1 WORKERS' COMPENSATION APPEALS BOARD. 4 MICHAEL BROOKS, Case No. ADJ (SAC )

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1 1 WORKERS' COMPENSATION APPEALS BOARD 2 STATE OF CALIFORNIA 3 4 MICHAEL BROOKS, Case No. ADJ (SAC ) Applicant, 6 OPINION AND DECISION AFTER RECONSIDERATION 7 VS. 8 COUNTY OF SACRAMENTO, Permissibly 9 Self-Insured, 10 "Defendant(s) On January 24, we granted defendant's Petition for Reconsideration of the _3![ November 4, 2010 Findings and Award issued by the workers' compensation administrative law 14'i judge (WCJ). Therein, the WCJ found that applicant, while employed as a probation officer 15 during the period through December 14, 2007, sustained industrial psychiatric injury causing 16] temporary disability, causing 15% permanent disability, and causing need for further medical 17i treatment. We granted reconsideration in order to allow us time to further study the factual and 18i legal issues in this case. We now issue our Opinion and Decision after Reconsideration. 19 In its Petition for Reconsideration, defendant contended that the WCJ erred in finding that 20 applicant sustained industrial psychiatric injury. Defendant argued that applicant's claim is a 21: result of lawful, nondiscriminatory, good faith personnel actions, that applicant is not a credible 22iý witness, and that the WCJ improperly allowed agreed medical evaluator (AME) Ann Allen, 23 M.D., to serve as the trier of fact. 24 Applicant filed an Answer and the WCJ issued a Report and Recommendation on Petition 25 for Reconsideration (Report) recommending that we deny reconsideration. 2 6! Based on our review of the record and for the reasons discussed below, we will affirm the 27 WCJ's decision.

2 2 In her Opinion on Decision, the WCJ provided the following factual summary which we 3 incorporate herein: 4 "In June of 2007, applicant started his new position as the supervising probation officer at juvenile hall. Immediately after he was appointed, the employer had a meeting outlining the problems that were occurring at the 6 juvenile facility. Specifically, the employer discussed a pending lawsuit about alleged problems with excessive force; however, the employer did not 7 necessarily believe this was occurring. 8 "It was not long before applicant became aware of problems at the facility. Applicant observed behaviors that he felt bordered on violation of protocols. Additionally, applicant felt that the Security Emergency 1.0 Response Team [SERT] resisted supervision and under-minded his authority. Applicant felt that he gained a negative reputation because of his iiý observations about various personnel and the transfer of two employees out of the institution. 12ý "In November 2007, there was an incident involving the [SERT] and a 13 ward. Applicant counseled two of the security team members regarding the incident. Applicant advised his supervisor about the SERT team's resistance to his instructions regarding restraining and movement of the 1 5 wards. Applicant was unaware of anything management did regarding his reports, 16 "On December 14, 2007, applicant met with Chief O'Brien. Chief O'Brien 17! handed applicant a copy of the memo entitled "Admonition & Notice of Internal Affairs Investigation" (Defendant Exhibit H). The memo advised 18J applicant of the allegations by Ron Parker, a [SERT] member, which 191 formed the basis of the internal affairs investigation. The memo directed applicant to refrain from any supervisory duties which involve Ron Parker, 20 refrain from any abusive and or indiscreet language towards Ron Parker, and refrain from any other actions that could reasonably be construed as an 21:[ attempt to intimidate or threaten Ron Parker. Applicant believed that these directives were unreasonable when it was his job to supervise Ron Parker. 221 Applicant believed that with these directives he would not be able to 231 intervene in an emergency. 24ý "Applicant asked to be reassigned or placed on administrative leave pending completion of the investigation. Applicant's requests were denied Applicant did not feel that the Chiefs listened to his concerns or provided a 26! reasonable alternative. However, the employer allowed applicant to change his shifts to reduce contact with Ron Parker. Applicant went to work on 7i1was January 2, 2008 and saw that Ron Parker was scheduled to work. Applicant too upset to work and filed a claim. BROOKS, MICHAEL 2

