Rolda Interpreted to Require Causation Percentage Assignments for Each Industrial Incident
In Rice v. Automobile Club of Southern Calif./Old Republic Ins. Co., a Board panel finds that a proper analysis under Rolda v. Pitney Bowes, Inc. (2001) 66 Cal.Comp.Cases 241 (Rolda) should define the percentage of causation for each claimed event of employment.
Applicant asserted that while employed as an associate buyer for Automobile Club of Southern California, he suffered a cumulative trauma from May 10, 2017 to May 10, 2018 causing an industrial injury to the nervous system, stress, psyche, sleep disorder due to an alleged hostile work environment. Defendant denied the claim.
The QME in psychology specialty issued an initial report which established a diagnosis of Major Depressive Disorder, with industrial prominence. The QME was deposed. At time of deposition the QME agreed to produce a supplemental report that would provide a Rolda analysis.
The QME’s supplemental report reflected findings that the “predominant cause (over 50%) of [the applicant’s] Major Depressive Disorder was the cumulative trauma work incident dated May 10, 2017 through May 10, 2018.” The report did not address specific factors of causation, nor did it assign percentages to such factors. The QME also found that personnel actions were a substantial cause of the applicant’s psychiatric injury.
Following an AOE/COE trial, the WCJ found that a variety of actions constituted personnel action, including the transfer of various additional job duties to applicant, a performance review of August 30, 2017, a September 15, 2017 work requirements meeting, and the transfer of job duties away among other events. The WCJ concluded that defendant had met the burden of proving the injury was barred under LC § 3208.3(h) by establishing that the injury was substantially caused by lawful, nondiscriminatory, good-faith personnel action.
By way of his Petition for Reconsideration the applicant contended that the WCJ’s Findings and Order failed to distinguish between the stressful working conditions and personnel actions presented at trial.
Under LC § 3208.3 A psychiatric injury shall be compensable if it is a mental disorder which causes disability or need for medical treatment, and it is diagnosed pursuant to procedures promulgated per the labor code. To establish a compensable psychiatric injury, an employee must demonstrate by a preponderance of the evidence that actual events of employment were a predominant (51%) as to all causes combined of the psychiatric injury.
If a WCJ determines that threshold for psychiatric injury had not been met, a full Rolda analysis is not necessary within a WCJ’s decision. Conversely, once a psychiatric injury is established a WCJ must determine whether section 3208.3(h) bars the claim once the affirmative defense is raised. This calls for a determination on whether: (1) of the actual employment events were personnel actions that were lawful, nondiscriminatory and in good-faith, a factual/legal determination; and (2) if so, whether the lawful, nondiscriminatory, good-faith personnel actions were a “substantial cause” (at least 35 to 40 percent) of the psychiatric injury, a determination which requires medical evidence.
The Board panel held that the QME’s reporting did not equate to the substantial medical evidence required under Rolda because it failed to identify each individual event of employment, and to assess the corresponding percentages of causation for any alleged or apparent personnel action.
The QME on this case addressed all the factors of causation in the aggregate. I suspect the QME analysis the facts in this fashion given the nature of the injury (a cumulative trauma) alleged. By this decision, the Board panel instructs that absent an accounting of the specific percentages of causation attributed to each actual event of employment, the analysis required under Rolda is incomplete.
Based on this Panel decision, if good-faith personnel action is being asserted, take note that the medical-legal record must be developed so that it contains an evaluator’s opinion categorizing each good-faith personnel action(s) on a spectrum (percentage wise) from most impactful to the applicant’s psychological condition to the least.