ADJ9425810 · February 3, 2026

The QME opined that 60% of the psychiatric injury was caused by actual events of employment, meeting the predominance requirement under Labor Code section 3208.3(b)(1). The employer failed to prove that good-faith personnel action was a substantial cause of the injury under section 3208.3(h).

From the decision · page 15However, this analysis misconstrues the compensability requirements under section 3208.3 with respect to a claim of psychiatric injury. Section 3208.3(b)(1) requires the applicant "demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury." (Lab. Code, § 3208.3(b)(1).) Here, there is no dispute that the QME has opined that 60 percent of applicant's psychiatric injury was caused by actual events of employment. (Ex. R, Report of Boukje Eerkens, Psy.D., dated May 23, 2017, at p. 2.) Thus, applicant's claim of psychiatric injury meets the predominance requirements of section 3208.3(b)(1).

QME opined 60% of psychiatric injury caused by actual events of employment, meeting predominance requirement.

Favours Applicant prevailed

This established compensability under Labor Code section 3208.3(b)(1).

From the decision · page 15However, this analysis misconstrues the compensability requirements under section 3208.3 with respect to a claim of psychiatric injury. Section 3208.3(b)(1) requires the applicant "demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury." (Lab. Code, § 3208.3(b)(1).) Here, there is no dispute that the QME has opined that 60 percent of applicant's psychiatric injury was caused by actual events of employment. (Ex. R, Report of Boukje Eerkens, Psy.D., dated May 23, 2017, at p. 2.) Thus, applicant's claim of psychiatric injury meets the predominance requirements of section 3208.3(b)(1).

Employer failed to prove that good-faith personnel action was a substantial cause of injury, only one event (supervisor reprimand) caused 15% of injury.

Favours Applicant prevailed

This meant compensation was not barred under Labor Code section 3208.3(h).

From the decision · page 20Having reviewed the entire record, it appears that none of the three remaining events of employment implicated applicant's employment status or could otherwise reasonably be construed as personnel action taken by the employer. Thus, of the four actual events of employment identified by the QME as causative of applicant's psychiatric injury, each causing 15 percent of the injury, only the "supervisor reprimand" constituted personnel action. Because only one event of employment was personnel action, and because that personnel action caused 15 percent of applicant's psychiatric injury, it appears that defendant has not met its burden of establishing that personnel action was a substantial cause (i.e., 35 to 40 percent) of applicant's injury. (Lab. Code, § 3208.3(h) ["the burden of proof shall rest with the party asserting the issue"].) Accordingly, we preliminarily conclude that compensation is not barred under section 3208.3(h).

Opined that 60 percent of applicant's psychiatric injury was caused by actual events of employment, with four discrete factors each causing 15 percent of the disability. One factor, a supervisor reprimand, was lawful good-faith personnel action.

The QME's opinion was relied upon to determine compensability and the effect of good-faith personnel action.

From the decision · page 4Decision explained, in relevant part, that QME Dr. Eerkens had apportioned 40 percent of applicant's present psychiatric disability to nonindustrial factors. Of the remaining 60 percent, the QME identified four discrete factors of causation, each responsible for 15 percent of applicant's present disability. (Opinion on Decision, dated June 9, 2021, at pp. 8-10.) The WCJ determined that one of the four factors, a "supervisor reprimand of 09-27-2013" constituted lawful, nondiscriminatory good-faith personnel action under section 3208.3(h). (Id. at p. 10.) The WCJ concluded that the addition of the 40 percent nonindustrial causation and the 15 percent attributable to good-faith personnel action meant that 65 percent of applicant's disability was non-industrial. Because applicant had not met the predominant cause requirement of section 3208.3(b)(1), applicant's claim for psychiatric injury was not compensable. (Id. at p. 11.)

Labor Code section 3208.3(b)(1)

Labor Code section 3208.3(b)(1) requires that actual events of employment be the predominant cause of psychiatric injury.

Applied to determine compensability of psychiatric injury.

From the decision · page 15However, this analysis misconstrues the compensability requirements under section 3208.3 with respect to a claim of psychiatric injury. Section 3208.3(b)(1) requires the applicant "demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury." (Lab. Code, § 3208.3(b)(1).) Here, there is no dispute that the QME has opined that 60 percent of applicant's psychiatric injury was caused by actual events of employment. (Ex. R, Report of Boukje Eerkens, Psy.D., dated May 23, 2017, at p. 2.) Thus, applicant's claim of psychiatric injury meets the predominance requirements of section 3208.3(b)(1).

Labor Code section 3208.3(h)

Labor Code section 3208.3(h) places burden on party asserting good-faith personnel action defense to prove it was a substantial cause of injury.

Applied to assess employer's defense of good-faith personnel action.

From the decision · page 20Having reviewed the entire record, it appears that none of the three remaining events of employment implicated applicant's employment status or could otherwise reasonably be construed as personnel action taken by the employer. Thus, of the four actual events of employment identified by the QME as causative of applicant's psychiatric injury, each causing 15 percent of the injury, only the "supervisor reprimand" constituted personnel action. Because only one event of employment was personnel action, and because that personnel action caused 15 percent of applicant's psychiatric injury, it appears that defendant has not met its burden of establishing that personnel action was a substantial cause (i.e., 35 to 40 percent) of applicant's injury. (Lab. Code, § 3208.3(h) ["the burden of proof shall rest with the party asserting the issue"].) Accordingly, we preliminarily conclude that compensation is not barred under section 3208.3(h).

Applicant's refusal to respond to trial questions and attempts to evade cast doubt on credibility, but the Appeals Board considered all evidence including testimony and lack thereof to protect due process.

From the decision · page 3On July 20, 2018, the WCJ issued a Findings and Order, determining that applicant had not met her burden of proof in establishing injury to her psyche or thyroid. (Findings and Order of Dismissal dated July 20, 2018, Findings of Fact Nos. 1 & 2.) The WCJ's Opinion on Decision noted that applicant's refusal to respond to trial questions and "subsequent attempts to evade have cast irreparable doubt on applicant's credibility and the veracity of the [medical-legal] reports." (Opinion on Decision, dated July 20, 2021, at p. 6.)