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An Employee’s Subjective Perception of Stress ...

An Employee’s Subjective Perception of Stress Does Not Constitute Actual Events of Employment Consistent with the New and Higher Threshold for Psychiatric Injuries Where That Perception Arises Out Of the Employee's Own Misconduct

In a published decision, the Third District Court of Appeals granted review and affirmed a WCAB decision denying benefits for a claimed psychiatric injury to an employee who berated her coworkers. The court adopted language from a leading treatise (Hanna, California Law of Employee Injuries and Workers Compensation) that the enactment of Labor Code Section 3208.3 was intended to overrule the Albertsons standard of subjective misperception that the employment was stressful, by imposing more stringent requirements for psychological injuries than the subjective standard set forth in Albertsons. The employee must now establish objective factors of harassment, persecution, or other basis for the alleged psychiatric injury.

Rosemary Verga was a staff representative in the Human Resources Department for United Airlines. She claimed injury to her psyche as a result of a departmental meeting in which her coworkers aired concerns and complaints regarding her behavior. According to testimony by her supervisor, Verga was rude to other employees and inflexible. During the departmental meeting, other coworkers aired concerns regarding Verga. One employee testified that the only way they could speak was to interrupt Verga, who was agitated and "just would not stop" yelling at them. Another coworker testified that Verga was not polite, not a team player, not tactful, and the office was very tense due to Verga's erratic and aggressive behavior. The meeting lasted for several hours. When Verga was given an opportunity to respond, she was overwhelmed by the critical backlash against her and reduced to tears. Later, Verga's job duties were changed after she complained about her supervisor to his boss.

The court construed Labor Code Section 3208.3(b)(1) as requiring a claimant to establish objective evidence of harassment, persecution, or other such basis for alleged psychiatric injury. The court found that Verga was the predominant cause of her psychiatric injury because her inappropriate conduct toward coworkers created their disdain toward her. The Court went on to say that "…there are limits when an employee intentionally causes his or her own injury. To allow an employee to harass coworkers and, when they respond unfavorably, to claim a stress-related injury to the employee's psyche would increase, not reduce workers compensation claims and create the potential for abuse of the system".

In so holding, the court acknowledged that irrespective of the fault of any party, there are limits on compensation for employees intentionally cause their own injuries. While California's no-fault workers compensation system is intended to permit recovery when an employee's own negligence causes his or her injury; it does not prohibit the Legislature from eliminating awards based on the employee's willful wrongdoing or misconduct.

The court rejected arguments that the employee's subjective perception of the events of employment (the Albertsons standard) and found incompatible with the intent of the legislature to establish a new and higher threshold of compensability. This threshold requires objective evidence of harassment or similar facts. The trial court concluded that the testimony of Verga’s supervisor and coworkers was more reliable than her own, and this was affirmed on appeal.

The rule can therefore be stated as follows:

Where the predominant cause of an employee's psychiatric injury claim is the employee's own misconduct toward their coworkers, the threshold of psychiatric compensability for actual events of employment is not met.

We believe this decision will enable a defendant to establish facts in an appropriate case demonstrating that an employee's own conduct led to the events which gave rise to their perception of stress. These events will not be the “actual events of employment” where action is taken in response to the employee's own conduct unless they involve evidence of harassment, persecution, or other such basis for the alleged psychiatric injury.

Fraudulent Insurance Claims

Amendments to Insurance Code 1871.7 allow the imposition of civil penalties for each fraudulent claim presented to an insurance company by a defendant. The amendments specify the amount of civil penalty to be awarded to the plaintiff by the court in cases where the district attorney or Insurance Commissioner intervenes and proceeds with the action and in cases where neither intervene. The amendments require that a civil action for penalties be filed within eight years from the date of the violations. [AB 1050, Chapter 8 85, Eff. 1-1-2000]

Firefighters and Peace Officers

Amended Labor Code § 4850 allows specified peace officers employed on a regular, full-time basis by a county of the first class, and specified employees of a probation office, to collect leave of absence benefits in lieu of temporary disability or maintenance allowance payments while disabled by an industrial injury. [AB 224, Chapter 270, Eff. 1-1-2000; AB 1387, Chapter 970, Eff. 1-1-2000] Amended Labor Code § 3212.1 deletes the requirement that a firefighter or peace officer affected by cancer demonstrate that the carcinogen to which he or she was exposed is reasonably linked to the disabling cancer. The new version of Labor Code § 3212.1 provides that the presumption of compensability may only be controverted by evidence that the primary site of the cancer has been established and that the carcinogen is not reasonably linked to the disabling cancer. The amendments, which apply to claims for benefits filed or pending on or after January 1, 1997, define cancer to include leukemia. [AB 539, Chapter 595, Eff, 1-1-2000]

Medical Treatment

Labor Code § 4600.4 was added to mandate that any entity, including a workers' compensation insurer or third-party administrator, which requires a treating physician to obtain either utilization review or prior authorization before diagnosing or treating a compensable injury make those services available from 9:00 a.m. to 5:30 p.m. Pacific coast time of each normal business day. Amended Labor Code § 4603.2 provides that if an employer contests or denies any portion of a medical bill for treatment provided by the employee's treating physician, the employer must notify the physician in writing within 30 working days after the bill is received. The notice must state any additional information necessary to make a decision. [AB 775, Chapter 124, Eff. 1-1-2000]

Death Benefits

Labor Code § 5406.6, entitled the Cliff Ojala Death Benefits Act, was added to ensure that the dependents of a worker whose HIV-related death occurs more than 240 weeks after the date of the initial injury, will receive death benefits as provided by the Labor Code. This Act requires that an action to collect death benefits for the death of a health care worker, public safety employee, or certain correctional peace officers from an HIV-related disease be brought within one year from the date of death, providing that (1) a report, of the injury or exposure was made to the employer or to a governmental agency authorized to administer industrial injury claims within one year of the date of the injury; (2) the worker complied with the requisite notice provisions and the claim has not been finally determined to be noncompensable; or (3) the employer provided, or was ordered to provide workers' compensation benefits for the injury prior to the date of death. The new statute also defines the term "health care worker."

Confidentiality of Medical Information

New Civil Code § 56.31 provide that the disclosure or use of medical information regarding HIV without a patient's prior authorization is permitted, unless the patient is an injured worker claiming to be infected with or exposed to the virus through an exposure incident arising out of and in the course of employment. Amended Labor Code § 3762 provides that an insurer and third-party administrators and their agents and employees are prohibited from disclosing or causing to be disclosed to an employer any medical information (as defined in Civil Code § 56.05) about an employee who has filed a workers' compensation claim, except as specified in the statute. [AB 435, Chapter 7661] For more information on AB 435 please visit