ADJ10845616 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Defendant petitioned for reconsideration of the Findings, Order and Award issued on 08/18/2021; the WCAB panel denied the petition.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

AOE/COEApplicant prevailedpsychiatric

The WCJ and WCAB found the applicant's psychiatric injury arose out of and in the course of employment and was not barred by Labor Code section 3208.3(h) because the personnel actions were not lawful, nondiscriminatory, or taken in good faith.

From the decision · page 15Labor Code section 3208.3 governs the compensability of claims of psychiatric injury. Under that statute, a compensable psychiatric injury occurs where (1) the alleged psychiatric injury involves actual events of employment; (2) the actual employment events were the predominant cause of the psychiatric injury; and (3) if the actual employment events were personnel actions which were a substantial cause of the injury, such personnel actions were unlawful, discriminatory or not taken in good faith. (Rolda v. Pitney Bowes, Inc. (2001) 66 Cal. Comp. Cases 241, 242, (Appeals board en banc decision)) The Legislature's intent in enacting Labor Code section 3208.3 was "to establish a new and higher threshold of compensability for psychiatric injury..." (Labor Code section 3208.3(c).) "In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of that psychiatric injury." (Labor Code section 3208.3(b) (1)) "Predominant as to all causes" means that `the work related cause has greater than a 50 percent share of the entire set of causal factors.' (Dept. of Corrections v. Workers' Comp. Appeals Bd. II, I (Garcia) (1999) 76 Ca1. App. 4th 810, 816 [64 Ca1.Comp.Cases 1356, 1360];

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant sustained psychiatric injury during cumulative period 10/21/2015 to 10/21/2016 arising out of employment

Favours Applicant prevailed

Supports compensability and disability findings

From the decision · page 3Defendant, California Department of Corrections and Rehabilitation, legally uninsured and adjusted by State Compensation Insurance Fund, (hereinafter referred to as "defendant") petitions for reconsideration of the Findings, Order and Award that issued in this case on 08/18/2021. In the Findings, Order and Award that issued on 08/18/2021 I found applicant (hereinafter referred to as "applicant") sustained psychiatric injury during the cumulative period 10/21/2015 to 10/21/2016 arising out of and in the course of employment with defendant and that his claim is not barred by Labor Code section 3208.3(h). I also found applicant's injury caused total temporary disability from 10/26/2016 to mid-May 2017 and partial temporary disability from mid-May 2017 to 12/13/2017 and that applicant became permanent and stationary on 12/13/2017. In the Findings, Order and Award that issued on 08/18/2021 I also found applicant's injury caused permanent party disability of 29 percent after adjustment for age and occupation and apportionment and a need for future medical treatment.

Applicant was totally temporarily disabled from 10/26/2016 to mid-May 2017 and partially temporarily disabled from mid-May 2017 to 12/13/2017

Favours Applicant prevailed

Supports award of temporary disability benefits

Applicant's permanent disability rated at 29 percent after adjustment for age, occupation, and apportionment

Favours Applicant prevailed

Supports award of permanent disability benefits

From the decision · page 40In my Opinion on Decision, I determined applicant's industrial psychiatric injury caused permanent disability of 29 percent (after adjustment for age and occupation and after apportionment) based on Dr. Bokarius's providing a GAF of 61 in his 12/26/2017 report. (Joint Exhibit 114 at pages 1, 12 § 15) Defendant does not argue that Dr. Bokarius's opinions are not substantial medical evidence nor does defendant take issue with my rating of the GAF of 61 or the fifteen percent non-industrial apportionment I found. Defendant does claim that I erred in not relying on Dr. Bokarius's later 03/09/2018 deposition testimony in which he opined to a GAF of 68 or 67 in response to a hypothetical question of applicant's work capacity as working full time with no work restrictions at Santa Rita Jail posed by defendant. Defendant's claim is without merit. When specifically asked whether applicant met the criteria for a GAF higher than 61 to 70, Dr. Bokaris testified in the negative, declined to answer a hypothetical he did not think was accurate, and did not change his impairment opinion of a GAF of 61. (Joint Exhibit 107 at pages 1, 64 -, 93 § 109)

ADJ10845616 · November 8, 2021

What the panel ordered

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