January 2011

Non-Industrial Apportionment is Part of the “Substantial Cause” Test

The California First District Court of Appeal held that pre-existing, non-industrial PD in a psyche case can be used to increase an employer’s liability by making it more difficult for the employer to raise the “good faith personnel” defense.

In the case of Cardozo v. San Francisco Unified School District, the reporting psychiatrist testified at his deposition that 60% of the Applicant’s cumulative trauma psyche injury was due to difficulties encountered in her daily job as a teacher and 40% was the result of personnel actions taken against her by her Principal for performance issues. The doctor went on to note that a 15% cause of her injury and psyche PD was pre-existing, non-industrial factors.

By taking 85% (100%-15% non-industrial = 85% industrial) of the 40% due to personnel actions, the doctor found that only 34% of the injury was apportioned to causal factors associated with events involving good faith personnel actions (85% x 40% = 34%). As established in the Rolda case, the substantial cause threshold for an employer’s good faith personnel defense is a minimum of 35% and thus that threshold could not be met in this case based on the doctor’s calculations. The WCJ in her decision found the following causes: 15% non-industrial, 51% (85% of 60%) due to Applicant’s daily job duties and 34% due to personnel actions.

Defendant argued that this method of calculation was unjust because apportionment to non-industrial causation was used to penalize the employer.  The 15% apportionment to non-industrial factors – disability that the employer did not cause and was not responsible for – was used it to mathematically reduce the effective percentage due to personnel actions. In this instance, the result is a reduction from 40% which meets the substantial cause threshold to 34%, which does not.  Had the apportionment to non-industrial factors not existed or not been applied in assessing the workplace stressers, the percentage attributable to personnel actions would have remained at 40% and the employer’s good faith personnel defense would apply.

The Court of Appeal acknowledged that the express legislative intent of Labor Code section 3208.3 was to reduce employer liability in psyche injury claims, especially those based in part on good-faith personnel actions, but nevertheless used non-industrial apportionment to weaken that defense and therefore increase employer liability.  Basically, the Court punted to the state legislature to fix this statutory problem.

Meter Maid Assault Not a “Sudden and Extraordinary” Event

A WCAB panel rejected the psyche injury claim of a traffic officer who was struck by the automobile of a driver she was trying to cite.  The defendant admitted liability and provided benefits for the orthopedic injuries, but denied the psyche as a part of body because the applicant had been employed for less than 6-months.  Jackson c. City of Los AngelesDepartment of Transportation.  The Board relied on the 6-month rule found in Labor Code section 3208.3(d), and noted that the “sudden and extraordinary” event exception to that rule did not apply.  The events were admittedly upsetting, they were not extraordinary, because interaction with irate individuals is rather common for traffic officers, who receive specific training on how deal with angry people and get out of harm’s way.

There is no Geographic Limit on MPN Physicians

A WCAB panel in Menicucci v. State of California Dept. of Transportation concluded that an applicant is entitled to be treated by a doctor selected from the employer’s medical provider network (MPN) regardless of the distance from the doctor’s office and the applicant’s home.  In this case, the applicant lived in Rohnert Park and selected Dr. Jamasbi in Oakland from the MPN as his treater, some 51.61 miles from his home.  The Board rejected application of Labor Code sections and Regulations that provide certain geographic restrictions regarding the availability of MPN physicians.  Those rules provide minimum distances for physicians to be made available within a reasonable geographic radius in order for an MPN to be valid.  However, those same rules really do not stop and applicant from choosing to be treated by someone within the MPN beyond those minimum distances, according to the WCAB panel.

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