California: Rolda Reloaded: A Creative Approach to the Dual Causation Elements of the Rolda Multi-Level Analysis

In 2001, the WCAB issued its en banc decision in Rolda v. Pitney Bowes, Inc. (2001) 66 Cal. Comp. Cases 241. Labor Code §3208.3 provides that in order for a psychiatric injury to be compensable, certain conditions must be satisfied. Labor Code §3208.3 also contains a number of exemptions and affirmative defenses, one of which is commonly referred to as the “good faith personnel action” defense set forth in §3208.3(h). The affirmative good faith personnel action defense subsequent to the Rolda en banc decision, continues to be a focal point in litigation related to the compensability of psychiatric injuries. While the multilevel analysis set forth by the WCAB in their en banc decision in Rolda has clarified and helped facilitate an analysis of whether a psychological/psychiatric injury is compensable under Labor Code §3208.3, even a cursory review of WCAB panel decisions, writ denied cases, and a few Appellate Court cases, both published and unpublished, reflect there is still ongoing confusion by physicians, practitioners, and WCJs as to the proper analysis to be conducted under Rolda. The multilevel analysis to be used by the trier of fact under Rolda is as follows:

(1) Whether the alleged psychological injury involves actual events of employment, a factual/legal determination;

(2) If so, whether such actual events were the predominant cause (i.e. accounting for 51% or more of the psychological injury), a determination which requires medical evidence;

(3) If so, whether any of the actual employment events were personnel actions that were lawful, nondiscriminatory, and in good faith, a factual/legal determination; and,

(4) If so, whether the lawful, nondiscriminatory, good faith personnel actions were a “substantial cause” (accounting for at least 35% to 40% of causation from all sources combined) of the psychological injury, a determination that requires medical evidence.

With respect to the multi-level analysis, criteria, two of the four factors involve causation determinations. The initial causation determination, which requires medical evidence, is whether actual events were the predominant cause of the alleged psychological injury, which is a greater than 50% percentage requirement.

The second causation factor is to determine whether actual employment events were personnel actions that were lawful, nondiscriminatory, and in good faith. If so, were these lawful nondiscriminatory good faith personnel actions a “substantial cause” of the psychological injury, which is a causation standard that is different than the 51% predominant cause standard i.e., a 35% to 40% range standard.

In the author’s opinion, it is these two causation factors or elements of the Rolda multi-level analysis criteria that continue to cause analytical short circuits, especially with respect to medical reporting that must comply with the substantial evidence standard.

A recent 2014 case, illustrates both the problem and a practical analytical approach to these challenging dual causation issues. In Fujimoto v. Caliber Collision Centers (2014) 2014 Cal. Wrk. Comp. P.D. LEXIS 118 (WCAB panel decision), it was found the applicant did not sustain industrial injury to his psychological system as a result of the cumulative trauma injury based on the defense being able to successfully establish the affirmative “good faith personnel action” defense. Both the underlying facts and procedural history, while not riveting, are interesting and illuminating. Applicant was employed as a body technician. The basis for his alleged psychological injury on a cumulative trauma basis involved numerous alleged work related incidents and stressors, including coworkers placing dead rats on top of his toolbox, a hole being drilled in the mens’ restroom with a snake camera photographing applicant urinating, which was taped and watched on a computer, pornographic graffiti on the restroom walls, extensive damage to his personal vehicle, and numerous other allegations.

The parties used an AME in psychiatry. The AME, in a 2011 deposition, attributed 90% of the causation of applicant’s psychological injury to work-related stress. Almost a year later in December 2012, the case was set for trial for the first time. The WCJ took the matter off calendar, ordering the parties to obtain a definitive report from the AME in psychiatry regarding factors of causation pursuant to Rolda. Two supplemental reports were obtained from the AME in psychiatry. In his first supplemental report, the AME affirmed his prior conclusion that within reasonable medical probability it was the actual events of employment that were predominant in regard to applicant’s injury to his psyche. The supplemental report also indicated some confusion as to the second causation element related to the 35% to 40% range substantial causation determination. The AME in psychiatry concluded his first supplemental report with the sentence, “Therefore, I am puzzled why I am being asked to comment upon the issue of Rolda.” Approximately a month later, the AME issued a supplemental report in which he asked the trier-of-fact to consider the applicant’s lack of credibility with respect to what had, allegedly, transpired during the course of an AME psychiatric examination.