3 1 "The parties utilized Ann E. Allen, M.D. as the agreed medical evaluator. Dr. Allen diagnosed applicant with Adjustment Disorder with Depressed 2 and Anxious Moods. With regard to whether the alleged psychiatric injury involved actual events of employment, Dr. Allen stated that the causative factors of the injury included: 1) an employee's grievance against applicant, 4 2) the Internal Affairs Investigation, and 3) applicant's belief that he was unsupported by his supervisors. Furthermore, Dr. Allen concluded that 5 there were no non-industrial factors. (Deposition of April 8, 2010 at pages 21-22)." (Opinion on Decision, 11/4/10, at pp. 1-2.) 6 7 Applicant filed an Application for Adjudication of Claim alleging industrial psychiatric S injury as a result of cumulative trauma through December 14, Defendant denied liability 9 asserting that applicant's claim was barred by Labor Code' section (good faith personmel 10.: action defense). At the May 19, 2009 trial, the parties framed the relevant issues to include 11 injury arising out of and in the course of employment (AOE/COE) and defendant's assertion of a 12 "good faith personnel action defense." 13 As pertinent here, the parties submitted Joint Exhibit 1, consisting of Dr. Allen's October 14, 29, 2008 AME report. In her report, Dr. Allen wrote: 15! "On one hand, the trier of fact may ultimately determine compensability of 16 this case. His employers contend that they have acted in good faith regarding the grievance filed by the individual Ron Parker. Yet, this is not 17, the perspective of [applicant]. 18 "At this point, there were no particular personnel acts such as being placed on a paid leave of absence or other circumstances that contributed 19ý substantially to the development of emotional difficulties. Thus, if his employer's actions are found to not be in good faith, then his psychiatric 2 0 claim would be compensable. 21 *, 22 "CAUSATION 23 "The facts of the case would indicate probability both medically and legally 24 that [applicant] sustained an Adjustment Disorder with depressed and anxious mood predominately due to work events from his employment at 2 5i[ Sacramento County. Lacking evidence of pre-existing psychiatric problems 261 to explain his recent emotional changes, his description of feeling 27 All further statutory references are to the Labor Code, unless otherwise noted. BROOKS, MICHAEL 3

4 1 undermined as a supervisor and unsupported by his superiors regarding an employee's grievance would be sufficient precipitants for the development 2 of emotional difficulties. He did seek psychiatric treatment and the records 3 from that intervention would support emotional problems in response to work events. 4 "For the most part, he appears to be a credible historian and is consistent in 5 relating his difficulties. Also, he was not overly dramatic or emotive, did not over-endorse psychopathology asked of him during the assessment and 6 was able to describe nuances and specifics. Lacking any evidence of concurrent personal stressors to explain his recent emotional changes, his claim would be compensable." (Dr. Allen's AME report, 10/29/08, at pp , Joint Exhibit 1.) 9 On August 4, 2009, the WCJ issued a decision finding industrial psychiatric injury and 1011 defendant sought reconsideration. We granted reconsideration on October 23, 2009, rescinded 1 the WCJ's decision, and returned this matter to the trial level for further development of the 12 record. Thereafter, a trial was held on September 14, 2009 at which time the parties submitted 13 additional evidence consisting of Dr. Allen's August 3, 2009 supplemental AME report (Joint 14. Exhibit 2) and April 8, 2010 deposition transcript (Joint Exhibit 3). I15ý In her August 9, 2009 report, Dr. Allen stated that: 16! "On Page 12 of the third paragraph of my original report, the sentence is 17 confusing as I was not indicating that there were no personnel acts. Instead, my opinion was that personnel acts of being placed on a paid leave of 18 absence and the criticisms pertaining [sic] his performance evaluation were not substantially related to the development of emotional difficulties. 19i "In terms of apportionment of causative factors, the employee's grievance 2 Q would contribute one-third to the development of psychiatric injury, the 2 investigation would contribute one-third to the development of psychiatric injury, and his feelings that he was unsupported by his supervisors would 22 contribute one-third to the development of psychiatric injury in this case. Hopefully, this clarifies any matters and determination of compensability 2 3i may ultimately be left to the trier of fact in this case." (Dr. Allen's 8/9/09 report, at p. 2, Joint Exhibit 2.) In her deposition, Dr. Allen testified substantially that the investigation by itself was not a 2 6k substantial cause (Dr. Allen's deposition transcript (depo) 4/8/10, at pp. 5:18-6:2; 35:5-13), that 27 when she used the word "grievance"' she meant the "complaint" filed by Parker (depo at p. 15:16- BROOKS, MICHAEL 4

