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| | + | ! [[Defenses to Psychological Claims|< Previous ]] !! [[Navigating COVID-19: A Legal Guide For California Employers|Table of Contents]] !! [[When Must a Claim Form Be Provided?| Next >]] |
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| − | ==PSYCHIATRIC INJURIES==
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| − | In response to the coronavirus, the government issued an order requiring all California residents to stay home, except for those workers deemed to be essential. As a result, employers were required fundamentally change their business practices.
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| − | Some laid off workers due to the uncertainty surrounding COVID-19. Some implemented new technology to allow employees to work from home. For businesses deemed to be essential, some instructed their employees to maintain physical distance from other employees or customers. Others required their employees to work different hours due to staggered shifts.
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| − | Although such efforts are necessary to protect employees and the community at large from the spread of COVID-19, they do not insulate employers from liability for injuries sustained as a result of such work. These efforts to control the coronavirus do not change the law on legal liability for injuries.
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| − | In California, Labor Code § 3208.3(a) provides, "A psychiatric injury shall be compensable if it is a mental disorder which causes disability or need for treatment." Because of COVID-19, employees are understandably going through a lot of stress. They may be stressed because they've lost their job or are in danger of losing their job. They may be stressed by changes in their working conditions in response to COVID-19. They may also be stressed as a result of fear from the coronavirus itself.
| + | As discussed in previous sections, COVID-19 can prompt the filing of psychiatric claims in several ways. For injuries on or after Jan. 1, 2013, Labor Code § 4660.1(c) states that “the impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury shall not increase.” This statute reflects the Legislature's intent as part of Senate Bill 863 to eliminate questionable claims of disability when alleged to be caused by a disabling physical injury arising out of and in the course of employment. |
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| − | An employer is not legally liable for all of these stressors. If an employee alleges a psychiatric injury as a result of COVID-19, it will be up to the parties and doctors to parcel out the different causes of the injury, whether non-industrial or industrial, and determine whether those causes meet specified thresholds.
| + | Although there might be an issue whether psychiatric impairment flowing from COVID-19 is compensable under this statute, as discussed in this section, it's likely that it will be compensable most, if not all, of the time. Section 4660.1(c) is discussed in-depth in "Sullivan on Comp" [https://app.sullivanoncomp.com/soc/index/title/10.16 Section 10.16 Use of 2013 Permanent Disability Schedule]. |
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| − | ===ACTUAL EVENT OF EMPLOYMENT=== | + | ==COVID-19 as a Physical Injury== |
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| − | Labor Code § 3208.3(b)(1) states, "In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury." The phrase "predominant as to all causes" means more than 50 percent.<ref>''Dep't of Corr. v. Workers' Comp. Appeals Bd. (Garcia)'' (1999) 76 Cal.App.4th 810, 816.</ref> On the other hand, the phrase “actual events of employment” does not provide clear guidance because it is susceptible of many meanings.<ref>''Verga v. Workers' Comp. Appeals Bd.'' (2008) 159 Cal.App.4th 174, 185.</ref> | + | Labor Code § 4660.1(c) bars impairment –– permanent disability –– for a psychiatric, sexual or sleep disorder "arising out of a compensable physical injury." It applies to psychiatric injury only as a compensable consequence of a physical injury. It does not apply to psychiatric injuries directly caused by the employment.<ref>''Wilson v. State of CA Cal Fire'' (2019) 84 Cal. Comp. Cases 393, 403.</ref> |
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| − | An employee's industrial physical injury constitutes an actual event of employment for the purposes of § 3208.3(b)(1).<ref>''Lockheed Martin Corp. v. Workers' Comp. Appeals Bd.'' (2002) 96 Cal.App.4th 1237, 1249.</ref> As discussed below, although there may be issues as to whether COVID-19 is a "physical injury" for the purposes of psychiatric impairment for the purposes of § 4660.1(c), there is little doubt that an employee who contracts COVID-19 would be allowed to obtain treatment for any psychiatric disorder predominantly caused by it. The issue becomes more difficult if an employee's psychiatric condition is caused by stress surrounding the coronavirus, rather than the coronavirus itself.
