Grinberg: Cut up WCAB Addresses Good-Religion Personnel Motion Protection| Employees Compensation Information

By Gregory Grinberg

Tuesday, December 22, 2020 | 53 | 0 | min read

Similar to the Soviet Santa Claus, who brings ice-cold children’s lumps to great Soviet cheers, I bring you a decision of the panel, with which a “take nothing” of a psyche claim is reversed.

Gregory Grinberg

But this is not just any case. This one is interesting to say the least. It is the opinion of the divided body in Munoz versus Department of Corrections.

The applicant, a case record analyst at a correction facility, claimed to have made a psychiatric claim based on her employment. The panel’s qualified medical reviewer believed that 35% of the psychiatric condition was caused by an email to the applicant that a meeting would be held (in all likelihood to pursue a referral / corrective advice), and to 35% attacked because they had heard from her husband’s boyfriend. Another 10% received a reprimand.

The employer asserted that the psychiatric condition was excluded by the non-discriminatory, bona fide personal defense under Section 3208.3 of the Labor Code.

In the trial, the judge agreed, only to reverse the majority of the Workers’ Compensation Appeals Board’s panel on appeal. So what happened

The panel considered that the analysis under the en banc law established by Rolda v Pitney Bowes Inc. is as follows:

• Is the alleged psychiatric injury actual employment incident?
• Does competent medical evidence provide the required percentage of industrial causation?
• Were the actual occurrences of actions taken by the staff?
• Are these personnel measures lawful, non-discriminatory and carried out in good faith?

The parties did not deny that the original 10% reprimand was a non-discriminatory, good faith recruitment measure, but what about the email that caused such fear? Does the email say there would be a meeting where a reprimand would be treated as a non-discriminatory, bona fide personnel action?

The email informing the complainant and her staff of an upcoming meeting did not contain any details on the issues raised at the meeting, but the complainant suspected that these would be further references. The email made her angry and scared. Despite all of this, the employer’s witnesses testified that the meeting was a general meeting, at which the procedures would be reviewed and no reprimands or further advice would be given.

Although the complainant’s fears regarding the content of the meeting were unfounded, they were nonetheless harmful to her psyche and contributed to the accident at work.

The WCAB majority argued that a routine meeting is not a “personnel measure” within the meaning of Rolda and the Labor Code. Therefore, responding to a meeting email or the meeting itself, as in this case, may not be the basis of the meeting’s defense.

But, like I learned in law school so many, many years ago, if you want to know what REALLY happened, read the dissent.

The vote against cited County of Sacramento v WCAB (Brooks) and Bray v WCAB for suggesting that the applicant’s subjective response to a bona fide, non-discriminatory recruitment measure was not the responsibility of the employer. Indeed, the general observation in these cases is that the response to the act is a symptom of the injury, not the injury itself.

Accordingly, the complainant’s stress, panic, fear and concern after receiving the email regarding a meeting were the symptoms of the psychiatric injury, with the injury itself not being the email but the bona fide, non-discriminatory personnel action taken against her for misconduct rebuke.

What do you think? What is the difference between an applicant’s subjective response to a bona fide, non-discriminatory personnel action and the actual act? Do subjective reactions to employment events qualify as “actual employment events”?

Gregory Grinberg is the managing partner of Gale, Sutow & Associates’ SF Bay South office and a certified employee compensation law specialist. This post was reprinted with permission from Grinberg’s WCDefenseCA blog.