Opinion
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JODI VIEIRA, Applicant v. KAISER PERMANENTE, permissibly self-insured, Defendant Adjudication Nos. ADJ11408575, ADJ14068840 Workers’ Compensation Appeals Board State of California February 5, 2024Van Nuys District Office
OPINION AND ORDER GRANTING PETITION FOR RECONSIDERATION
JOSEPH V. CAPURRO, COMMISSIONER
Defendant seeks reconsideration of the October 30, 2023 Findings & Order, wherein the workers' compensation administrative law judge (WCJ) found in relevant part that applicant sustained injury in the form of stress, psyche, and nervous system while employed by defendant as a registered nurse during the period from January 16, 2018 through July 2, 2018; that defendant did not sustain its burden to establish that applicant's injury claim was barred by the good faith personnel action provision of Labor Code section 3208.3, subdivision (h); and that the opinion of the Court of Appeal is not res judicata/collateral estoppel.
Unless otherwise stated, all further references are to the Labor Code.
Defendant contends that the January 25, 2018 meeting and subsequent corrective actions including termination were personnel actions and that they were lawful, non-discriminatory and in good faith; that res judicata / collateral estoppel should apply based on the opinion of the Court of Appeal in applicant's civil case; and that the Qualified Medical Evaluator (QME) concluded that personnel actions constituted 60% of the causation of applicant's psychiatric injury, and that 30% was attributed to the January 25, 2018 meeting and 30% was attributed to the termination of July 2, 2018, so that defendant met its burden to show that the actions were a substantial cause of the injury.
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We received an Answer from applicant. The WCJ prepared a Report and Recommendation on Petition for Reconsideration (Report), recommending that the Petition be denied.
We have considered the allegations of the Petition for Reconsideration and the Answer and the contents of the Report. Based upon our preliminary review of the record, we will grant defendant's Petition for Reconsideration. Our order granting defendant's Petition for Reconsideration is not a final order, and we will order that a final decision after reconsideration is deferred pending further review of the merits of the Petition for Reconsideration and further consideration of the entire record in light of the applicable statutory and decisional law. Once a final decision after reconsideration is issued by the Appeals Board, any aggrieved person may timely seek a writ of review pursuant to Labor Code section 5950 et seq.
I.
On August 2023, QME Sean Sassano-Higgins, M.D., issued a report following an evaluation of applicant on July 7, 2023. Dr. Sassano-Higgins concluded that applicant's injury to psyche was caused by:
30% unfair disciplinary action of a root cause analysis meeting 1/25/2018 (industrial);
-30% unfair termination 7/2/2018 (industrial);
-10% pre-existing depression (non-industrial);
-10% prior settled civil case with Los Robles Hospital (non-industrial);
-20% applicant's use of ineffective coping strategies for stress (non-industrial). .
(Exhibit M, p. 29.)
Section 3208.3 governs claims for 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:
No 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.
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(Lab. Code, § 3208.3(h).)
Section 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).)
A 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:
The WCJ, after considering all the medical evidence, and the other documentary and testimonial evidence of record, must determine:
(1) whether the alleged psychiatric injury involves actual events of employment, a factual/legal determination; (2) if so, whether such actual events were the predominant cause of the psychiatric injury, a determination which requires medical evidence; (3) if so, whether any of the actual employment events were personnel actions that were lawful, nondiscriminatory and in good faith, a factual/legal determination; and (4) if so, whether the lawful, nondiscriminatory, good faith personnel actions were a "substantial cause" of the psychiatric injury, a determination which requires medical evidence. Of course, the WCJ must then articulate the basis for his or her findings in a decision which addresses all the relevant issues raised by the criteria set forth in Labor Code section 3208.3.
(Id. at p. 247.)
Here, applicant met her burden to show that her injury was predominantly caused by those events of employment, the second prong of Rolda.
In turning to the issue of whether the personnel actions were in good faith, it is important to note preliminarily that the determination under section 3208.3(h) is based on a consideration of the industrial causes, and not the non-industrial causes. (San Francisco Unified School Dist. v. Workers' Comp. Appeals Bd. (Cardozo) (2013) 190 Cal.App.4th 1 (writ den.).) Therefore, the analysis is whether either of the two actions identified by the QME, the meeting of January 25, 2018 and the termination of July 2, 2018, is a substantial cause under section 3208.3(b)(3). That is, the substantial cause determination using the QME's conclusions would be based on 50% for the meeting of January 25, 2018 and 50% for the termination of July 2, 2018. Thus, based on the reporting of the QME, defendant would meet its burden of proof if it is able to demonstrate that one of the two identified personnel actions was in good faith.
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II.
It is well established that decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, §§ 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) "The term 'substantial evidence' means evidence which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.. .It must be reasonable in nature, credible, and of solid value." (Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164 [48 Cal.Comp.Cases 566], emphasis removed and citations omitted.)
Decisions of the Appeals Board "must be based on admitted evidence in the record." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc).) An adequate and complete record is necessary to understand the basis for the WCJ's decision. (Lab. Code, § 5313; see also Cal. Code Regs., tit. 8, § 10787.) "It is the responsibility of the parties and the WCJ to ensure that the record is complete when a case is submitted for decision on the record. At a minimum, the record must contain, in properly organized form, the issues submitted for decision, the admissions and stipulations of the parties, and admitted evidence." (Hamilton, supra, 66 Cal.Comp.Cases at p. 475.) The WCJ's decision must "set[] forth clearly and concisely the reasons for the decision made on each issue, and the evidence relied on," so that "the parties, and the Board if reconsideration is sought, [can] ascertain the basis for the decision[.] . . . For the opinion on decision to be meaningful, the WCJ must refer with specificity to an adequate and completely developed record." (Id. at p. 476 (citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal. 2d 753, 755 [33 Cal.Comp.Cases 350]).)