| + | Psychiatric injuries caused by "actual events of employment" (other than physical injuries) pursuant to LC 3208.3(b)(1) would not be barred. So, psychiatric injuries caused by changes in work duties or working conditions due to coronavirus still would be compensable. And post-traumatic stress disorder suffered by hospital workers or other emergency personnel handling COVID-19 patients would not be barred because it does not flow from a COVID-19 diagnosis. |
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| − | The courts have held that an employee's subjective misperception that the employment was stressful cannot support an award, because there must be an ''actual'' event of employment, and thus the employee must establish objective evidence of harassment, persecution, or other such basis for alleged psychiatric injury.<ref>''Verga v. Workers' Comp. Appeals Bd.'' (2008) 159 Cal.App.4th 174, 186.</ref>
| + | LC 4660.1(c) potentially applies to psychiatric claims only as a consequence of a COVID-19 diagnosis, and it's highly questionable if COVID-19 would constitute a "physical injury" for the purposes of § 4660.1(c). Employers might argue that because COVID-19 causes physical symptoms, it could be considered a "physical injury." The Workers' Compensation Appeals Board has held that industrially related obesity qualifies as physical injury under § 4660.1(c) because it's a physical manifestation, even if it did not arise out of a physical trauma.<ref>''Castillo v. City of Los Angeles'' (2017) 2017 Cal. Wrk. Comp. P.D. LEXIS 58.</ref> So, if the court accepts that physical manifestations are enough to satisfy the physical injury requirement, COVID-19 could be considered a physical injury. |
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| − | In ''Pacific Gas & Electric Co. v. Workers' Comp. Appeals Bd.'',<ref>(2004) 114 Cal.App.4th 1174.</ref> the Court of Appeal explained that pursuant to § 3208.3(b)(1), there must be: (1) an "event"; i.e., it must be “something that takes place” in the employment relationship; and (2) the event must be “of employment”; i.e., it must arise out of an employee's working relationship with his or her employer.<ref>''Pacific Gas & Electric Co. v. Workers' Comp. Appeals Bd.'' (2004) 114 Cal.App.4th 1174, 1181.</ref> The Court concluded that "broad societal events or trends do not satisfy this requirement of section 3208.3 subdivision (b)(1) because they cannot reasonably be said to be events which arise out of the employment relationship."<ref>''Pacific Gas & Electric Co. v. Workers' Comp. Appeals Bd.'' (2004) 114 Cal.App.4th 1174, 1181.</ref>
| + | The Labor Code, however, differentiates between injuries and diseases. LC 3208 specifies that an injury includes "any injury ''or'' disease" (emphasis added). Likewise, § 5412 and § 5500.5 use the terms "occupational diseases ''or'' cumulative injuries" (emphasis added). LC 3208.1 defines a cumulative injury as resulting from "repetitive mentally or physically traumatic activities." The courts have distinguished between occupational diseases that require "exposure" and cumulative injuries that require "trauma."<ref>See ''Fruehauf Corp. v. Workers' Comp. Appeals Bd.'' (1968) 68 Cal. 2d 569, 576 (Supreme Court defining cumulative injuries based on "traumas which are minor" and occupational diseases based on "exposure to harmful substances").</ref> |
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| − | In that case, the court determined generalized anxiety over one's future in a company struggling to survive during difficult economic times and fear of job loss due to management strategies to achieve increased profitabilty, such as “outsourcing” of jobs to an overseas workforce were not actual events of employment. It determined corporate downsizing, without more, cannot reasonably support an award of benefits, because "Allowing employees to recover benefits for psychiatric injuries caused by this type of stress would subject employers to virtually unlimited liability."<ref>''Pacific Gas & Electric Co. v. Workers' Comp. Appeals Bd.'' (2004) 114 Cal.App.4th 1174, 1182.</ref> The court determined that an employee's stock losses could nto support an award because the investment loss was no different from that experienced by the general investing public. It also determine an employee's concern over the future of his company and his retirement funds did not satisfy § 3208.3(b)(1).<ref>''Pacific Gas & Electric Co. v. Workers' Comp. Appeals Bd.'' (2004) 114 Cal.App.4th 1174, 1182.</ref>
| + | So, because the law recognizes a distinction between injuries and diseases, injured workers might argue that § 4660.1(c) does not apply to psychiatric injuries flowing from COVID-19, because COVID-19 is a disease not a physical injury. |
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| − | However, the court concluded an employee's reassignment to a new position due to the employer's downsizing which required him to interact with irate customers could support an award. The court noted the evidence established the employee's confrontations with angry, threatening or deceitful customers packed in large numbers in a confining small office caused him specific and identifiable work-related stress. It found these stresses were a direct consequence of the new work assignment, an event of his particular employment, and a compensable cause of his psychic injury.<ref>''Pacific Gas & Electric Co. v. Workers' Comp. Appeals Bd.'' (2004) 114 Cal.App.4th 1174, 1183.</ref>
