Stockman vs. State of California, Department of Corrections
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1 WORKERS' COMPENSATION APPEALS BOARD 2 STATE OF CALIFORNIA 3 4 DONALD STOCKMAN, Case Nos. 5 Applicant, 6 7 8 BAK 123730 BAK 123079 BAK 123080 vs. STATE OF CALIFORNIA, DEPARTMENT OF CORRECTIONS, legally uninsured, 9 OPINION AND DECISION AFTER RECONSIDERATION Defendant. 10 11 These cases involve a question arising under Labor Code section 12 3208.3, subdivision (h), which bars compensation for a psychiatric 13 injury that is substantially caused by lawful, nondiscriminatory, 14 good faith personnel action. 15 study the factual and legal issues presented. 16 study, we conclude that the workers' compensation referee ("WCR") 17 correctly found that no compensation is payable because applicant's 18 claimed psychiatric injury was substantially caused by a lawful, 19 nondiscriminatory, good faith personnel action. 20 21 We granted reconsideration to further Having completed our BACKGROUND Applicant was hired by the State of California, Department of 22 Corrections, in December of 1991. 23 to Wasco State Prison as an associate warden in charge of business 24 services. 25 opposing factions at the prison: 26 were on one side, and applicant and Chief Deputy Warden Pena, and 27 their supporters, were on the other. In July of 1995, he was assigned Thereafter, a conflict developed which resulted in two Warden Carrillo and his supporters Applicant assisted Pena in 1 preparing a memorandum which referred to Carrillo's "bazaar (sic) 2 vindictive management practices" and described Carrillo's behavior 3 as "irrational, unprofessional and irresponsible." 4 was concerned because he interpreted a statement by Warden Carrillo 5 as a death threat after he reported the warden's conduct to his 6 superiors in the Department of Corrections. 7 complaints included upset stomach, diarrhea, disturbed sleep, and 8 impaired sexual function and interest. 9 Also, applicant Applicant's physical On May 19, 1997, applicant was notified that he was being 10 involuntarily transferred to Corcoran State Prison, approximately 47 11 miles from the Wasco prison, effective immediately. 12 Warden Pena also was transferred to a facility at Corcoran and 13 Warden Carrillo was forced to retire. Chief Deputy 14 Applicant filed three applications for adjudication, alleging 15 specific injuries to the psyche on March 4, 1996, and May 19, 1997, 16 and cumulative injury to the psyche from December 1991 through May 17 19, 1997. 18 lawful, non-discriminatory, good faith personnel action and that it 19 was a substantial cause of applicant's psychiatric injury. 20 these findings, the WCR concluded that compensation was barred by 21 section 3208.3, subdivision (h). The WCR found that the transfer to Corcoran prison was a Based on 22 In his petition for reconsideration, applicant asserts (1) that 23 his psychiatric injury was the result of cumulative trauma, (2) that 24 the transfer to Corcoran State Prison on May 19, 1997, was not a 25 substantial cause of his psychiatric disability, and (3) that the 26 transfer from Wasco to Corcoran was not a lawful, nondiscriminatory, 27 good faith personnel action. STOCKMAN, DONALD - 2 - 1 DISCUSSION 2 Labor Code section 3208.3 was enacted as part of the Margolin- 3 Bill Greene Workers’ Compensation Reform Act of 1989 (Stats. 1989, 4 ch. 892, § 25) which brought about extensive changes in the workers’ 5 compensation system. 6 of the Legislature in enacting this section to establish a new and 7 higher threshold of compensability for psychiatric injury under this 8 division.” 9 satisfied in order to establish that applicant has sustained a 10 compensable psychiatric injury. 11 the present matter will be individually discussed in the following 12 sections. The statute specifies that "[i]t is the intent All of the elements set forth in section 3208.3 must be Those elements in controversy in 13 Psychiatric Injury 14 Section 3208.3, subdivision (a), states: 15 16 17 18 19 20 21 "A psychiatric injury shall be compensable if it is a mental disorder which causes disability or need for medical treatment, and it is diagnosed pursuant to procedures promulgated under paragraph (4) of subdivision (j) of Section 139.2 or, until these procedures are promulgated, it is diagnosed using the terminology and criteria of the American Psychiatric Associations’ Diagnostic and Statistical Manual of Mental Disorders, Third Edition-Revised, or the terminology and diagnostic criteria of other psychiatric diagnostic manuals generally approved and accepted nationally by practitioners in the field of psychiatric medicine." 22 23 24 25 26 Section 3208.3, subdivision (b)(1), states: "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." 27 STOCKMAN, DONALD - 3 - 1 Dr. Donlon, Dr. Perelli-Minetti and Dr. Enelow each diagnosed 2 applicant pursuant to standard psychiatric terminology and criteria 3 as having a mental disorder which caused disability and the need for 4 treatment. 5 psychiatric injury. 6 Donlon. 7 that "with reasonable medical probability, there is no evidence for 8 disability until 05-19-97 when he was reassigned to Corcoran," and 9 that "[f]rom information available, personnel action of 05-19-97 is 10 the predominant causation for his mental disorder/disability." 