WCAB Case No. ADJ1898181 (SAC 0367383)
The opinion of the court was delivered by: Nicholson , J.
CERTIFIED FOR PUBLICATION
ORIGINAL PROCEEDING; petition for writ of review from a decision of the Workers' Compensation Appeals Board. Annulled and remanded.
A worker's psychiatric injury is not compensable "if the injury was substantially caused by a lawful, nondiscriminatory, good faith personnel action." (Lab. Code, § 3208.3, subd. (h).)*fn1 In this case, the worker sustained a psychiatric injury after encountering trouble at work. An agreed medical evaluator concluded that the injury was not substantially caused by personnel actions, and the Workers' Compensation Appeals Board (Board) awarded compensation. However, the factual basis of the evaluator's opinion, as revealed in her reports and deposition, do not constitute substantial evidence supporting her conclusion that the worker's injury was not substantially caused by personnel actions. We therefore annul the award and remand to the Board for further proceedings.
The question presented here is whether the causes of Brooks's psychiatric injury were personnel actions, not whether those actions were lawful, nondiscriminatory, and taken in good faith. With that understanding, we refer to the defense under section 3208.3, subdivision (h) as the "personnel action defense" because it is unnecessary to be more specific.
Respondent Michael Brooks started working as a supervising probation officer at the County's juvenile hall in 2007, and was apprised of a pending lawsuit alleging use of excessive force by the officers there. He observed problems he believed bordered on violation of protocols and felt that the Security Emergency Response Team (SERT), which he supervised, resisted and undermined his authority and supervision.
In November 2007, Brooks counseled two of the SERT officers as a result of an incident with a ward. Brooks informed his supervisor that the SERT officers resisted his instructions concerning restraining and movement of wards.
On December 14, 2007, Assistant Chief Deputy John O'Brien met with Brooks and gave him a memo entitled "Admonition & Notice of Internal Affairs Investigation."
Concerning the memo and Brooks's response, the workers' compensation judge (WCJ) stated:
"The memo advised [Brooks] of the allegations by Ron Parker, a [SERT] member, which formed the basis of the internal affairs investigation. The memo directed [Brooks] to refrain from any supervisory duties which involve Ron Parker, refrain from abusive and or indiscreet language toward Ron Parker, and refrain from any other actions that could reasonably be construed as an attempt to intimidate or threaten Ron Parker. [Brooks] believed that these directives were unreasonable when it was his job to supervise Ron Parker. [Brooks] believed that with these directives he would not be able to intervene in an emergency.
"[Brooks] asked to be reassigned or placed on administrative leave pending completion of the investigation. [Brooks's] requests were denied. [Brooks] did not feel that the Chiefs listened to his concerns or provided a reasonable alternative. However, the employer allowed [Brooks] to change his shifts to reduce contact with Ron Parker. [Brooks] went to work on January 2, 2008 and saw that Ron Parker was scheduled to work. [Brooks] was too upset to work and filed a claim."*fn3
Psychiatrist Ann E. Allen, M.D., the agreed medical evaluator, diagnosed Brooks with adjustment disorder with depressed and anxious moods. Dr. Allen expressed her opinion that the following factors caused Brooks's disorder:*fn4 (1) Parker's complaint, (2) the internal affairs investigation, and (3) Brooks's feelings that his supervisors were not supporting him.
In response to Brooks's claim for injury to his psyche, the County denied liability, arguing that his claim was barred by the personnel action defense of section 3208.3. A WCJ issued a decision in Brooks's favor, but the Board rescinded the decision and returned the matter to the trial level for further development of the record.
After further development of the record, the WCJ again issued a decision in Brooks's favor. The Board affirmed the WCJ's decision, with one dissenting commissioner.
The County filed a petition for writ of review, and we order issuance of the writ.
On appeal, the County contends that Dr. Allen's reports and testimony do not constitute substantial evidence that the County's personnel actions were not a substantial cause of Brooks's psychiatric injury. According to the County, the evidence does not support Dr. Allen's attempt to apportion the injury to the various causes. We agree.*fn5
A. Personnel Action Defense
" 'Labor Code section 3208.3 was enacted as part of the Margolin-Greene Workers' Compensation Reform Act of 1989. It is part of the Legislature's response to increased public concern about the high cost of workers' compensation coverage, limited benefits for injured workers, suspected fraud and widespread abuses in the system, and particularly the proliferation of workers' compensation cases with claims for psychiatric injuries.' [Citation.]" (Lockheed Martin Corp. v. Workers' Comp. Appeals Bd. (2002) 96 Cal.App.4th 1237, 1242 (Lockheed).) " 'The Legislature's expressed intent in enacting Labor Code section 3208.3 was to establish a new and higher threshold for compensability for psychiatric injury.' [Citations.]" (Lockheed, supra, at p. 1242; § 3208.3, subd. (c).) To further this more restrictive policy, subdivision (h) provides: "No compensation under this division shall be paid by an employer for a psychiatric injury if the injury was substantially caused by a ...