| + | ==Limitation Applies Only to Permanent Impairment== |
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| − | ====Application of Actual Event of Employment Requirement to COVID-19====
| + | Even if COVID-19 is considered a physical injury, LC 4660.1(c) precludes only permanent impairment. It expressly states that it does not limit the ability of an injured employee to obtain treatment for a psychiatric disorder that is a consequence of a physical injury. It also does not limit an employee's ability to receive temporary disability benefits.<ref>''Wilson v. State of CA Cal Fire'' (2019) 84 Cal. Comp. Cases 393, 403.</ref> |
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| − | Broad societal events or broad concerns over a company's struggle during difficult economic times do not qualify as “actual events of employment” pursuant to § 3208.3(b)(1). Accordingly, an employee's general concerns about his future and the future of the company due to the difficult economic times caused by coronavirus to not satisfy § 3208.3(b)(1). Likewise, corporate downsizing and the loss of value of an employee's company stock due to the coronavirus could not support an award.
| + | ==Exceptions to the Bar on Permanent Impairment== |
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| − | However, changes in the workplace in response to the coronavirus which affect an employee could qualify. For example, actual events of employment could include:
| + | Even if COVID-19 is considered a physical injury under Labor Code § 4660.1(c)(1), LC 4660.1 (c)(2) allows an employee to receive an increased impairment rating for psychiatric injury flowing from a physical injury if the psychiatric injury resulted from either: |
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| | <ol> | | <ol> |
| − | <li>A change of job assignment.<ref>See ''Garcia v. County of Riverside'' (2019) 2019 Cal. Wrk. Comp. P.D. LEXIS 447.</ref></li> | + | <li>being a victim of a violent act or being directly exposed to a significant violent act; or</li> |
| − | <li>Changes in work duties or working conditions.<ref>See ''Joe v. County of Santa Clara-Probation Department'' (2015) 2015 Cal. Wrk. Comp. P.D. LEXIS 352; ''Vayser v. Tarzana Treatment Centers'' (2016) 2016 Cal. Wrk. Comp. P.D. LEXIS 508; ''Humphrey v. City of San Luis Obispo'' (2019) 2019 Cal. Wrk. Comp. P.D. LEXIS 467.</ref></li>
| + | <li>a catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn or severe head injury.</li> |
| − | <li>Stress related to the implementation of a new computer system.<ref>See ''Alde v. Children's Hospital and Health of San Diego'' (2014) 2014 Cal. Wrk. Comp. P.D. LEXIS 87.</ref></li> | |
| | </ol> | | </ol> |
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| − | Accordingly, while many employers were required to fundamentally change their business practices in order to comply with the government's stay at home and social distancing requirements, many of those changes could be considered actual events of employment. To the extent employees became anxious and stresses as a result of working form home, adapting to new technology, or having to change their job duties as a result of the coronavirus, they could potentially bring psychiatric claims.
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| − | This is not to say that employers shouldn't make changes in response to COVID-19. They need to protect their employees, and ultimately themselves, from the coronavirus. However, employer must recognize that the changes they make could support a claim for a psychiatric injury.
| + | In ''Wilson v. State of CA Cal Fire,''<ref>(2019) 84 Cal. Comp. Cases 393.</ref> the appeals board ''en banc'' held that the first exception focuses on the mechanism of the injury, and the second on the nature of the injury. In that case, the appeals board defined a "violent act" per § 4660.1(c)(2)(A) as "an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening." The board held that a firefighter who fought a wildfire for several hours, during which time he had prolonged exposure to fumes and smoke causing an adverse physical reaction in multiple body parts, did not sustain an injury that resulted from a violent act.<ref>''Wilson v. State of CA Cal Fire'' (2019) 84 Cal. Comp. Cases 393, 405-406.</ref> |
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| − | ====Should Employers Be Liable for Actions Mandated by the Government?====
| + | Because COVID-19 is passed insidiously from person to person, it will be difficult for employees to establish the first exception. Short of contracting COVID-19 after being attacked by someone who has the disease, it's unlikely that psychiatric injury resulting from COVID-19 exposure would qualify as a violent act. |
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| − | Employers may argue that they should not be held accountable for changes mandated by the government. In effect, employers are potentially being punished for their efforts to keep employees safe. However, so far, the appeals board has held that actual events of employment may include employment actions even if they are not attributable to the employer.
