ADJ12418883 · May 7, 2026

The WCAB held that the good faith personnel action defense analysis is premature until the medical evidence sufficiently establishes an industrial injury to psyche.

From the decision · page 6Once an employee has established an industrial psychiatric injury, an employer may seek to have its liability for compensation barred by proving that the injury was substantially caused by lawful, nondiscriminatory, good faith personnel actions. (Lab. Code, § 3208.3(h).) The burden of proof rests with the party holding the affirmative of the issue, and thus, defendant holds the burden of proving the good faith personnel action defense.

The WCAB found that the medical evidence from Dr. Kesselman was not sufficient to establish the date and causation of the psychiatric injury as industrial, requiring further development of the record by the WCJ.

From the decision · page 6Here, as explained below, because Dr. Kesselman's opinions are not clear with respect to the date of injury, the medical evidence is not sufficient to support that applicant sustained an industrial injury. Nevertheless, we must emphasize that when a WCJ determines that an employee did not sustain an industrial injury to psyche, there is no compensation owed, and there is no need to analyze whether compensation is barred by good faith personnel actions. Here however, once the record is further developed with respect to the medical evidence, if it is sufficient to support that applicant's claimed injury to psyche was industrially caused, defendant will have to meet its burden to show that compensation is barred.

Dr. Kesselman assigned January 8, 2019 as the date of injury but did not clearly establish the cumulative injury period or causation percentages, leading to insufficient medical evidence for industrial injury.

Favours neutral

This lack of clarity in medical evidence required the WCAB to remand for further development of the medical record.

From the decision · page 8As noted, Dr. Kesselman evaluated applicant in person, took a history of injury, reviewed extensive records, issued supplemental reports and was deposed. (Exhibits 1-3; Exhibit B.) However, there is no basis in the evidentiary record to support Dr. Kesselman's conclusion that applicant suffered an industrial injury as described. Specifically, applicant alleged a cumulative injury through June 19, 2019. Dr. Kesselman assigned a January 8, 2019, "onset" date of injury, which was the last day worked before applicant was on leave from January 9, 2019 until April 1, 2019, but it is not clear whether he meant that January 8, 2019 was the end date. (Exhibit 3, at p. 13.) His reporting seemed to indicate that events that occurred after applicant returned to work from April 2, 2019 to June 18, 2019 were outside of the claimed cumulative injury period. Dr.

Applicant testified credibly about the write-up and administrative leave events in December 2018, which were accepted as actual events of employment relevant to the injury claim.

Favours Applicant prevailed

This testimony supported the presence of actual events of employment, satisfying the first prong of the Rolda analysis.

From the decision · page 7Applicant did offer some testimony about the write-up for not watching the co-worker changing the child's diaper and being placed on administrative leave on December 4, 2018. (Minutes, July 27, 2021, at p. 5:5-14; 5:18-22.) Additionally, applicant reported the two events to Dr. Kesselman who accounted for them in his history of injury. (Exhibit 1, at pp. 4, 6.) Hence, it appears that there is no dispute that the write-up for not watching the co-worker changing the child's diaper and being placed on administrative leave on December 4, 2018, actually occurred. Thus, we are persuaded that the trial record contains substantial evidence that actual events of employment were involved, thereby potentially satisfying the first prong of the Rolda analysis. (See Cardozo, supra; Rolda, supra, at 247.) However, upon return, the WCJ must specifically identify the events of employment, bearing in mind that more than one event may have occurred during one period of cumulative trauma.

Defendant failed to present witnesses or evidence to meet its burden on the good faith personnel action defense, leaving that issue unresolved on the record.

Favours Applicant prevailed

This failure meant that if medical evidence supported industrial injury, defendant would be liable for compensation.

From the decision · page 7Here, as explained below, the medical record requires development of the record as to whether applicant sustained an industrial injury to psyche. We also must emphasize however, by its choice not to bring any witnesses to testify and submit any relevant evidence, defendant utterly failed its burden on the record before us. This means that if substantial medical evidence had supported that applicant sustained an industrial injury, defendant would have been liable for compensation.