5 1 20), that applicant had a set of feelings about the complaint separate from the investigation and 2 those caused an emotional response independent from other factors in case (depo at pp. 16: :3), and that applicant was aware of problems between himself and Parker before he had notice 4 of the investigation (depo at p. 17:7-16). 5 Dr. Allen testified specifically that: 6 "Q (question): Okay. But then - okay. So the un-support by a supervisor, 7 that has nothing to do with the directive or their meeting with him about the directive and his perceived lack of support by them at that time? 8 "A (Answer by Dr. Allen): No. I tried to separate it out. There are certain 9 personnel acts that happen. If those personnel acts had happened, and it hadn't happened with Ron Parker, somebody that already he was already 10 having trouble with and felt was undenmining his authority and was a result of the difficulty with that team, if the supervisors had acted in a different 1way in their attitude of conveying information about the complaint and 12' about the problems that he was having and how he - 13: "Q: What complaint are you talking about? 1 4 "A: From Ron Parker. 15 "Q: The one that led to the internal affairs or some other complaint? 1 6 "A: The complaint that led to the internal affairs investigation. 17 "Q: Okay. "A: So if those other circumstances were not operative, I don't think he 19! would have developed a psychiatric disorder as a result of a complaint. 20 That precipitated an internal affairs investigation. I don't think that it was just that in isolation that upset him. So I don't think you can - I think the 2 11ý 2211 other factors were just as important." (Depo at p. 31:14-18.) 2311 "Q: Okay. All right. So then, just going back to the un-support by 24 supervisors, that has to do with an that he sent? "A: Yeah. The he sent, the fact that they didn't acknowledge his efforts with the security response team and the fact that they didn't seem at 26 all empathetic about the effects on his ability to supervise, given that directive that he can no longer have any contact with Ron Parker. 27h BROOKS, MICHAEL 5

6 1 "Q: Okay. That last part is the concern that I am having, because that seemed to go more with the internal affairs, so basically the fallout of the 2 investigation or the implementation of the directive while the investigation 3i is going on? 4 "A: Well, no doubt it is all interrelated. I think that is what makes it hard for figuring out what are percent causations in these kinds of cases. 1'! 6 "Q: All right. And you would agree that but for the internal affairs investigation, which results in the directive, it is unlikely that he would "7 have had a psychiatric injury at that time? "MR. PENNEY: Object to the question on the grounds that it is - you are asking but for causation in a multi-factorial case and asked and answered. "THE DEPONENT: I don't know; however I can separate out because part 1 01 of the feelings of being unsupported by supervisors had to do with how he acted in telling him and responding to his concerns about the investigation "BY MS. TRIMM 12! 1311 "Q. Okay. 14[ "A. So if I turn it on its head the other way, you know, but for the problems with Ron Parker, the fact that he was the one who made the complaint, the 15 problems he was having with the response team, the feelings of not being acknowledged for his efforts and lack of response by his s, you know, 16 that the investigation alone would not have caused a psychiatric disorder. I 177 couldn't say with any degree of certainty that it would have." (Depo at pp. 33:22-35:13.) 19" "A (by Dr. Allen): So, you know, we are getting - we are just kind of bantering back and forth about hypotheticals because I don't think you can I don't think you can base this solely on a temporal consequence and I don't 1 think you can parcel out the factors in isolation." (Depo at p. 38:2-7.) 22i Section provides, in pertinent part, that: 2 45:1 "(b) (1) In order to establish that a psychiatric injury is compensable, 2 5: an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes 26 combined of the psychiatric injury. 2 7MICHAEL16 BROOKS, MICHAEL 6