| + | But COVID-19 might be a "catastrophic injury." Although most people have minor or moderate symptoms and fully recover from COVID-19, some people with the disease might have permanent lung damage. In ''Wilson,'' the appeals board concluded that the firefighter's injury was catastrophic when the evidence established that his injury was serious and life-threatening, he was placed in a medically induced coma, he suffered both renal and respiratory failure and his physical injury resulted in permanent disability that rated at 66%.<ref>''Wilson v. State of CA Cal Fire'' (2019) 84 Cal. Comp. Cases 393, 415-416.</ref> |
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| − | For example, in one case, an applicant-teacher was investigated by a grand jury for misappropriating funds raised by students. No charges were brought, and the applicant alleged she sustained a psychiatric injury. The appeals board concluded the grand jury investigation was an "actual event of employment" because it dealt with the accusations of wrongdoing in the school fundraising activities.<ref>''Merced City School District v. WCAB (Delgado)'' (2008) 73 Cal.Comp.Cases 1115 (writ denied).</ref>
| + | So it's foreseeable that even if COVID-19 is considered a physical injury under § 4660.1(c)(1), some employees will be able to receive impairment for a psychiatric injury flowing from it, if their illness results in significant hospitalization and permanent impairment. It would depend on the facts for each case. |
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| − | Similarly, in another case, an applicant was tried and acquitted of workers' compensation fraud. She filed another claim alleging injury to her psyche after the acquittal. The board concluded although her arrest and subsequent acquittal did not need to be attributable to management in order to be considered actual events of employment pursuant to § 3208.3(b)(1).<ref>''Mnyandu v. Los Angeles Unified School District'' (2013) 2013 Cal. Wrk. Comp. P.D. LEXIS 502.</ref>
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| − | In both these cases, actions at issue were not attributable to the employer but were directly attributable to the government. However, the appeals board still concluded they satisfied § 3208.3(b)(1). Therefore, it is likely that the appeals board will conclude an employer's action taken in response to a government mandates or recommendations will qualify.
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| − | ===COULD COVID-19 BE A VIOLENT ACT?===
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| − | Although § 3208.3(b)(1) requires actual events of employment to be the predominant cause in order for a psychiatric injury to be compensable, subdivision (b)(2) slightly reduces this threshold to a "substantial cause" if an employee's "injuries resulted from being a victim of a violent act or from direct exposure to a significant violent act." A "substantial cause" is defined as being "at least 35-40 percent of the causation from all sources combined." (Lab. Code, § 3208.3(b)(3).)
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| − | Doctors, nurses or other frontline workers who are required to treat COVID-19 patients could potentially argue that they were directly exposed to a violent act. Many news reports and politicians have used war as a metaphor for the COVID-19 crisis. Healthcare workers are being described as soldiers fighting against the coronavirus, many treating more patients than they can handle and many without the personal protective equipment they need.
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| − | However, it is unlikely their exposure to COVID-19 qualifies as direct exposure to a significant violent act. In ''Wilson v. State of CA Cal Fire'',<ref>(2019) 84 Cal. Comp. Cases 393.</ref> the appeals board en banc defined a "violent act" in the context of § 4660.1(c)(2)(A) as "an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening." The appeals board held that a firefighter who fought a wildfire for several hours, during which time he had prolonged exposure to fumes and smoke resulting in an adverse physical reaction in multiple body parts, did not sustain an injury that resulted from a violent act.<ref>''Wilson v. State of CA Cal Fire'' (2019) 84 Cal. Comp. Cases 393, 405-406.</ref>
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| − | Given the threat in ''Wilson'' posed an more immediate threat, it is unlikely that a healthcare worker's prolonged exposure to COVID-19 patients would qualify as a violent act. Nevertheless, § 3208.3(b)(2) only slightly reduces the threshold for a psychiatric injury from greater than 50 percent to 35-40 percent. It is easy to imagine frontline healthcare workers developing post-traumatic stress disorder or other psychiatric conditions as a result of treating COVID-19 patient. The percentage of causation for a psychiatric injury is determined by medical doctors, it is difficult to imagine a situation where a doctor would find such workers did not meet the required threshold.
