What the panel ordered
Order issued March 30, 2021, is rescinded; matter returned to WCJ for further proceedings consistent with the opinion after reconsideration.
Petition for reconsideration of the Findings and Order issued March 30, 2021, by the WCJ, granted to further study factual and legal issues; WCJ Report and Recommendation filed, recommending denial of reconsideration; WCAB rescinds the Findings and Order and returns the matter to the trial level for further proceedings consistent with the opinion after reconsideration.
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.
The WCJ found defendant's denial untimely, entitling applicant to presumption of compensability under section 5402(b), but also allowed defendant to raise the good faith personnel action defense under section 3208.3(h). The WCJ failed to perform the required Rolda analysis to determine if defendant met its burden of proof, so the findings were vacated and the matter remanded for further proceedings.
From the decision · page 1Applicant seeks reconsideration of the "Findings and Order" (F&O) issued on March 30, 2021, by the workers' compensation administrative law judge (WCJ). The WCJ found, in pertinent part that defendant's denial of applicant's claim of cumulative injury to her psyche and in the form of headaches, insomnia, and internal complaints was untimely and that applicant was entitled to the presumption of compensability pursuant to Labor Code2, section 5402(b)3; however, the WCJ further found that that applicant's injury to psyche was predominantly caused by lawful, non- discriminatory, good-faith personnel actions per section 3208.3(h) and ordered that applicant take nothing on her claim.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant's denial letter was issued 96 days after claim filing, exceeding the 90-day limit under section 5402(b).
Favours Applicant prevailed
This triggered the presumption of compensability in favor of applicant.
From the decision · page 2Applicant filed her claim on April 26, 2018. (Applicant's Exhibit 3; Minutes of Hearing and Summary of Evidence, February 22, 2021, p. 3, line 20.) Defendant issued its denial letter on July 31, 2018, which was 96 days later. (Defendant's Exhibit G, Denial Letter, July 31, 2018.) The WCJ found that defendant's denial was untimely, and that applicant was entitled to the presumption of compensability per section 5402. (F&O, supra at Findings 2 through 5.) However, defendant also raised an affirmative defense that applicant's injury was substantially caused by lawful, nondiscriminatory, good-faith personnel actions.
The WCJ did not perform the required Rolda analysis to determine if defendant met its burden of proof on the good faith personnel action defense.
Favours Applicant prevailed
Without this analysis, the WCJ's findings on the defense were vacated and the matter remanded for further proceedings.
From the decision · page 5No Rolda analysis was performed by the WCJ. The WCJ should have examined each element of psychiatric injury and determined whether it was an actual event of employment, whether it was a personnel action, and if it was a personnel action, whether it was conducted lawfully, without discrimination, and in good faith. Without such an analysis, the findings of fact must be vacated.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Opined on industrial causation of psyche injury with percentages assigned to supervisor actions, personnel actions, and nonindustrial factors.
The QME report was in evidence and showed a detailed causation analysis relevant to the good faith personnel action defense.
From the decision · page 2In the F&O, the WCJ stated that "Applicant did not submit a psychiatric report in the form required by Labor Code section 3208.3(a)." (F&O, supra at p. 11.) However, applicant was evaluated by a qualified medical evaluator (QME) whose report is in evidence. The QME opined on industrial causation of psyche injury as follows:
Opined that applicant's injury was 100% industrial to various employment events.
The primary treater's report was submitted and opined fully industrial causation, relevant to the compensability issue.
From the decision · page 3Applicant also submitted a report of a primary treater, who generally opined that applicant's injury was 100% industrial to various employment events. (See Applicant's Exhibit 5, Report of Gayle Windham, Ph.D., May 2, 2018, p. 8.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5402(b)
If liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under Section 5402(b).
The WCJ found defendant's denial untimely, triggering the presumption of compensability for applicant's injury.
From the decision · page 4(Lab. Code, § 5402(b)(1).) Section 3208.3(h), which provides for the "good faith personnel action" defense, states:
Labor Code section 3208.3(h)
No compensation shall be paid for psychiatric injury substantially caused by lawful, nondiscriminatory, good faith personnel action under Section 3208.3(h). The burden of proof rests with the party asserting the defense.
Defendant raised the good faith personnel action defense, which the WCJ allowed but failed to fully analyze.
From the decision · page 4(h) No compensation under this division shall be paid by an employer for a psychiatric injury if the injury was substantially caused by a lawful, nondiscriminatory, good faith personnel action. The burden of proof shall rest with the party asserting the issue.
Rolda v. Pitney Bowes, Inc. (2001) 66 Cal.Comp.Cases 241 (Appeals Board en banc)
Psychological evaluators must list all factors causing psychological injury and disability, address the percentage of causation for each factor, and determine if the injury was predominantly caused by lawful personnel actions to apply the good faith defense under Section 3208.3(h).
The WCJ failed to perform the required Rolda analysis to determine if defendant met its burden of proof on the good faith personnel action defense.
From the decision · page 5In Rolda v. Pitney Bowes, Inc. (2001), 66 Cal.Comp.Cases 241, 245-246 (Appeals Board en banc), we addressed the factors that a psychological evaluator must consider in opining on causation of psychological injury and disability under section 3208.3. Per Rolda, the evaluator is required to list all factors causing psychological injury, address the percentage of causation that each factor contributes to psychological injury, list all factors causing psychological permanent disability, and address the percentage of causation that each factor contributes to permanent disability.
What proof carried it
The evidence the panel weighed, by kind.
Defendant's denial letter was issued 96 days after claim filing, exceeding the 90-day limit under section 5402(b).
From the decision · page 2Applicant filed her claim on April 26, 2018. (Applicant's Exhibit 3; Minutes of Hearing and Summary of Evidence, February 22, 2021, p. 3, line 20.) Defendant issued its denial letter on July 31, 2018, which was 96 days later. (Defendant's Exhibit G, Denial Letter, July 31, 2018.) The WCJ found that defendant's denial was untimely, and that applicant was entitled to the presumption of compensability per section 5402. (F&O, supra at Findings 2 through 5.) However, defendant also raised an affirmative defense that applicant's injury was substantially caused by lawful, nondiscriminatory, good-faith personnel actions.
The WCJ did not perform the required Rolda analysis to determine if defendant met its burden of proof on the good faith personnel action defense.
From the decision · page 5No Rolda analysis was performed by the WCJ. The WCJ should have examined each element of psychiatric injury and determined whether it was an actual event of employment, whether it was a personnel action, and if it was a personnel action, whether it was conducted lawfully, without discrimination, and in good faith. Without such an analysis, the findings of fact must be vacated.
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About this page
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