11 his report dated August 15, 1997, Dr. Donlon opined that applicant 12 "did not develop a cumulative mental injury to his psyche for the 13 period of 12/91 through 05-19-97," but "05-19-97 may be considered a 14 specific mental injury." The primary medical dispute concerned the cause of this The WCR relied primarily on the opinion of Dr. In his report dated June 30, 1997, Dr. Donlon concluded In 15 In his petition for reconsideration, applicant contends that 16 "Dr Donlon's report should not be considered substantial evidence as 17 he does not accurately analyze the history," and that "Dr. Enelow's 18 report is a much better evaluation of the history." 19 report on the petition, the WCR, who had the opportunity to hear all 20 of the lay testimony and consider the complete documentary record, 21 reaffirmed her reliance on Dr. Donlon and observed that "without 22 question, the personnel action of May 19, 1997 constituted the cause 23 for applicant's leaving work, refusing to report as instructed to 24 Corcoran, and for first seeking medical treatment." 25 the entire record and affording the WCR's findings the great weight 26 to which they are entitled, we find no valid reason to reject the 27 WCR's determination. STOCKMAN, DONALD - 4 - However, in her After review of 1 Personnel action 2 Section 3208.3, subdivision (h), was added in 1993 and provides 3 as follows: 4 "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." 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 The term "personnel action" is not defined in the Labor Code.1 What constitutes a personnel action depends on the subject matter and factual setting for each case. The term includes but is not necessarily limited to termination of employment. (Bray v. Workers’ Comp. Appeals Bd. (1994) 26 Cal.App.4th 530 [59 Cal.Comp.Cases 475, 484].) An employer’s disciplinary actions short of termination may be considered personnel actions even if they are harsh and if the actions were not so clearly out of proportion to the employee’s deficiencies so that no reasonable manager could have imposed such discipline. (Cf. Clutts v. Workers’ Comp. Appeals Bd. (1997) 62 Cal.Comp.Cases 1142, 1143 (writ den.).) In Clutts, the applicant had alleged psychiatric injury as a result of letters written to him by his employer warning of disciplinary action for his failure to perform certain job duties. We conclude that a personnel action is conduct either by or attributable to management and includes such things as done by one who has the authority to review, criticize, demote or discipline an 1 When Labor Code section 3208.3, subdivision (d), was added in 1991, it stated in part: "As used in this subdivision, a 'regular and routine employment event' includes, but is not limited to, a lawful, nondiscriminatory, good faith personnel action, such as discipline, work evaluation, transfer, demotion, layoff, or termination." This language was deleted from subdivision (d) and replaced by subdivision (h) when the latter subdivision was added in 1993. STOCKMAN, DONALD - 5 - 1 employee. 2 limited to transfers, demotions, layoffs, performance evaluations, 3 and disciplinary actions such as warnings, suspensions, and termina- 4 tions of employment. Personnel actions may include but are not necessarily 5 Based on this analysis, we conclude that the transfer of 6 applicant to Corcoran State Prison on May 19, 1997, was a personnel 7 action within the meaning of Labor Code section 3208.3, subdivision 8 (h). 9 Lawful 10 Having concluded that applicant's transfer was a personnel 11 action, we must determine whether that action was lawful, nondis- 12 criminatory, and in good faith. 13 met in order for section 3208.3, subdivision (h), to bar payment of 14 compensation. Each of these requirements must be 15 Black’s Law Dictionary (6th ed. 1990) pp. 885-886, defines the 16 term "lawful" as “warranted or authorized by the law; having the 17 qualifications prescribed by law; not contrary to nor forbidden by 18 the law; not illegal.” 19 To say that an act is legal “implies that it is done or performed in 20 accordance with the forms and usages of law, or in a technical 21 manner.” 22 authorized, sanctioned, or at any rate not forbidden, by law.” 23 word “more clearly implies an ethical content” and “usually imports 24 a moral substance or ethical permissibility.” It generally differs from the term “legal.” “To say of an act that it is ‘lawful’ implies that it is The 25 Applicant contends that his transfer was unlawful, arguing that 26 the Department of Corrections violated state civil service rules 27 covering transfers. STOCKMAN, DONALD Specifically, he asserts that the Department - 6 - 1 violated Government Code section 19994.1 because he was not given 60 2 days' notice of his transfer. 3 60 days notice of a transfer which ". . . reasonably requires an 4 employee to change his or her place of residence . . ." 5 case, applicant was transferred to a facility approximately 47 miles 6 from his prior work site and the record indicates that he did not 7 move his residence after his transfer. 