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| − | ===GOOD FAITH PERSONNEL ACTION===
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| − | As discussed above, many actions taken by an employer in response to the coronavirus will be considered "actual events of employment" for the purposes of § 3208.3(b)(1). However, not every action taken by an employer will result in liability for a psychiatric injury.
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| − | Section 3208.3(h) states, "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." It establishes what is commonly called the good faith personnel action defense.
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| − | The Court of Appeal has explained, "[T]he Legislature's 'good faith personnel action' exemption is meant to furnish an employer a degree of freedom in making its regular and routine personnel decisions (such as discipline, work evaluation, transfer, demotion, layoff, or termination). If a regular and routine personnel decision is made and carried out with subjective good faith and the employer's conduct meets the objective reasonableness standard, section 3208.3's exemption applies."<ref>''City of Oakland v. Workers' Comp. Appeals Bd.'' (2002) 99 Cal.App.4th 261, 267.</ref>
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| − | ====Analysis for Good Faith Personnel Action====
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| − | In ''Rolda v. Pitney Bowes, Inc.,''<ref>(2001) 66 Cal.Comp.Cases 241.</ref> the appeals board en banc established the required analysis when the good faith personnel action defense pursuant to § 3208.3(h) is asserted:
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| − | <li>The WCJ must determine whether the alleged psychiatric injury involves actual events of employment, and if so, whether competent medical evidence establishes the required percentage of industrial causation.</li>
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| − | <li>If these first two conditions are met, the WCJ must then decide whether any of the actual employment events were personnel actions.</li>
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| − | <li>If so, the WCJ must next determine whether the personnel action or actions were lawful, nondiscriminatory and made in good faith.</li>
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| − | <li>If all these criteria are met, competent medical evidence is necessary as to causation; that is, the personnel action or actions must be a substantial cause, accounting for at least 35 to 40 percent, of the psychiatric injury.</li>
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| − | </ol>
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| − | This analysis has been approved by the Court of Appeal.<ref>''San Francisco Unified School Dist. v. Workers' Comp. Appeals Bd.'' (2010) 190 Cal.App.4th 1, 9.</ref> Thus, while judges must determine legal issues regarding whether an employee's psychiatric injury was caused by actual events of employment, whether the events were personnel actions, and whether the personnel actions were lawful, nondiscriminatory and in good faith, causation of the psychiatric injury is a medical issue and the doctor must break down the causes, both industrial and nonindustrial, into percentages. Ultimately, the employer has the burden of proving an employee's psychiatric injury was caused by personnel actions which were lawful, nondiscriminatory and in good faith.
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| − | ====Personnel Action Defined====
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| − | A personnel action has been defined by the courts as "conduct either by or attributable to management including such things as done by one who has the authority to review, criticize, demote, or discipline an employee."<ref>''Larch v. Contra Costa County'' (1998) 63 Cal.Comp.Cases 831, 835; ''Stockman v. Department of Corrections'' (1998) 63 Cal.Comp.Cases 1042, 1045; ''County of Sacramento v. Workers' Comp. Appeals Bd. (Brooks)'' (2013) 215 Cal.App.4th 785, 790.</ref> Therefore, in order to satisfy § 3208.3(h), the action must be undertaken by a supervisor or someone else in a position of authority. However, although a personnel action must be the action of a person in a position of authority, not every action by those people qualify as personnel actions.
