ADJ13956162 · December 26, 2023

The WCJ and WCAB found substantial medical evidence from PQME Dr. Marina Lensky that the psychiatric injury was predominantly caused by industrial events at work, including harassment by a supervisor, overwork, and a negative performance evaluation. Defendant failed to present a good faith personnel action defense or adequately challenge the causation evidence.

From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Order of October 3, 2023, wherein it was found that while employed as a medical assistant during a cumulative period ending June 23, 2020, applicant sustained industrial injury to the psyche. Applicant also claims industrial injury to the right wrist, "sleep-neurology," and "head-cognitive," but all other issues other than injury to the psyche were deferred.

PQME Dr. Marina Lensky's report found that industrial factors were the predominant cause of applicant's psychiatric injury, assigning 60% causation to harassment by a supervisor.

Favours Applicant prevailed

This medical opinion constituted substantial evidence supporting compensability of the psychiatric injury.

From the decision · page 1For the reasons stated by the WCJ in the Report, which we adopt, incorporate, and quote below, we will deny the defendant's Petition. We note that, while Dr. Lensky noted several factors which may be a basis for apportionment once applicant's condition becomes permanent and stationary, Dr. Lensky clearly stated that industrial factors were the predominant cause of applicant's injury. In order to constitute substantial evidence of injury, a reporting physician is not required to parcel out the exact percentage of industrial and nonindustrial contribution. Dr. Lensky set forth industrial and nonindustrial stressors and opined that industrial factors were the

Defendant did not raise or prove the good faith personnel action defense at trial and failed to present evidence or witnesses to support it.

Favours Applicant prevailed

Without this defense, the injury was found compensable as industrially caused.

From the decision · page 7Finally, the judge did not make any decision that Defendant somehow "forfeited" their right to put on a Rolda defense and show that a substantial cause of the injury was a lawful, good faith, personnel action. Instead Defendant basically put up no Rolda defense or even raised it as an issue on the Pre-Trial Conference Statement. (EAMS #47016653)

Found psychiatric injury predominantly caused by three workplace events: 20% negative performance evaluation, 20% overwork and stressful environment, 60% harassment by supervisor. Deferred permanent disability and apportionment findings.

Her report was found to be substantial medical evidence supporting industrial psychiatric injury causation.

From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Order of October 3, 2023, wherein it was found that while employed as a medical assistant during a cumulative period ending June 23, 2020, applicant sustained industrial injury to the psyche. Applicant also claims industrial injury to the right wrist, "sleep-neurology," and "head-cognitive," but all other issues other than injury to the psyche were deferred.

Labor Code Section 3208.3

Predominant cause requirement for industrial psychiatric injury under Labor Code Section 3208.3.

The PQME's opinion that industrial factors were the predominant cause of the psychiatric injury was accepted as substantial evidence.

From the decision · page 1For the reasons stated by the WCJ in the Report, which we adopt, incorporate, and quote below, we will deny the defendant's Petition. We note that, while Dr. Lensky noted several factors which may be a basis for apportionment once applicant's condition becomes permanent and stationary, Dr. Lensky clearly stated that industrial factors were the predominant cause of applicant's injury. In order to constitute substantial evidence of injury, a reporting physician is not required to parcel out the exact percentage of industrial and nonindustrial contribution. Dr. Lensky set forth industrial and nonindustrial stressors and opined that industrial factors were the

San Francisco Unified Sch. Dist. v. Workers' Comp. Appeals Bd. (Cardozo) (2010) 190 Cal.App.4th 1

Good faith personnel action defense under Labor Code Section 3208.3(h).

Defendant failed to raise or prove the good faith personnel action defense at trial, so the injury was found compensable.

From the decision · page 2We have omitted a portion of the Report in which the WCJ writes that industrial events were the sole cause of the psychiatric injury. (Report at p. 5.) This appears to contradict Dr. Lensky's opinion that applicant " developed industrial aggravation of pre-existing anxiety and depressive disorders due to alleged mistreatment by [her] manager." (June 17, 2021 report at p. 89.) It appears that in parceling out percentages of causation, Dr. Lensky was not discussing whether actual events of employment were the predominant cause of injury but was rather incorrectly parceling out only industrial factors in determining whether the good faith nondiscriminatory personnel action defense applied. (San Francisco Unified Sch. Dist. v. Workers' Comp. Appeals Bd. (Cardozo) (2010) 190 Cal.App.4th 1 [75 Cal.Comp.Cases 1251] [in determining whether personnel actions substantially caused psychiatric injury, both industrial and nonindustrial factors must be considered].) However, Dr. Lensky's error in this regard is harmless, given that if defendant did not meet the threshold when utilizing only industrial factors, it necessarily would not meet the threshold when nonindustrial factors further diluted the percentage contribution of any personnel actions. In any case, as noted by the WCJ, defendant did not raise the defense at trial.

Detailed and convincing psychiatric report by Dr. Lensky, including review of treatment records and applicant's detailed injury account.

From the decision · page 5"There is indeed substantial medical evidence of an industrially caused psychiatric injury. Dr. Lensky's report is 92 pages long. At page 50 is where the records review focuses on events that are part of the cumulative trauma. Dr. Lensky reviews treatment records from when Applicant first stopped working with complaints of headaches, anxiety, and work-related stress. Dr. Lensky reviewed reporting from Dr. Bamshad who apparently was treating Applicant in 2020 for psychiatric symptoms. He reviewed reports of psychologist Dr. David Scott for treatment in 2020 for work related stress. The reporting of Applicant's account of the injury is quite detailed as shown at pages 67 to 72.

Defendant's failure to timely investigate or depose key witnesses such as the alleged harasser Kenton Halim.