently rejected the notion that you have to begin with a DSM-III or DSM-IV diagnosis of a psychiatric condition, which is part of Labor Code section 3208.3(a). This decision seems instead to focus first on the cause of the physical manifestation. If the cause of the physical manifestation of job stress is good faith personnel actions, then the physical manifestations are not compensable? How can this DCA decision be reconciled with Lamb and other case law? Could the legal analysis simply boil down to a “smell test”?

The Lamb Case

In the Lamb case, supra, Mr. Lamb worked as a machinist for 24 years with the same company and he perceived his job as extremely stressful. Mr. Lamb was found dead of a heart attack at the job site after working long hours and complaining to his wife over time how hard he was working and how little help he was getting. There was undisputed evidence that Mr. Lamb suffered from emotional stress from his job. Therefore, there was no discussion of the existence of any stress that was caused by any personnel actions because there were none.

The sole issue presented in Lamb was whether Mr. Lamb’s employment was a contributing cause of his death since all of the evaluating physicians had concluded that stress, whether emotional or physical, could aggravate heart disease. The Supreme Court further emphasized that it is irrelevant whether or not job stress is inherent to the type of work a claimant has: “Industry takes the employee as it finds him. A person suffering from a pre-existing disease who is disabled by an injury proximately arising out of the employment is entitled to compensation even though a normal man would not have been adversely affected by the event. [Citations omitted]. By the same token, it is not the Board’s assessment of the amount of stress inherent in a workman’s employment which governs in matters of stress-caused injury, but rather the Board’s determination of the amount of stress which the particular employment has in fact exerted upon the particular workman.” See Lamb, supra, 11 Cal. 3d at 282-283.

However, remember the Supreme Court decision in Lamb was in 1974, long before the limitations in psychiatric injuries were imposed by the legislature in Labor Code section 3208.3 in 1989 to eliminate bogus psyche cases. What is important to note today is that Mr. Lamb and his widow never alleged a psychiatric injury in the first place.

The “McCullough” Case

The 1st DCA in Lockheed Martin vs. WCAB (McCullough) 96 Cal.App.4th 1237, 117 Cal. Rptr.2d 865, 67 Cal. Comp. Cases 245 (2002) established the rule that Labor Code section 3208.3 applies in all psyche injuries, regardless of how a psychiatric condition manifests itself as part of an industrial injury. In this case, the DCA held that the provision in section 3208.3 that actual events of employment be the predominant cause of all causes of a psychiatric injury applies even when the psychiatric condition is an alleged compensable consequence of a physical injury.

Footnote 6 in McCullough is relevant here: “There are three general types of psychological injury related to employment: (1) physical injury producing psychic trauma or symptoms not physiologically verifiable [physical-mental]; (2) psychic trauma producing physical injury [mental-physical]; and psychic trauma producing psychological injury [mental-mental].” {Citation omitted}. See, McCullough, supra at 67 Cal. Comp. Cases 251.

How does the McCoy case fit here? Is McCoy involving a “physical-mental” injury like in McCullough where she had physical injuries (orthopedic neck and upper extremities) that caused depression? Is depression “physiologically non-verifiable?” Is McCoy involving a “mental-physical” injury where you have a psychic trauma that produces physical injury? Or is the McCoy case one of “mental-mental” where psychic trauma is producing psychological injury (such as where a bank robbery causes post traumatic stress disorder).

Since McCoy was claiming psychiatric job stress aggravated his migraines, the case appears to be one of a “mental-physical” if migraines are considered a “physical” manifestation of a psychic trauma and “is not physiologically verifiable”, as defined by the DCA in McCullough. It appears that’s what the DCA is saying in McCoy – if the “mental” occurs first, then you must address the “physical” in the same context as the mental – is the mental a result of good-faith personnel actions? Is the “physical” manifestation “physiologically verifiable”? If not, then a good faith personnel action defense may be a viable defense to compensability of the claim. Maybe it’s a “mental-mental” type case with the second “mental” a non-verifiable manifestation of the psychiatric work stress injury? Who knows?

But it appears the DCA in McCoy is confusing the criteria in Footnote 6 of McCullough for “physical-mental”, which refers to symptoms “not physiologically verifiable”, with the criteria for “mental-physical”, which does not require some kind of physiological verification. McCoy did not suffer any kind of physical injury in the first place – this was a pure psyche injury that manifested itself physically in the form of an aggravation of migraine headaches. Maybe the Court in McCoy is recognizing a fourth kind of psychological injury – “mental-physical with no physiological verification.”

Rest assured, conditions such as “migraine headaches” and “stomach aches” are generally not directly ratable in the AMA Guides as a stand-alone physiological WPI permanent impairment, even though medically, migraine headaches can be quite debilitating. Medically, there is no known physiological verification of stress related headaches or stomach aches. Headaches and stomach aches are both conditions that are real but are based on subjective complaints only without any medically objective factors or verification.

It is apparent that the DCA opinion in McCoy specifically addresses a new type of “mental-physical” variety of psyche cases where the physiological symptoms are not verifiable. If the DCA in McCoy had cited footnote 6 in McCullough, the decision would have been much clearer to all of us. The McCoy decision is actually a very narrow one when you read it in context to existing case law involving alleged psychiatric injuries. The good faith personnel actions that substantially caused psychological stress resulting in non-verifiable physiological manifestations of migraine headaches means that Mr. McCoy’s claim should be non-compensable under section 3208.3(h) and is consistent with Footnote 6 in McCullough.