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| − | The courts have explained, "An employer's disciplinary actions short of termination may be considered personnel actions even if they are harsh and if the actions were not so clearly out of proportion to the employee's deficiencies so that no reasonable manager could have imposed such discipline."<ref>''Larch v. Contra Costa County'' (1998) 63 Cal.Comp.Cases 831, 833; ''Stockman v. Department of Corrections'' (1998) 63 Cal.Comp.Cases 1042, 1045; ''County of Sacramento v. Workers' Comp. Appeals Bd. (Brooks)'' (2013) 215 Cal.App.4th 785, 790.</ref> "It is unnecessary, moreover, that a personnel action have a direct or immediate effect on the employment status. Criticism or action authorized by management may be the initial step or a preliminary form of discipline intended to correct unacceptable, inappropriate conduct of an employee. The initial action may serve as the basis for subsequent or progressive discipline, and ultimately termination of the employment, if the inappropriate conduct is not corrected.”<ref>''Larch v. Contra Costa County'' (1998) 63 Cal.Comp.Cases 831, 834-835; ''County of Sacramento v. Workers' Comp. Appeals Bd. (Brooks)'' (2013) 215 Cal.App.4th 785, 790.</ref>
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| − | Although the courts have explained that what constitutes a personnel action depends on the subject matter and factual setting for each case, they have provided examples personnel actions. Specifically, "Personnel actions may include but are not necessarily limited to transfers, demotions, layoffs, performance evaluations, and disciplinary actions such as warnings, suspensions, and terminations of employment."<ref>''Larch v. Contra Costa County'' (1998) 63 Cal.Comp.Cases 831, 835; ''Stockman v. Department of Corrections'' (1998) 63 Cal.Comp.Cases 1042, 1045.</ref>
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| − | On the other hand, the appeals board has held that changes in an employee's working conditions do not to constitute personnel actions. Therefore, it has held that increased workloads <ref>See ''Joe v. County of Santa Clara-Probation Department'' (2015) 2015 Cal. Wrk. Comp. P.D. LEXIS 352; ''Humphrey v. City of San Luis Obispo'' (2019) 2019 Cal. Wrk. Comp. P.D. LEXIS 467.</ref> or changes in job duties<ref>See ''Vayser v. Tarzana Treatment Centers'' (2016) 2016 Cal. Wrk. Comp. P.D. LEXIS 508; ''Garcia v. County of Riverside'' (2019) 2019 Cal. Wrk. Comp. P.D. LEXIS 447.</ref> are not personnel actions. Similarly, the implementation of of a new computer system was not consider a personnel action, because it merely changed how the employees were required to complete their duties.<ref>''Alde v. Children's Hospital and Health of San Diego'' (2014) 2014 Cal. Wrk. Comp. P.D. LEXIS 87.</ref> Although these actions did not qualify as "personnel actions" pursuant to § 3208.3(h), and thus could not be used to defend a claim, they were considered "actual events of employment" for the purposes of § 3208.3(b)(1), and thus could be used to support a claim.
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| − | Accordingly, if an employee
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| | + | ==See Also== |
| | + | * [[Psychiatric Injuries Caused by COVID-19]] |
| | + | * [[Remote Medical Treatment Examinations and Medical-Legal Appointments]] |
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| | + | ==References== |
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| | + | <references/> |
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| | + | ---- |
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| − | | + | <center> |
| − | | + | {| class="wikitable" |
| − | <references/> | + | ! [[Defenses to Psychological Claims|< Defenses to Psychological Claims]] !! [[Navigating COVID-19: A Legal Guide For California Employers|Table of Contents]] !! [[When Must a Claim Form Be Provided?| When Must a Claim Form Be Provided? >]] |
| − | | + | |- |
| − | [[Category:Pre-Publication]] | + | |} |
| | + | </center> |
As discussed in previous sections, COVID-19 can prompt the filing of psychiatric claims in several ways. For injuries on or after Jan. 1, 2013, Labor Code § 4660.1(c) states that “the impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury shall not increase.” This statute reflects the Legislature's intent as part of Senate Bill 863 to eliminate questionable claims of disability when alleged to be caused by a disabling physical injury arising out of and in the course of employment.
Although there might be an issue whether psychiatric impairment flowing from COVID-19 is compensable under this statute, as discussed in this section, it's likely that it will be compensable most, if not all, of the time. Section 4660.1(c) is discussed in-depth in "Sullivan on Comp" Section 10.16 Use of 2013 Permanent Disability Schedule.
COVID-19 as a Physical Injury
Labor Code § 4660.1(c) bars impairment –– permanent disability –– for a psychiatric, sexual or sleep disorder "arising out of a compensable physical injury." It applies to psychiatric injury only as a compensable consequence of a physical injury. It does not apply to psychiatric injuries directly caused by the employment.[1]
Psychiatric injuries caused by "actual events of employment" (other than physical injuries) pursuant to LC 3208.3(b)(1) would not be barred. So, psychiatric injuries caused by changes in work duties or working conditions due to coronavirus still would be compensable. And post-traumatic stress disorder suffered by hospital workers or other emergency personnel handling COVID-19 patients would not be barred because it does not flow from a COVID-19 diagnosis.