The case was then set for a second trial in November 2013. Applicant provided detailed and graphic testimony as to numerous alleged industrial stressors. Defendant put on multiple witnesses contradicting and disputing that many of the alleged workplace/industrial stressors had ever occurred. The defense witnesses did confirm the allegation of obscene graffiti on the restroom wall was true. Following trial, the case was submitted. However, once again, related to Rolda analytical problems, the WCJ vacated his submission and noticed an intention to submit a request for an additional supplemental report from the AME in psychiatry. Rather than leaving it to the parties to develop the record, the WCJ wrote the AME in psychiatry requesting a supplemental report detailing both the format and analysis the AME should follow in order to assist the WCJ in determining the two causation elements i.e., the predominant cause element and the substantial cause element of the Rolda multi-level analysis. The WCJ’s letter/interrogatory reads as follows:

“[Please provide a supplemental report that describes in detail, in accordance with Rolda, all the workplace and all the non-industrial related events and/or issues that combined caused the Applicant’s psychological injury. You are then to assign a percentage of causation separately to each individual work-related and/or non-industrial event(s) and/or issue(s) that, when combined, equal 100% of the causation of the Applicant’s psychological injury. You are not to combine percentages as to any multiple factors and/or issues, either industrial or non-industrial.

It will ultimately be up to me to decide which workplace activities are actual events (i.e., which of the event(s) described by the Applicant happened or not) and whether those events that I have deemed to be actual events are otherwise legitimate, events that I have deemed to be actual events are otherwise legitimate, non-discriminatory, good faith personnel actions. Based on this, I can determine if the actual events of employment, if added together, will result in them being the predominant cause (i.e., more than 50%) of the Applicant’s psychological injury, and whether those actual causes were substantially caused (i.e., 35% to 40%) by lawful, nondiscriminatory, good faith personnel actions.

Your discussion should follow of the following format:

[Employment Event #1] – [Percentage of Causation]

[Employment Event #2] – [Percentage of Causation]

[Non-industrial Factors and/or Events #1] – [Percentage of Causation]

[Non-industrial Factors and/or Events #2] – [Percentage of Causation]

Total: 100%”

In response to the WCJ’s letter, the AME identified eleven distinct and discrete industrial-related events/issues and one nonindustrial factor or event. The eleven industrial employment events totaled 90% and the nonindustrial factor or factors consisting of a preexisting past of a dependent personality which contributed 10%, with a conclusion of employment events 90% and nonindustrial factors 10%.

However, the WCJ found the applicant not credible with respect to all but one of the eleven industrial factors. The only industrial factor he found credible was the pornographic restroom graffiti. Since the applicant lacked credibility and the WCJ found the defense witnesses’ testimony credible, all of the alleged employment/work factors except one were deemed not to be actual events of employment by the WCJ. The only “actual event” was the obscene graffiti drawn on the restroom walls. This was not considered by the WCJ to be a lawful nondiscriminatory good faith personnel action. However, this one “actual event” of employment only constituted 4% of the causation of applicant’s psychological injury, far short of the 35% to 40% required. “Therefore given the lack of predominate causation due to ‘actual events’ of employment, the Applicant cannot be deemed to have suffered an industrial psychological injury.”

The WCJ by developing the record in the form of his letter/interrogatory directed the AME to identify and describe in detail all the combined industrial and non-industrial issues or activities that were allegedly the cause of the Applicant’s psychological injury. The WCJ directed the AME to separately assign a percentage figure and not combine percentages related to multiple factors. This approach resulted in a clear roadmap for the trier of fact to determine which of the discrete individual activities were “actual events” and in turn if those “actual events” were legitimate non-discriminatory, good faith personnel actions.

It is suggested that the analytical approach formulated by the WCJ in his letter/interrogatory to the AME in this case may be a useful tool by the parties in drafting letters to reporting physicians in resolving the challenging and perplexing dual causation elements required by Rolda.

It is also important to note that the “good faith personnel action defense” and the Rolda multi-level analysis are still applicable notwithstanding SB863 and the changes to Labor Code § 4660.1(c)(1) attempting to limit permanent disability compensation for sleep disorders, sexual disorders, and psychological/psychiatric disorders which develop as a “compensable consequence” of physical injuries.

For other recent cases involving application of the Rolda analysis see: Gambina v. WCAB (2013) 78 Cal. Comp. Cases 1225; 2013 Cal. Wrk. Comp. LEXIS 170 (writ denied); McKinney v. WCAB (2014) 79 Cal. Comp. Cases 1456; 2014 Cal. Wrk. Comp. LEXIS 137 (writ denied); Slack v. Cottage Health System (2014) 2014 Cal. Wrk. Comp. P.D. LEXIS 207 (WCAB panel decision); County of Sacramento v. WCAB (Brooks) (2013) 215 Cal.App.4th 785; 2013 Cal. App. LEXIS 311; 78 Cal.Comp.Cases 379; 2013 Cal. App. LEXIS 348 (order modifying opinion but no change in judgment); San Francisco Unified School Dist. v. WCAB (2013) 109 Cal.App.4th 1; 2010 Cal. App. LEXIS 1943; 75 Cal.Comp.Cases 1251.

© Copyright 2015 Raymond F. Correio. All rights reserved. Reprinted with permission.