7 1 "(3) For the purposes of this section, 'substantial cause' means at least 35 to 40 percent of the causation from all sources combined "(h) No compensation under this division shall be paid by an employer for a psychiatric injury if the injury was substantially caused by 5 a lawful, nondiscriminatory, good faith personnel action. The burden of 6 proof shall rest with the party asserting the issue." (Lab. Code, ) 7 In our en banc decision in Rolda x'. Pitney Bowles (2001) 66 Cal. Comp. Cases , (Appeals Board en bane), we outlined a multilevel analysis to be used when a psychiatric iniurv is alleged and the defense of a lawful, nondiscriminatory, good faith personnel action has been raised: 11 "The WCJ, after considering all the medical evidence, and the other 12' documentary and testimonial evidence of record, must determine: 13 "(1) whether the alleged psychiatric injury involves actual events of 14 employment, a factual/legal determination; "(2) if so, whether such actual events were the predominant cause of the 15 ipsychiatric injury, a determination which requires medical evidence; 161 "(3) if so, whether any of the actual employment events were personnel 17ý 18' actions that were lawful, nondiscriminatory and in good faith, a factual/legal determination; and "(4) if so, whether the lawful, nondiscriminatory, good faith personnel 19 actions were a "substantial cause" of the psychiatric injury, a 2determination which requires medical evidence "Of course, the WCJ must then articulate the basis for his or her findings 221 in a decision which addresses all the relevant issues raised by the criteria set forth in Labor Code section " (Rolda, supra, 66 Cal. Comp. Cases at. pp ) 231 Thus, it was applicant's burden to prove, by a preponderance of the evidence, that his injury was predominately caused by actual events of employment. (Lab. Code, ) hi this regard, applicant met his burden. In her October 29, 2008 AME report, Dr. Allen opined that 26 "lacking evidence of pre-existing psychiatric problems," his injury was, "predominately due to 27 BROOKS, MICHAEL 7

8 1 work events from his employment at Sacramento County." There is no contrary evidence in the 2 record nor does defendant dispute that actual events of employment predominately caused 3 applicant's psychiatric injury. 4 Next, because defendant raised an affirmative defense, defendant bears the burden of 5 proving that applicant's injury was substantially (meaning at least 35% percent) caused by a 6 lawful, nondiscriminatory, good faith personnel action. (Lab. Code, , 5705.) 7 First, we must determine which actual events of employment were personnel actions, if 8 any. (Larch v. Contra Costa County (1998) 63 Cal.Comp.Cases 831 [Significant panel 9 decision].) In her reports and deposition, Dr. Allen attributed causation of applicant's psychiatric 1.0 injury one-third to the filing of Parker's grievance against applicant, one-third to the resulting Iii 12i internal investigation against applicant, and one-third to applicant's feelings that he was unsupported by his supervisors. 13, In its Petition for Reconsideration, defendant asserted that the grievance filed by Parker 141 against applicant and the resulting internal investigation of applicant are lawful, 15 nondiscriminatory good faith, personnel actions which consist of 66% of causation. We disagree. 1 6 A "personnel action" depends on the subject matter and factual setting for each case. A 17 personnel action is "conduct attributable to management in managing its business including such 1811 things as done by one in authority to review, criticize, demote, transfer or discipline an employee 19i in good faith." The term personnel action is not intended to cover all actions by any level of 20 personnel in the employment situation or all happenings in the workplace done in good faith. 21 This would be too broad an interpretation that would preclude from consideration practically all 22 events occun'ing such as work loads imposed in good faith. A personnel action does not 23 include an action by one employee against a fellow employee of equal or less status in the 24i employment setting unless management authorized that conduct as an extension of its authority. 2 5 It is an action attributable to management, or an action of one who has the authority to evaluate, 26 criticize or correct the activity of the employee. To summarize, a personnel action is conduct 27; either by or attributable to management including such things as done by one who has the BROOKS, MICHAEL 8