LC 4660.1(c) potentially applies to psychiatric claims only as a consequence of a COVID-19 diagnosis, and it's highly questionable if COVID-19 would constitute a "physical injury" for the purposes of § 4660.1(c). Employers might argue that because COVID-19 causes physical symptoms, it could be considered a "physical injury." The Workers' Compensation Appeals Board has held that industrially related obesity qualifies as physical injury under § 4660.1(c) because it's a physical manifestation, even if it did not arise out of a physical trauma.[2] So, if the court accepts that physical manifestations are enough to satisfy the physical injury requirement, COVID-19 could be considered a physical injury.
The Labor Code, however, differentiates between injuries and diseases. LC 3208 specifies that an injury includes "any injury or disease" (emphasis added). Likewise, § 5412 and § 5500.5 use the terms "occupational diseases or cumulative injuries" (emphasis added). LC 3208.1 defines a cumulative injury as resulting from "repetitive mentally or physically traumatic activities." The courts have distinguished between occupational diseases that require "exposure" and cumulative injuries that require "trauma."[3]
So, because the law recognizes a distinction between injuries and diseases, injured workers might argue that § 4660.1(c) does not apply to psychiatric injuries flowing from COVID-19, because COVID-19 is a disease not a physical injury.
Limitation Applies Only to Permanent Impairment
Even if COVID-19 is considered a physical injury, LC 4660.1(c) precludes only permanent impairment. It expressly states that it does not limit the ability of an injured employee to obtain treatment for a psychiatric disorder that is a consequence of a physical injury. It also does not limit an employee's ability to receive temporary disability benefits.[4]
Exceptions to the Bar on Permanent Impairment
Even if COVID-19 is considered a physical injury under Labor Code § 4660.1(c)(1), LC 4660.1 (c)(2) allows an employee to receive an increased impairment rating for psychiatric injury flowing from a physical injury if the psychiatric injury resulted from either:
- being a victim of a violent act or being directly exposed to a significant violent act; or
- a catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn or severe head injury.
In Wilson v. State of CA Cal Fire,[5] the appeals board en banc held that the first exception focuses on the mechanism of the injury, and the second on the nature of the injury. In that case, the appeals board defined a "violent act" per § 4660.1(c)(2)(A) as "an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening." The board held that a firefighter who fought a wildfire for several hours, during which time he had prolonged exposure to fumes and smoke causing an adverse physical reaction in multiple body parts, did not sustain an injury that resulted from a violent act.[6]
Because COVID-19 is passed insidiously from person to person, it will be difficult for employees to establish the first exception. Short of contracting COVID-19 after being attacked by someone who has the disease, it's unlikely that psychiatric injury resulting from COVID-19 exposure would qualify as a violent act.
But COVID-19 might be a "catastrophic injury." Although most people have minor or moderate symptoms and fully recover from COVID-19, some people with the disease might have permanent lung damage. In Wilson, the appeals board concluded that the firefighter's injury was catastrophic when the evidence established that his injury was serious and life-threatening, he was placed in a medically induced coma, he suffered both renal and respiratory failure and his physical injury resulted in permanent disability that rated at 66%.[7]
So it's foreseeable that even if COVID-19 is considered a physical injury under § 4660.1(c)(1), some employees will be able to receive impairment for a psychiatric injury flowing from it, if their illness results in significant hospitalization and permanent impairment. It would depend on the facts for each case.
See Also
References
- ↑ Wilson v. State of CA Cal Fire (2019) 84 Cal. Comp. Cases 393, 403.
- ↑ Castillo v. City of Los Angeles (2017) 2017 Cal. Wrk. Comp. P.D. LEXIS 58.
- ↑ See Fruehauf Corp. v. Workers' Comp. Appeals Bd. (1968) 68 Cal. 2d 569, 576 (Supreme Court defining cumulative injuries based on "traumas which are minor" and occupational diseases based on "exposure to harmful substances").
- ↑ Wilson v. State of CA Cal Fire (2019) 84 Cal. Comp. Cases 393, 403.
- ↑ (2019) 84 Cal. Comp. Cases 393.
- ↑ Wilson v. State of CA Cal Fire (2019) 84 Cal. Comp. Cases 393, 405-406.
- ↑ Wilson v. State of CA Cal Fire (2019) 84 Cal. Comp. Cases 393, 415-416.