Dr. Kesselman opined that the predominant cause of applicant's psychiatric injury was the disciplinary write-up for not watching a co-worker changing a child's diaper and the administrative leave placed on December 4, 2018. He assigned a date of injury of January 8, 2019, but did not assign specific causation percentages and misunderstood the cumulative injury legal definition, making his reports insufficient as substantial evidence.

Dr. Kesselman's reports did not constitute substantial medical evidence because he misunderstood the legal definition of cumulative injury and did not clearly establish causation or the injury period.

Lab. Code, 3208.3(b)(1); Department of Corrections v. Workers' Comp. Appeals Bd. (Garcia) (1999) 76 Cal.App.4th 810, 816 [64 Cal.Comp.Cases 1356]

To establish compensability for psychological injury, applicant must show by preponderance of evidence that actual events of employment predominantly caused the injury, meaning work-related cause has greater than 50% share of all causal factors.

Applied to determine the burden of proof for industrial causation of psychiatric injury.

From the decision · page 5DISCUSSION In order to establish that a psychological injury is compensable, an injured worker must show by a preponderance of the evidence that actual events of employment predominantly caused the psychological injury. (Lab. Code, § 3208.3(b)(1).) "[T]he phrase `predominant as to all causes' is intended to require that the work-related cause has greater than a 50 percent share of the entire set of causal factors." (Department of Corrections v. Workers' Comp. Appeals Bd. (Garcia) (1999) 76 Cal.App.4th 810, 816 [64 Cal.Comp.Cases 1356].)

Lab. Code, 3208.3(h); San Francisco Unified School Dist. v. Workers' Comp. Appeals Bd. (Cardozo) (2013) 190 Cal.App.4th 1, 9 [75 Cal.Comp.Cases 1251]; Rolda v. Pitney Bowes, Inc. (2001) 66 Cal.Comp.Cases 241 (Appeals Board en banc)

Employer may bar compensation by proving injury was substantially caused by lawful, nondiscriminatory, good faith personnel actions; burden is on employer.

Applied to outline the multilevel analysis for good faith personnel action defense and burden of proof on employer.

From the decision · page 6Once an employee has established an industrial psychiatric injury, an employer may seek to have its liability for compensation barred by proving that the injury was substantially caused by lawful, nondiscriminatory, good faith personnel actions. (Lab. Code, § 3208.3(h).) The burden of proof rests with the party holding the affirmative of the issue, and thus, defendant holds the burden of proving the good faith personnel action defense.

Applicant's testimony about the write-up for not watching the co-worker changing the child's diaper and being placed on administrative leave on December 4, 2018, which was accounted for by Dr. Kesselman in his history of injury.

From the decision · page 7Applicant did offer some testimony about the write-up for not watching the co-worker changing the child's diaper and being placed on administrative leave on December 4, 2018. (Minutes, July 27, 2021, at p. 5:5-14; 5:18-22.) Additionally, applicant reported the two events to Dr. Kesselman who accounted for them in his history of injury. (Exhibit 1, at pp. 4, 6.) Hence, it appears that there is no dispute that the write-up for not watching the co-worker changing the child's diaper and being placed on administrative leave on December 4, 2018, actually occurred. Thus, we are persuaded that the trial record contains substantial evidence that actual events of employment were involved, thereby potentially satisfying the first prong of the Rolda analysis. (See Cardozo, supra; Rolda, supra, at 247.) However, upon return, the WCJ must specifically identify the events of employment, bearing in mind that more than one event may have occurred during one period of cumulative trauma.

Defendant failed to bring witnesses or submit relevant evidence to meet its burden on the good faith personnel action defense.

From the decision · page 7Here, as explained below, the medical record requires development of the record as to whether applicant sustained an industrial injury to psyche. We also must emphasize however, by its choice not to bring any witnesses to testify and submit any relevant evidence, defendant utterly failed its burden on the record before us. This means that if substantial medical evidence had supported that applicant sustained an industrial injury, defendant would have been liable for compensation.