9 1 authority to review, criticize, demote, or discipline an employee. It is not necessary for the 2 personnel action to have a direct or immediate effect on the employment status. Personnel actions 3 may include but are not necessarily limited to transfers, demotions, layoffs, performance 4 evaluations, and disciplinary actions such as warnings, suspensions, and terminations of 5 employment. (Larch v. Contra Costa County (1998) 63 Cal.Comp.Cases 831, 884 [Significant 6 Panel Decision].) 7 Based on this definition, we agree that the internal investigation against applicant is a lawful, nondiscriminatory, good faith personnel action. It was instituted by his superiors who 9 had the authority to review, criticize, demote, and/or discipline applicant. However, based oni Dr. 1 Allen's opinion, the investigation, by itself, only accounts for one-third (33.3%) of the causation!1 of applicant's injury. 12 Moreover, we disagree that the grievance filed by Parker against applicant meets the 1311 definition "personnel action." Parker was subordinate to applicant. Therefore, the grievance that 141 he filed against applicant can nol be attributable to management or someone in authority. 15 While defendant argues that some aspects of Parker's grievance and some aspects of his 16I feelings of being unsupported by his supervisors cannot be separated from the internal 171 investigation and that these combine to meet the 35% threshold for substantial cause, this 181 argument is not supported by the record. Furthermore, the issue of whether lawful, 191 nondiscriminatory, good faith personnel actions are a substantial cause of a psychiatric injury 2 0 requires medical evidence. (Rolda, supra, 66 Cal. Comp. Cases at p. 247.) 21; In her August 9, 2009 report, Dr. Allen stated, "personnel acts of being placed on a paid 22 leave of absence and the criticisms pertaining [sic] his performance evaluation were not 2 3 substantially related to the development of emotional difficulties." In her deposition, Dr. Allen 24 testified that the investigation by itself was not a substantial cause (depo at pp. 5:18-6:2; 35: ), that she could not say that the investigation alone would not have caused a psychiatric 2 disorder (depo at pp. 33:22-35:13), and, essentially, that she could not parcel out the factors of causation more than she already had (depo at p. 33:22-35:13, 38:2-7). Therefore, we are 27 B S H BROOKS, MICHAEL 9

10 persuaded that defendant failed to meet its burden of proving that lawful, nondiscriminatory, 2 good faith personnel actions were a substantial cause of applicant's injury. 3 With regard to defendant's second contention, we are persuaded that the WCJ implicitly 4 '1 found applicant to be a credible witness. This is corroborated by Dr. Allen who also found 5 applicant to be credible. We accord great weight to that implicit finding because the WCJ had 6 the opportunity to observe the witness' demeanor and to weigh his statements in connection with '7 his manrner on the stand. (Garza v. Workmen's Comp. Appeals. Bd. (1970) 3 Cal.3d [35 Cal.Comp.Cases 500].) 9 Accordingly, based on the reasons discussed above, we will affirm the WCJ's decision. 10 // 12 /// 131 // 14,! /I 15! /// 16, tl 17 18! IItt 19 7f 20!, 2 1 I 22.! If 23 / 24, 25 i III BROOKS, MICHAEL 10

11 1 For the foregoing reasons, 2 IT IS ORDERED that the November 4, 2010 Findings and Award be, and the same 3 hereby is AFFIRMED. 41 WORKERS' COMPENSATION APPEALS BOARD 6 7 FRANK M. BRASS 8 1 CONCUR, 9 12 ýx.onnie G. CAPLANE i J DATED AND FILED IN SAN FRANCISCO, CALIFORNIA 20 FEB 15 Z SERVICE MADE BY MAIL ON ABOVE DATE OAN THE PERSONS LISTED BELOW AT 22I THEIR ADDRESSES AS SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD: 231) HANNA, BROPHY, MacLEAN, McALEER & JENSEN, LLP 24 TWEEDY, PENNEY & COMPANY MICHAEL BROOKS PAG/csl 26d 27.1 BROOKS, MICHAEL 11

