State of California Division of Worker's Compensation, Workers Compensation Appeals Board, Case Nos. ADJ3474065 and SFO0502322, Katherine Zalewski, Administrative Law Judge.
The opinion of the court was delivered by: Simons, J.
CERTIFIED FOR PUBLICATION
Labor Code section 3208.3*fn1 provides that a psychiatric injury is compensable only if certain conditions are satisfied. Section 3208.3, subdivision (h) (section 3208.3(h)) provides, in part, that no compensation shall be paid for a psychiatric injury "if the injury was substantially caused by a lawful, nondiscriminatory, good faith personnel action." Section 3208.3, subdivision (b)(3)*fn2 defines " 'substantial cause' " to mean "at least 35 to 40 percent of the causation from all sources combined."
In this case, the Workers' Compensation Administrative Law Judge (ALJ) concluded that respondent Linda Cardozo suffered a psychiatric injury caused predominately by industrial factors. The ALJ also concluded that Cardozo's claim for compensation was not barred by section 3208.3(h) after finding that lawful, nondiscriminatory, good faith personnel actions constituted less than 35 percent of all industrial and non-industrial causes of her psychiatric injury. San Francisco Unified School District (District) filed a petition for writ of review arguing that the ALJ should only have considered the total of the industrial causes and disregarded the non-industrial causes when calculating the percentage of the psychiatric injury attributable to good faith personnel actions. If this argument were correct, it would require a recalculation, leading to a denial of compensation to Cardozo under section 3208.3(b)(3) and section 3208.3(h). However, we reject District's argument and affirm.*fn3
Cardozo, an elementary school bilingual teacher for District for 20 years, submitted a claim for workers' compensation benefits, claiming temporary disability from June 10, 2006 to August 21, 2007.*fn4 She claimed a cumulative injury to her psyche arising out of her employment, with the cumulative trauma period running through June 9, 2006. Cardozo claimed her injury was caused by the stress of teaching a class in two languages that combined two grade levels, and her difficulties with her school's principal. District claimed Cardozo's alleged injury was caused by " 'good faith personnel actions,' " i.e., unsatisfactory performance reviews and written disciplinary warnings, and was therefore barred under section 3208.3(h).
The parties selected Dr. Allan Kipperman as the agreed medical examiner and Cardozo first saw him in August 2007. However, at the November 2008 hearing, the ALJ granted District's motion to refer Cardozo to an independent medical examiner to render an opinion on the issue of apportionment as to "the industrial and non-industrial factors of disability" and as to "the extent of the responsibility for [Cardozo's] current condition that may be attributed to the alleged good faith nondiscriminatory personnel action." The parties selected Dr. Gordon Baumbacher as the independent medical evaluator.
Cardozo was evaluated by Baumbacher on March 25, 2009. In his April 17, 2009 report, Baumbacher apportioned 15 percent of Cardozo's impairment to factors associated with her personal circumstances and 85 percent to factors associated with her work setting at District's Bessie Carmichael School (BCS). Baumbacher also concluded that of the causal factors attributable to Cardozo's employment at BCS, 60 percent were associated with difficulties encountered in daily teaching for over 20 years, and 40 percent were associated with nondiscriminatory good-faith personnel actions including performance evaluations, decisions regarding future training and reprimands by the BCS principal. Baumbacher then concluded that 51 percent of Cardozo's overall impairment would be apportioned to factors regarding classroom teaching (60 percent of 85 percent), and 34 percent would be apportioned to factors associated with the BCS principal (40 percent of 85 percent).
On January 20, 2010, ALJ Zalewski issued the following findings: (1) while employed between June 9, 2005 and June 9, 2006, Cardozo sustained injury to her psyche arising out of and in the course of her employment; (2) her psychiatric injury was caused 15 percent by non-industrial factors, 51 percent by Cardozo's activities as a classroom teacher, and 34 percent by "personnel actions" undertaken by the BCS principal; and (3) District did not meet its burden of proof regarding its assertion that Cardozo's claim is barred by the "good faith personnel action defense" set forth in section 3208.3(h). In her decision, the ALJ explained: "Thus, according to . . . Baumbacher 34 [percent] of the causation of the injury is attributable to what [District] argue[s was] lawful, nondiscriminatory good faith personnel actions. This falls short of the 35 to 40 percent range set out in [s]section 3208.3. [¶] That being so, as a matter of law, [District] cannot defeat [Cardozo's] claim by asserting the 'good faith personnel action' defense. [¶] I therefore find that [Cardozo] has met her burden of proving a compensable injury to her psyche, and that [District has] not met [its] burden of proving that the injury was substantially caused by lawful, nondiscriminatory good faith personnel actions."
ALJ's Decision on Reconsideration
Thereafter, District sought reconsideration of the ALJ's decision, asserting that the finding that Cardozo's injury was caused 15 percent by non-industrial causes, 51 percent by her activities as a classroom teacher, and 34 percent by lawful, nondiscriminatory, good faith personnel actions was erroneous. As the ALJ framed it, resolving District's challenge required a determination whether the calculation of "substantial cause" should be limited to a consideration of only the industrial causes or should include consideration of the 15 percent apportioned to non-industrial causes. The ALJ concluded that when read together, the plain meaning of section 3208.3(b)(3) and section 3208.3(h) is that " 'all causes,' whether industrial or not, must be taken into account in determining whether or not a psychiatric injury was substantially caused by 'good faith personnel actions.' " The ALJ also concluded that this interpretation is not inconsistent with the Legislature's stated intent of reducing psychiatric injury claims. "Section 3208.3(b)(1)'s requirements that actual events of employment be involved, as opposed to generalized concerns about the financial stability of the employer . . . , and that those events were the predominant cause of the injury, are not disturbed."
The Workers' Compensation Appeals Board (WCAB) adopted and incorporated the ALJ's decision denying reconsideration. This timely writ petition followed.