ADJ14327332 · November 6, 2023

The WCAB found the WCJ's reliance on the PQME report inadequate due to incomplete medical history and recommended further development of the record to clarify causation and apportionment issues.

From the decision · page 1Applicant seeks reconsideration of the Findings of Fact and Order (F&O) of August 14, 2023, wherein the workers' compensation administrative law judge (WCJ) found that applicant did not sustain injury arising out of and during the course of employment (AOE/COE) in the form of injury to his psyche and ordered that he take nothing.

PQME Dr. Peters' report was based on incomplete medical history and lack of employment records, limiting its adequacy.

Favours Applicant prevailed

This inadequacy led the WCAB to reject the WCJ's reliance on the report and order further development of the record.

From the decision · page 5Here, applicant claimed a cumulative injury but the WCJ found that he did not meet his burden of proof to support industrial causation and ordered that he take nothing. (F&O, p. 1.) The WCJ based this conclusion on the report of the PQME Dr. Peters instead of PTP Dr. Fera. (Opinion on Decision (OOD), p. 2.) However, Dr. Peters noted that no other psychological or psychiatric reports or records had been made available for her review at the time of her report and that she would appreciate the opportunity to review any reports or records that could be obtained from Dr.

Predominant cause of applicant's anxiety and depression was unmanageable workload starting spring 2020; noted lack of access to other medical records and employment records, limiting her report's adequacy.

Report based on inadequate medical history and examinations; requested additional records for review; opinion that 65% of impairment was due to termination may conflate causation and apportionment.

From the decision · page 2In the report by Panel Qualified Medical Evaluator (PQME) and licensed psychologist Stefanie Peters, Ph.D., Dr. Peters reported that applicant's job responsibilities were to troubleshoot and resolve issues for customers who purchased defendant's software product. (Ex. A, PQME Report, 2/27/22, p. 4.) About two years after he started working for defendant, he was working 11-12 hours days, was dealing with difficult cases and customers, and was having problems with his boss. (Ex. A, pp. 4-5.) When discussing applicant's diagnoses, Dr. Peters stated that "I would be interested in having the opportunity to review the records of Dr. Thomas Fera, to see what information these records provide." (Ex. A, p. 14.) Dr. Peters further stated that "It may be helpful to review his work records from Rapid7. These may provide additional information that would be helpful in determining whether there are underlying personality problems." (Ex. A, p. 15.)

Concluded applicant's psychopathology was 100% caused by employment injury; certified State Disability Insurance for anxiety and depression related to employment.

Opinion was not relied upon by WCJ; WCJ favored PQME report instead.

From the decision · page 3In the report by Primary Treating Physician (PTP) Dr. Thomas Fera, Dr. Fera noted that:

South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302

Employee bears burden of proving injury arose out of and in the course of employment by preponderance of evidence.

Applied to determine compensability of psychiatric injury.

From the decision · page 3DISCUSSION The employee bears the burden of proving the injury arose out of and in the course of employment by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a), 3202.5.)1 Whether an employee's injury arose out of and in the course of employment

Lab. Code, 3208.3(b)(1)

To establish compensable psychiatric injury, employee must show actual events of employment were predominant cause (>50%) of injury.

Applied to assess causation of psychiatric injury.

From the decision · page 4Section 3208.3(b)(1) states that: "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." "Predominant as to all causes" means that "the work-related cause has greater than a 50 percent share of the entire set of causal factors." (Dept. of Corrections v. Workers' Comp. Appeals Bd. (Garcia) (1999) 76 Cal.App.4th 810, 816 [64 Cal.Comp.Cases 1356, 1360]; Watts v. Workers' Comp. Appeals Bd. (2004) 69 Cal.Comp.Cases 684, 688 (writ den.).) If the threshold for a compensable psychiatric injury has been met under section 3208.3(b), and the employer has asserted that some of the actual events of employment were good faith personnel actions, the WCJ must determine whether section 3208.3(h) bars applicant's claim. Section 3208.3(h) provides as follows:

Lab. Code, 3208.3(h)

No compensation for psychiatric injury substantially caused by lawful, nondiscriminatory, good faith personnel action.

Applied to consider employer's affirmative defense.

From the decision · page 4No 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. The burden of proof shall rest with the party asserting the issue.

Lab. Code, 3208.3(b)(3)

Substantial cause defined as at least 35-40% of causation from all sources combined.

Applied in multilevel analysis of psychiatric injury claims.

From the decision · page 4Section 3208.3(b)(3) defines substantial cause as "at least 35 to 40 percent of the causation from all sources combined." (Lab. Code, § 3208.3(b)(3).)

Rolda v. Pitney Bowes, Inc. (2001) 66 Cal.Comp.Cases 241 (Appeals Board en banc)

WCJ must determine causation, personnel actions, and substantial cause in psychiatric injury claims per multilevel analysis.

Applied to guide WCJ's multilevel analysis.

From the decision · page 4A multilevel analysis is accordingly required when an industrial psychiatric injury is alleged and the employer raises the affirmative defense of a lawful, nondiscriminatory, good faith personnel action. (Rolda v. Pitney Bowes, Inc. (2001) 66 Cal.Comp.Cases 241 (Appeals Board en banc).) The required multilevel analysis is, as follows:

E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928

Medical opinion must be based on adequate examination and history, not speculative or erroneous.

Applied to evaluate medical evidence adequacy.

From the decision · page 5Medical evidence is required if there is an issue regarding the compensability of the claim. (Lab. Code, § 4060(c)(d), 4061(i), 4062.3(l).) A medical opinion must be framed in terms of reasonable medical probability, it must be based on an adequate examination and history, it must not be speculative, and it must set forth reasoning to support the expert conclusions reached. (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 (Appeals Bd. en banc).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].) Defendant holds the burden of proof on apportionment of permanent disability. (Lab. Code, § 5705; see also Escobedo, supra, 70 Cal.Comp.Cases at p. 613.)

PQME Dr. Peters' report was based on incomplete medical history and lack of employment records, limiting its adequacy.

From the decision · page 5Here, applicant claimed a cumulative injury but the WCJ found that he did not meet his burden of proof to support industrial causation and ordered that he take nothing. (F&O, p. 1.) The WCJ based this conclusion on the report of the PQME Dr. Peters instead of PTP Dr. Fera. (Opinion on Decision (OOD), p. 2.) However, Dr. Peters noted that no other psychological or psychiatric reports or records had been made available for her review at the time of her report and that she would appreciate the opportunity to review any reports or records that could be obtained from Dr.