If Mr. McCoy had suffered a heart attack or aggravation of a stomach ulcer as a result of his supervisor yelling at him, assuming a supervisor yelling at a subordinate is in good faith, these physical manifestations of psychic trauma are “physiologically verifiable” and therefore would not fall under the purview of Footnote 6 in McCullough and would not be subject to a good-faith personnel action defense. In fact, the “injury” here would be the heart or gastro-intestinal system with verifiable physiologic components, and the injury would not be a “psyche” injury at all. The Supreme Court’s analysis in Lamb of job stress being a contributing factor affecting the cardio-vascular system is still good law today.

Defendants would be hard pressed to assert a good faith personnel action defense in a case like Lamb, even if the job stress was solely a result of good-faith personnel actions if the employee suffers a heart attack as a result of the stress.

First, excluding compensability for a heart attack that is caused by good faith personnel actions does not promote the underlying legislative intent of section 3208.3 to limit bogus psyche claims as reiterated in the McCoy decision.

Secondly, such a case is distinguishable from the types of limitations in psyche cases that are imposed in McCullough and as stated by the DCA at the end of the McCoy decision. Footnote 6 in McCullough would not exclude compensability where physical manifestations of stress are physiologically verifiable even though the job stress is a result of good faith personnel actions. The job stress in these cases does not cause or contribute to a psychiatric condition – it causes or contributes directly to a physical injury – the heart and cardiovascular system. The stress is a direct insult on the physiologically verifiable physical part of body. For an employee who is called into a human resources office to meet with his or her supervisor for a disciplinary action and who suffers a heart attack thereafter, a McCoy “defense” would not be viable. This is because there is no underlying psychiatric trauma with an unverifiable physiological reaction under the criteria set forth in McCullough. It would not even be a psyche case subject to analysis under section 3208.3.

The Larch and Rolda Decisions

When you are confronted with any kind of “physical-mental,” “mental-physical,” or “mental-mental” case, you must remember the sequential step analysis that is mandated by the WCAB en banc decision in Rolda vs. Pitney Bowes, Inc., 66 Cal. Comp. Cases 241 (2001). This case was a mental-mental claim involving an outside salesman who couldn’t make it as a salesman, got stressed out and filed a claim for “psychic trauma resulting in psychological injury” in the framework of Footnote 6 in McCullough, supra.

Counsel must use the Rolda decision as a checklist in prosecuting and defending any psychiatric claim:

1. The WCJ must determine whether the alleged psychiatric injury involves actual events of employment.

2. Medical evidence has to establish the psychiatric condition is predominantly caused by actual events of employment or substantially caused where the injury resulted from being the victim of a violent act.

3. The WCJ then decides whether any of the actual events of employment were personnel actions and, if so, whether any of them were lawful, nondiscriminatory, good-faith personnel actions.

4. If any lawful, non-discriminatory, good faith personnel actions contributed to the injury, medical evidence is required to determine whether such personnel actions were a substantial cause, 35-40%, of the injury. The evaluating physician must offer their opinion as to the percentage of causation for any such alleged or apparent actions.

5. The WCJ then decides if the psychiatric condition is substantially caused by lawful, good faith non-discriminatory personnel actions, then the psychiatric claim is not compensable under section 3208.3.

In the WCAB en banc decision of Larch vs. Contra Costa County, 63 Cal. Comp. Cases 831 (1998), writ denied 64 Cal. Comp. Cases 1098, the WCAB issued a decision that defines lawful, non-discriminatory, good faith personnel actions. The Larch case was cited and relied on in the WCAB en banc decision of Rolda, supra. The WCAB provides us with the following definitions to be used in a good faith personnel action defense:

1. “Personnel action” is defined as: “An employer’s disciplinary action short of termination may be considered personnel actions even if they are harsh and if the actions were not so clearly out of proportion to the employee’s deficiencies so that no reasonable manager could have imposed such discipline ...We conclude that a personnel action is conduct either by or attributable to management including such things as done by one who has the authority to review, criticize, demote, or discipline an employee. It is not necessary for the personnel action to have a direct or immediate effect on the employment status. Personnel actions may include but are not necessarily limited to transfers, demotions, layoffs, performance evaluations, and disciplinary actions such as warnings, suspensions, and terminations of employment.” See Larch, 63 Cal. Comp. Cases 831, at 835.

2. “Good Faith” is defined to mean: “To be in good faith, the personnel action must be done in a manner that is lacking outrageous conduct, is honest and with a sincere purpose, is without an intent to mislead, deceive, or defraud, and is without collusion or unlawful design.” In other words, the personnel action must be “objectively reasonable.” Id. at 837.

3. “Lawful” is defined to mean “warranted or authorized by the law having the qualifications prescribed by law not contrary to nor forbidden by the law not illegal … The word ‘lawful’ more clearly implies an ethical content and usually imports a moral substance or ethical permissibility.” Id. at 838.

4. “Non-discriminatory” means whether the employer treated applicant differently than others similarly situated without justification. Id. at 838.


Once you read the McCoy decision in the context of existing case law on psychiatric and non-psychiatric job stress cases, you can better distinguish psyche cases that have no reason to be filed in the first place and those that are legitimately caused by industrial exposure. Mr. McCoy’s case did not pass the smell test by the trial judge or by the DCA.

© Copyright 2012 by Robert G. Rassp. All rights reserved. Reprinted with permission.

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