Kessler v. E & J Gallo Winery (BPD) (46 CWCR 61):
Applicant suffered a specific back injury in July 7, 2011.
The applicant entered into Stipulations with Request for Award on August 9, 2013 for the specific back injury, which also mentioned the psyche injury. However, all the disability was based on the report of the Agreed Medical Evaluator in orthopedic medicine.
The applicant filed a Petition to Reopen in February 2015, claiming a worsening of his condition.
One year later the applicant filed a cumulative injury claim against the same employer through May 6, 2014 alleging injury to the back and psych.
The applicant was evaluated by a psychiatric Agreed Medical Evaluator who opined that the predominant cause met the 51% threshold for psychiatric injury in this case. She went on to opine that 90% of the residual disability flows from applicant’s injury and that although the orthopedic Agreed Medical Evaluator found some residual apportionment to nonindustrial, did not apply to the psychiatric permanent disability.
The Agreed Medical Evaluator stated that of the 90% industrial permanent disability, one third derived from an apparently inactive 1989 specific injury one third from the July 7, 2011 specific injury and one third of the cumulative trauma.
The cases were consolidated for trial and the parties stipulated to the back injury in both claims but disputed injury to the psyche.
The Worker’s Compensation Judge found new and further disability in the specific injury claim and injury to the psyche in both cases. She apparently concluded that the subject’s psyche injury had not been settled by the August 2013 stipulation.
Defendant objected, claiming the psychiatric evaluator did not establish that industrial factors were predominant cause of either of the psychiatric injuries claimed.
The WCJ rescinded the original award, advised that an amended award would issue.
The amended award may no material change from the prior award other than a statement in the opinion on decision the judge found good cause to grant the Petition to Reopen.
Defendant filed a Petition for Reconsideration.
The Appeals Board agreed with the trial judge’s assessment.
The WCAB reasoned that Labor Code §3208.3 (b) (1) standard of compensability required that actual events of employment needed to be predominant as to all causes of the injury.
The panel noted that causation of permanent disability is distinct from causation of injury citing the significant panel decision in Reyes (70 CCC 223).
The panel further stated that the analysis of these issues are different in the medical evidence for any percentage conclusions might be different.
The WCAB then quoted the Court of Appeal case of Turgreen Landcare v. WCAB (Gomez) (75 CCC 385), which considered three events as predominant to all causes combined of applicant’s injury to the psyche. One was the emotional reaction to a November 29, 2005 incident where a coworker was killed, the second related to his reaction to events taking place after the killing, and the third was his reaction to a back injury in mid-December, few weeks after the initial incident. Each of these events combined, played an active, significant and predominant role of greater than 50% as to all causes of applicant’s injuries.
The panel concluded that here the Agreed Medical Evaluator opined that 90% of applicant psychiatric disability was industrially caused which met the predominant cause standard of §3208.3. The equal apportionment she had made among the three events related only to permanent disability, and the issue of causation of injury and apportionment of disability are distinct.
The WCAB denied defendant’s Petition for Reconsideration.
Rodriguez v. State of California (BPD) (56 CWCR 56):
On April 20, 2016, applicant, employed as a groundskeeper/janitor suffered, food poisoning when he ate a piece of marijuana-laced cheesecake given to him by a coworker. Applicant was unaware that the cheesecake contained marijuana, and both he and the coworker were hospitalized as a result of the poisoning. Applicant learned he had ingested marijuana while being treated at the hospital.
The applicant was evaluated by Howard Greils M.D. as panel Qualified Medical Evaluator in psychiatry.
The Qualified Medical Evaluator concluded that causation of applicant’s psychiatric injury was predominantly caused due to applicant’s negative reaction to unknowingly eating cheesecake laced with marijuana.
Later in the same report, the physician modified his earlier conclusion on causation and instead indicated that he was unable to determine whether the psychiatric injury was industrial or nonindustrial, leaving such a finding to the trier of fact.
The physician then opined that 50% of the injury was attributed to applicant’s been drugged at work without his knowledge, 25% to the alleged subsequent employer retaliation against them, causing a hostile workplace, 25% to an unsafe workplace environment resulting from his employers allegedly not having visited consequences on the coworker who gave the cheesecake.
The PQME indicated the trier fact would need to determine which of those factors are actual events of employment, and, if so, which are personnel action and finally, which would be considered lawful, discriminatory, and in good faith.
The WCJ found the applicant sustained an injury to his psyche.
Defendants filed a petition for reconsideration.
The WCAB denied reconsideration and agreed with the WCJ.
The WCJ found that the applicant had proved that he had sustained and industrial psychiatric injury.
The panel noted the definition of specific injury provided by Labor Code §3208.1 (a) as an incident which causes disability or need for medical treatment.
They then observed that the physician identified only one factor that occurred prior to applicant’s becoming temporarily totally disabled, the unknowingly ingestion of marijuana laced cheesecake.
The other alleged factors he identified, retaliation an unsafe workplace environment occurred after temporary total disability began.
For worker’s compensation purposes, once the psychiatric condition caused the need for medical treatment or cause disability an injury had occurred.
The only factors occurring prior to the need for medical treatment and the commencement of temporary disability could cause the injury.
The panel concluded that be given marijuana laced cheesecake cannot constitute a good-faith personnel action, remarking, whether the events that took place after the industrial injury were a separate injury (whether compensable or noncompensable) or a compensable consequence of the April 20, 2016 injury is superfluous to the issue of whether applicant sustained and industrial psychiatric injury on that date.
The Appeals Board affirmed the WCJ’s finding of industrial psychiatric injury, without taking a position on other case issues, including apportionment any permanent disability, which was deferred for later adjudication