Knowledge of the Law Trumps AME Opinion
We recently had a case in our office which was quite interesting.
The defendants seemed to be up against it in this case because the primary treating physician found that the applicant did have a compensable industrial psychiatric disability and injury.
In fact, the applicant then went to the retirement board and obtained a separate report indicating that he had an industrial injury and that it was all work related.
The parties went to an Agreed Medical Examiner in this case, and the Agreed Medical Examiner agreed that the predominant cause of the applicant’s problems was his employment and he had a compensable industrial injury.
Our investigation of this case and the doctor’s findings left us a bit baffled.
We had interviewed the applicant’s supervisor and co-workers and felt that the applicant’s complaints were out of line and that the employer had done nothing wrong in this case.
Even after presenting this evidence to the Agreed Medical Examiner, he refused to change his opinion to find the injury non-compensable.
We in fact deposed all of the defense witnesses in this case to present the testimony under oath to the Agreed Medical Examiner, and at the end of the Agreed Medical Examiner’s deposition, the best he could come up with was that at least 51% of the problem was due to the “bad fit” of the employee at the employer’s setting.
Bear in mind that this gentleman had worked for this employer for about 10 to 12 years.
However, we determined that there was a possible way out of this case by reviewing the case law.
In Verga v. WCAB (2008) 159 Cal. App. 4th 174, the Court of Appeal found that Labor Code §3208.3(b)(1) required objective evidence of harassment, persecution or other such basis for an alleged psychiatric injury and that the liberal construction contemplated by Labor Code §3202 was not appropriate in this context.
Furthermore, the Court in that case said that substantial evidence supported the factual findings that the claimant’s supervisor and co-workers did not persecute nor harass him. The Board correctly concluded that the false perceptions of the working environment were not the actual events of employment and that the claimant’s subjective misperception of the co-workers’ reactions to his behavior as harassment did not entitle him to benefits.
We felt that the evidence in this case would back up our position under this case and in fact we took it to trial.
At trial, the Workers’ Compensation Appeals Board heard all of the evidence and agreed that the applicant did not have an industrial injury.
The moral of the story is that it is important to note that the medical providers do not necessarily know the law in this case and that it is important to make sure that the correct legal theory is pursued when defending a workers’ compensation matter.