California: Physical Injury That Is a Result of Work Related Stress

The ongoing confusion under McCoy of whether causation thresholds and affirmative defenses provided for in Labor Code § 3208.3 (lawful, good-faith, nondiscriminatory personnel action) apply to a physical injury that is the manifestation of work related stress

In Stolp v. California Department of Developmental Services, 2015 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB affirmed the WCJ’s finding that the applicant peace officer’s claim for cumulative psychiatric and cardiovascular injury was barred by the lawful, good-faith, nondiscriminatory personnel action defense under Labor Code § 3208.3(h) [LC 3208.3] and pursuant to the analysis in Rolda v. Pitney Bowes, Inc. (2001) 66 Cal. Comp. Cases 241 [66 CCC 241] (Appeals Board en banc opinion).

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The WCAB found that the applicant’s psychiatric injury was caused by the investigation and disciplinary action undertaken by the employer in response to the applicant’s serious mishandling of an incident involving allegations of a staff member “tasing patients” at the Sonoma Developmental Center. The WCAB concluded that the personnel actions taken by the employer were conducted in good-faith given the seriousness of the applicant’s conduct. Furthermore, the WCAB found that the agreed medical examiner’s reports established that the applicant’s cardiovascular injury was directly and solely caused by the applicant’s psychiatric condition, which the WCAB found was non-compensable under Labor Code § 3208.3(h). Applying the holding in County of San Bernardino v. W.C.A.B. (McCoy) (2012) 203 Cal.App.4th 1469, 77 Cal. Comp. Cases 219 [77 CCC 219], the WCAB concluded that the applicant’s cardiovascular injury, having been solely caused by the applicant’s non-compensable psychiatric injury, was also barred.

In Wang v. Southern California Edison, 2015 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB rescinded the WCJ’s finding that the applicant senior engineer’s claim for industrial heart injury caused by stress from being placed in the employer’s performance improvement program was barred by the lawful, good-faith, nondiscriminatory personnel action defense under Labor Code § 3208.3(h). The WCAB concluded that the plain reading of Labor Code § 3208.3(h) limits its application to psychiatric injuries. Although cumulative stress can result in an injury, stress alone does not constitute a psychiatric injury. Heart conditions by legal definition are physical, not psychiatric, injuries, and in order for a heart condition to fall within the “mental-physical” definition of a psychiatric injury, the evidence must establish that the industrial causation of the heart condition flows entirely from the psychiatric injury. The WCAB further found that the holding in County of San Bernardino v. W.C.A.B. (McCoy), upon which the defendant relied in support of its position that the applicant’s heart injury was barred, involved a limited exception for a physical condition that was solely the consequence of a non-compensable psychiatric injury, whereas, here, no psychiatric injury was pled. When the defendant contends that the applicant’s claimed physical condition is the sole result of a non-compensable psychiatric injury, the defendant must prove that the applicant suffered a psychiatric injury and the psychiatric injury was not compensable pursuant to Labor Code § 3208.3 and the psychiatric condition was the sole industrial cause of the physical condition in question. According to the WCAB, the record in this case requires further development on all issues relating to the parties’ respective burdens of proof under McCoy, as clarified by the WCAB.

Commissioner Sweeney, concurring separately, found that the holding in McCoy does not apply here because the applicant suffered only a physical injury caused by work stress and no psychiatric injury whatsoever, that the physical injuries and psychiatric injuries require different burdens of proof, and that the good-faith, nondiscriminatory personnel action defense does not apply to physical injuries such as the heart injury incurred by the applicant.

Commentary:

These cases reflect the ongoing uncertainty in the workers’ compensation community over whether the causation thresholds and affirmative defenses provided for in Labor Code § 3208.3 apply to a physical injury that is the manifestation of work related stress. These types of injuries might include headaches, hypertension, heart or a variety of internal problems. In Wang, the employee pled an injury to his heart; in Stolp, the employee claimed injury to his cardiovascular system and psyche.

These cases struggle to apply the Fourth Appellate District Court of Appeal’s decision in McCoy. The reason they struggle is that McCoy is a very poorly reasoned decision. McCoy found that where the physical manifestation of stress was “directly and solely” the result of a psychological injury suffered as a result of good faith personnel actions, the claim is barred pursuant to Labor Code § 3208.3(h). The problem is that a physical injury, even a physical injury that is the manifestation of work stress, is not the “result of” a psychological injury. The court fails to acknowledge the very significant distinction between a physical injury caused by work related stress and a psychiatric injury caused by work related stress.

By failing to make this distinction, McCoy can be interpreted broadly, as in Stolp, or more limitedly, as in Wang. The Stolp and Wang decisions suggest that the outcome of these cases may hinge on whether the employee has alleged an injury to the psyche as well as the physical condition or just the physical condition independent of any claim of psychiatric injury. The majority in Wang specifically noted the significance of neither the defense nor applicant alleging injury to the employee’s psyche in that case. The concurring opinion in Wang actually got it right when she pointed out that the Labor Code § 3208.3 causation thresholds plain and simply do not apply to physical injuries. She correctly argued that the causation thresholds are different for the two types of injuries and they should stay that way.

Whether this issue makes its way up to another appellate district court of appeal remains to be seen. As long as McCoy is the controlling authority on the issue, the only guarantee is that the system is going to have ongoing confusion and litigation over whether or not the provisions of Labor Code § 3208.3 apply to physical conditions that are the result of work related stress.

Read the Stolp noteworthy panel decision.

Read the Wang noteworthy panel decision.

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