ADJ11360280 · December 22, 2021

The WCAB found that the applicant sustained industrial injury in the form of cardiac arrest due to cumulative work stress, relying on the medical opinion of internist Dr. Juan C. Larach, who opined that work stress was a contributing cause of the cardiac arrest. The WCAB rejected the defense argument relying on psychologist Dr. Joshua Kirz's opinion, noting Dr. Kirz was not a medical doctor and not competent to opine on physical heart injury causation. The WCAB also clarified that Labor Code section 3208.3's heightened causation standard for psychiatric injuries does not apply to physical injuries like cardiac arrest.

From the decision · page 1Defendant seeks reconsideration of our Decision After Reconsideration of October 15, 2021 wherein we found that, while employed as a bus operator during a cumulative period ending February 28, 2018, applicant sustained industrial injury in the form of cardiac arrest. All other issues were deferred. In finding industrial injury, we reversed a workers' compensation administrative law judge's (WCJ) Findings and Award [sic]1, wherein it was found that, while employed as a bus driver during a cumulative period ending February 28, 2018, applicant did not sustain industrial injury in the form of cardiac arrest.2

Dr. Larach's medical opinion that work stress contributed to applicant's cardiac arrest.

Favours Applicant prevailed

It was the only substantial medical evidence on causation and was relied upon by the WCAB to find industrial injury.

From the decision · page 4We will affirm the WCJ's findings in case ADJ12092966. However, we will rescind the Findings and Award in case ADJ11360280, and issue a new decision where we find cumulative industrial injury in the form of cardiac arrest. As explained below, the WCJ erred in not following the medical opinion of internist Juan C. Larach, M.D., which was the only substantial medical evidence offered on the issue of causation of applicant's cardiac arrest.

Applicant's credible testimony about stressful working conditions including traffic, unruly passengers, and racial insults.

Favours Applicant prevailed

Supported the medical opinion that work stress contributed to the cardiac arrest.

From the decision · page 2She testified that she had more stress in the last five years of her employment with AC Transit due to driving, the traffic increase, passenger problems, including them not wanting to pay and people trying to smoke on the bus. The passengers would do things that were against the bus rules. Sometimes she had to call the sheriff because they would not comply with the bus rules. During traffic, the other driver would honk, give her the finger, call her names, cut her off. She recalls one incident when she was stopped at a light and one driver came up next to her and he called her a "black bitch."

Dr. Kirz is not a medical doctor and not competent to opine on physical heart injury causation.

Favours Applicant prevailed

The WCAB rejected his opinion on causation of cardiac arrest, favoring Dr. Larach's medical expertise.

From the decision · page 3While we understand that Dr. Kirz believed that Dr. Larach's opinion in this regard was speculative, as we explained in our original decision, Dr. Kirz is not an internist or a cardiologist. In fact, he is not even a medical doctor. While he is competent to opine regarding whether applicant sustained a psychiatric injury pursuant to Labor Code section 3208.3, he is not competent to opine regarding the causation of a physical injury to the heart, or the cause of cardiac arrest,

Dr. Larach opined that work stress, including daily stressors of driving a bus and the sexual assault incident, was a contributing cause of applicant's heart disease and cardiac arrest, even without a PTSD diagnosis.

Dr. Larach's opinion was the only substantial medical evidence on causation of cardiac arrest and was relied upon by the WCAB to find industrial injury.

From the decision · page 4We will affirm the WCJ's findings in case ADJ12092966. However, we will rescind the Findings and Award in case ADJ11360280, and issue a new decision where we find cumulative industrial injury in the form of cardiac arrest. As explained below, the WCJ erred in not following the medical opinion of internist Juan C. Larach, M.D., which was the only substantial medical evidence offered on the issue of causation of applicant's cardiac arrest.

Dr. Kirz opined that the applicant did not meet criteria for any diagnosable psychiatric condition and did not believe the 2016 incident caused the 2018 cardiac arrest. He was not competent to opine on physical heart injury causation.

Dr. Kirz's opinion was rejected because he is not a medical doctor and not competent to opine on physical injury causation.

From the decision · page 3While we understand that Dr. Kirz believed that Dr. Larach's opinion in this regard was speculative, as we explained in our original decision, Dr. Kirz is not an internist or a cardiologist. In fact, he is not even a medical doctor. While he is competent to opine regarding whether applicant sustained a psychiatric injury pursuant to Labor Code section 3208.3, he is not competent to opine regarding the causation of a physical injury to the heart, or the cause of cardiac arrest,

Labor Code section 3208.3

Labor Code section 3208.3 governs psychiatric injuries with heightened causation requirements, but does not apply to physical injuries such as cardiac arrest.

The WCAB clarified that the heightened causation standard for psychiatric injuries under Labor Code section 3208.3 does not apply to physical injuries like cardiac arrest, which only require work to be a contributing cause.

From the decision · page 2and psychiatrists in the workers' compensation system are charged with determining whether an injured worker has sustained "psychiatric injury" under Labor Code section 3208.3, meaning those "diagnosed using the terminology and criteria of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Third Edition-Revised [DSM], or the terminology and diagnostic criteria of other psychiatric diagnostic manuals generally approved and accepted nationally by practitioners in the field of psychiatric medicine." (Lab. Code, § 3208.3, subd. (a).) Psychiatric injuries governed by Labor Code section 3208.3 are subject to numerous limitations not applicable to other injuries. Psychiatric injuries must be predominately caused by actual events of employment (Lab. Code, § 3208.3, subd. (b)(1)), whereas other injuries only require that work be a contributing cause of the injury. (South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 299 [80 Cal. Comp. Cases 489].). While the requirement that "actual events of employment" be the cause of psychiatric injury requires "objective evidence of harassment, persecution, or other basis for the alleged psychiatric injury" (Verga v. Workers' Comp. Appeals Bd. (2008) 159 Cal.App.4th 174, 186 [73 Cal.Comp.Cases 63]), this requirement does not apply to other injuries.

McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408

For physical injuries caused by emotional stress, the relevant inquiry is whether work-related stress is a contributing cause to the injury.

The WCAB applied this standard to find that work stress contributed to the applicant's cardiac arrest injury.

From the decision · page 6In order to be compensable, "actual events of employment [must be] predominant as to all causes combined of the psychiatric injury." (Lab. Code, § 3208.3, subd. (b)(1).) However, this heightened causation standard does not apply to physical injuries, even if the injuries were caused by emotional stress. (Verizon/GTE v. Workers' Comp. Appeals Bd. (Garth) (2002) 67 Cal.Comp.Cases 856, 857 [writ den.]; May Co. Department Stores v. Workers' Comp. Appeals Bd. (Hull) (2001) 66 Cal.Comp.Cases 1378, 1380 [writ den.]; City of Cypress v. Workers' Comp. Appeals Bd. (Spernak) (1996) 61 Cal.Comp.Cases 612, 613 [writ den.].) The relevant inquiry in a claim for physical injury, such as a claim for injury in the form of cardiac arrest, is whether the work-related stress is a contributing cause to the applicant's injury. (McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 418 [33 Cal.Comp.Cases 660]; Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310].)

Applicant's credible testimony about work stressors including traffic, unruly passengers, and racial insults.

From the decision · page 2She testified that she had more stress in the last five years of her employment with AC Transit due to driving, the traffic increase, passenger problems, including them not wanting to pay and people trying to smoke on the bus. The passengers would do things that were against the bus rules. Sometimes she had to call the sheriff because they would not comply with the bus rules. During traffic, the other driver would honk, give her the finger, call her names, cut her off. She recalls one incident when she was stopped at a light and one driver came up next to her and he called her a "black bitch."