The Appeals Board has the discretionary authority to develop the record when the record does not contain substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (§§ 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [65 Cal. Rptr. 2d 431, 62 Cal.Comp.Cases 924] ["The principle of allowing full development of the evidentiary record to enable a complete adjudication of the issues is consistent with due process in connection with workers' compensation claims."]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal. App. 4th 1117 [72 Cal. Rptr. 2d 898, 63 Cal.Comp.Cases 261];
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Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805]; Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584].)
The Appeals Board also has a constitutional mandate to "ensure substantial justice in all cases." (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403 [65 Cal.Comp.Cases 264].) The Board may not leave matters undeveloped where it is clear that additional discovery is needed. (Id. at p. 404.)
Labor Code section 5310 states in relevant part that: "The appeals board may appoint one or more workers' compensation administrative law judges in any proceeding, as it may deem necessary or advisable, and may refer, remove to itself, or transfer to a workers' compensation administrative law judge the proceedings on any claim...." (See also Lab. Code, §§ 123.7, 5309.)
Here, it is unclear from our preliminary review whether the existing record is sufficient to support the decision, order, and legal conclusions of the WCJ; and/or whether further development of the record may be necessary.
III.
Finally, we observe that under our broad grant of authority, our jurisdiction over this matter is continuing.
A grant of reconsideration has the effect of causing "the whole subject matter [to be] reopened for further consideration and determination" (Great Western Power Co. v. Industrial Acc. Com. (Savercool) (1923) 191 Cal. 724, 729 [10 I.A.C. 322]) and of "[throwing] the entire record open for review." (State Comp. Ins. Fund v. Industrial Acc. Com. (George) (1954) 125 Cal.App.2d 201, 203 [19 Cal.Comp.Cases 98].) Thus, once reconsideration has been granted, the Appeals Board has the full power to make new and different findings on issues presented for determination at the trial level, even with respect to issues not raised in the petition for reconsideration before it. (See Lab. Code, §§ 5907, 5908, 5908.5; see also Gonzales v. Industrial Acci. Com. (1958) 50 Cal. 2d 360, 364.) ["[t]here is no provision in chapter 7, dealing with proceedings for reconsideration and judicial review, limiting the time within which the commission may make its decision on reconsideration, and in the absence of a statutory authority limitation none will be implied."]; see generally Lab. Code, § 5803 ["The WCAB has continuing jurisdiction over its orders, decisions, and awards.... At any time, upon notice and after an
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opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any order, decision, or award, good cause appearing therefor.].)
"The WCAB . . . is a constitutional court; hence, its final decisions are given res judicata effect." (Azadigian v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 372, 374 [57 Cal.Comp.Cases 391; see Dow Chemical Co. v. Workmen's Comp. App. Bd. (1967) 67 Cal.2d 483, 491 [62 Cal.Rptr. 757, 432 P.2d 365]; Dakins v. Board of Pension Commissioners (1982) 134 Cal.App.3d 374, 381 [184 Cal.Rptr. 576]; Solari v. Atlas-Universal Service, Inc. (1963) 215 Cal.App.2d 587, 593 [30 Cal.Rptr. 407].) A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]), or determines a "threshold" issue that is fundamental to the claim for benefits. Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) ["interim orders, which do not decide a threshold issue, such as intermediate procedural or evidentiary decisions, are not 'final' "]; Rymer, supra, at p. 1180 ["[t]he term ['final'] does not include intermediate procedural orders or discovery orders"]; Kramer, supra, at p. 45 ["[t]he term ['final'] does not include intermediate procedural orders"].)
Labor Code section 5901 states in relevant part that:
"No cause of action arising out of any final order, decision or award made and filed by the appeals board or a workers' compensation judge shall accrue in any court to any person until and unless the appeals board on its own motion sets aside the final order, decision, or award and removes the proceeding to itself or if the person files a petition for reconsideration, and the reconsideration is granted or denied. ..."
Thus, this is not a final decision on the merits of the Petition for Reconsideration, and we will order that issuance of the final decision after reconsideration is deferred. Once a final decision is issued by the Appeals Board, any aggrieved person may timely seek a writ of review pursuant to Labor Code sections 5950 et seq.
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IV.
Accordingly, we grant defendant's Petition for Reconsideration, and order that a final decision after reconsideration is deferred pending further review of the merits of the Petition for Reconsideration and further consideration of the entire record in light of the applicable statutory and decisional law.
For the foregoing reasons,
IT IS ORDERED that defendant's Petition for Reconsideration of the Findings of Fact and Award issued on October 23, 2023 by a workers' compensation administrative law judge is GRANTED.
IT IS FURTHER ORDERED that a final decision after reconsideration is DEFERRED pending further review of the merits of the Petition for Reconsideration and further consideration of the entire record in light of the applicable statutory and decisional law.
I CONCUR, ANNE SCHMITZ, DEPUTY COMMISSIONER, JOSE H. RAZO, COMMISSIONER