12 1 DISSENTING OPINION 2 I dissent. I would amend the WCJ's decision to defer the issue of whether applicant's 3 injury was substantially caused by lawful, non-discriminatory, good faith personnel actions and 4 return this matter to the trial level for further proceedings to develop the record on this issue. I 5 am not persuaded that Dr. Allen's opinion is substantial evidence. 6 1 Awards, orders, and decisions of a WCJ must be supported by substantial evidence. 7 (Lab. Code, 5952(d); Lamb v. Workers' Comp. Appeals Bd. (1974) 11 Cal.3d 274, [39 Cal.Comp.Cases 310].) The term "substantial evidence" means evidence which, if true, has 9Iýi probative force on the issues. It is more than a mere scintilla, and means such relevant evidence 10 as a reasonable mind might accept as adequate to support a conclusion... It must be reasonable 11 in nature, credible, and of solid value. (Braewood Convalescent Hospital v. Workers' Comp. 12 Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164 [48 Cal.Comp.Cases 566].) Medical opinion 1311 also fails to support the Board's findings if it is based on surmise, speculation, conjecture, or 14, guess. (Hegglin v. Worker's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases S 93].) A medical report is not substantial evidence unless it sets forth the reasoning behind the 161 physician's opinion, not merely his or her conclusions. (Granado v. Workers' Comp. Appeals 171 Bd. (1970) 69 Cal. 2d 399, 407 (a mere legal conclusion does not furnish a basis for a finding); 1_8ýý see also People v. Bassett (1968) 69 Cal.2d 122, 141, 144 (the chief value of an expert's 19 testimony rests upon the material from which his or her opinion is fashioned and the reasoning by 2 0 v which he or she progresses from the material to the conclusion, and it does not lie in the mere 21 i expression of the conclusion; thus, the opinion of an expert is no better than the reasons upon 22!' which it is based).) 23' Dr. Allen's opinion contains several inconsistent and unintelligible statements. For 24ý example, in her October 29, 2008 report, she stated that, "[a]t this point, there were no particular 25 personnel acts such as being placed on a paid leave of absence or other circumstances that 26. contributed substantially to the development of emotional difficulties." (Dr. Allen's AME report, 27 10/29/08, at p. 12, Joint Exhibit 1.) She attempted to clarify that statement by stating, "that BROOKS, MICHAEL 12

13 I personnel acts of being placed on a paid leave of absence and the criticisms pertaining [sic] his 2 performance evaluation were not substantially related to the development of emotional 3 difficulties." A statement, I find equally confusing. Moreover, her deposition testimony was 4 equally inconsistent and confusion. After opining that causation was divided one-third to the 5 grievance, one-third to the investigation, and one-third to applicant's feelings of being 6 unsupported, Dr. Allen admitted that all events were interrelated making it difficult to apportion 7 causation and that some of his feelings of being unsupported by his supervisors were related to 8 the investigation. This inconsistency makes her report unsubstantial. 9 If parties fail to submit substantial medical evidence on a relevant issue, the Workers' 101 Compensation Appeals Board may reopen the record and develop it further to allow for a 11i complete adjudication. (Lab. Code, 5502 subd. (e)(3), 5701 & 5906; Marsh v. Workers' 121 Comp. Appeals Bd. (2005) 130 Cal.App.4th 906, 916, fn. 7 [70 Cal.Comp.Cases 787]; San 131" Bernardino Community Hospital v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 14h Cal.App.4th 928, 935 [64 Cal.Comp.Cases 986]; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 _515 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924].) 16 II/ , , 22!// 23- h 24i// 25! ! BROOKS, MICHAEL 13

14 Accordingly, I would amend the WCJ's decision to defer the issue of lawful, non- 2 discriminatory, personnel action, and return this matter to the trial level for further development 3 of the record, 4 WORKERS' COWPENSATION APPEALS BOARD ALFOýN(S DATED AND FILED IN SAN FRANCISCO, CALIFORNIA 11) FEB I SERVICE MADE BY MAIL ON ABOVE DATE ON THE PERSONS LISTED BELOW AT 12, THEIR ADDRESSES AS SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD: 13, 141 HANNA, BROPHY, MacLEAN, McALEER & JENSEN, LLP TWEEDY, PENNEY & COMPANY 15 MICHAEL BROOKS PAG/csl ( 22: 23ý BROOKS, MICHAEL 14