8 not establish that the Department was required to give him 60 days' 9 notice before transferring him. 10 not violate section 599.714 of Title 2 of the California Code of 11 Regulations. 12 a transferred employee is entitled to reimbursement of moving 13 expenses, not the legality of or procedures for transferring an 14 employee. However, that section only requires In this Therefore, the record does Likewise, applicant's transfer did That section deals with the circumstances under which Thus, we conclude that applicant's transfer was lawful. 15 Nondiscriminatory 16 Black’s Law Dictionary (6th ed. 1990) p. 467, defines the term 17 "discrimination" as a "failure to treat all persons equally where no 18 reasonable distinction can be found between those favored and those 19 not favored.” 20 treated applicant differently than others similarly situated without 21 justification. Thus, the issue in this matter is whether the employer 22 Applicant contends that in order for his transfer to be nondis- 23 criminatory, there must be a "business necessity" for the employer's 24 conduct. 25 concern issues arising under Labor Code section 132a which prohibits 26 discrimination against an employee for filing, or making known his 27 or her intention to file, a workers' compensation claim. The cases he cites in support of this contention primarily STOCKMAN, DONALD - 7 - However, 1 section 132a involves a public policy intended to protect against 2 discrimination proscribed by that section, while personnel actions 3 under section 3208.3, subdivision (h), include a variety of possible 4 actions by employers before an injury has even occurred. 5 to incorporate the same requirement of business necessity as applied 6 in the context of section 132a. We decline 7 As stated, the issue is whether the employer treated applicant 8 differently than others similarly situated, without justification. 9 In this case, the record reflects that there was a split among the 10 upper management at the prison with Warden Carrillo on one side, and 11 applicant and Chief Deputy Warden Pena on the other. 12 removed from the prison either by transfer or forced retirement. 13 Therefore, applicant was not treated differently than the other 14 similarly-situated employees, so his transfer was nondiscriminatory. All three were 15 Good faith 16 Section 3208.3, subdivision (h), does not define the term "good 17 faith" as used therein. 18 definitions of the term in broader contexts. 19 defined to mean “honesty in fact in the conduct or transaction 20 concerned” (see, e.g., Civ. Code §§ 2961, 1102.7; Cal. Com. Code, §§ 21 1201, subd. (19), 2103, subd. (1) (b), 5102); to include “honesty in 22 fact” and the “observance of reasonable commercial standards of fair 23 dealing” (see, e.g., Cal. Com. Code, § 3103, 11105); to include an 24 act without intent to defraud (see, e.g., Ins. Code § 11772); to mean 25 to 26 knowledge of fraud, and without intent to assist in fraudulent or 27 otherwise unlawful design (Appel v. Morford (1943) 62 Cal.App.2d 36, act with honesty STOCKMAN, DONALD Therefore, it is necessary to consider the of purpose, - 8 - without "Good faith" has been collusion, fraud, or 1 40; to include a “state of mind denoting honesty of purpose, freedom 2 from intention to defraud, and, generally speaking, [] being faithful 3 to one’s duty or obligation” (People v. Nunn (1956) 46 Cal.2d 460, 4 468); to mean “honestly; without fraud, collusion or deceit; really, 5 actually, without pretense,” and “an intention based on a valid or 6 good reason or cause” (Gibson v. Corbett (1948) 87 Cal. App. 2d Supp. 7 926, 8 intention to abstain from taking any unconscientous advantage of 9 another. (Blacks’ Law Dictionary (6th ed. 1990) p. 693.) 10 faith element therefore encompasses the manner in which the personnel 11 action is taken. 929); and to include honesty of intention and an honest The good 12 This year, in Cotran v. Rollins Hudig Hall International (1998) 13 17 Cal.4th 93, the state Supreme Court considered the standard for 14 determining whether just cause supported termination of an employee. 15 In that case, the court ruled that an objective good faith standard 16 should be applied. 17 "[a]lthough 'good faith' is commonly thought of as subjective in 18 essence, the use of objectified mental states as a legal standard is 19 a familiar feature of Anglo-American law." 20 "coupling 'good faith' with 'objectivity' is intended to place the 21 trier of fact in the position of the 'reasonable employer' in 22 deciding 23 conformity with prevailing social norms in deciding to terminate an 24 employee for misconduct." 25 whether At 17 Cal.4th 106, fn. 3, the court stated that the defendant ... The court concluded that acted responsibly and in We conclude that "good faith" under section 3208.3, subdivision 26 (h), should be determined under a similar objective standard. 27 this case, the evidence indicates that that standard has been met. STOCKMAN, DONALD - 9 - In 1 Deputy Director Tristan testified that applicant and Chief Deputy 2 Warden Pena were both transferred in order to give the new warden a 3 fresh start. 4 Regional administrator Jones testified that applicant was caught in 5 a bad management situation. 6 applicant's transfer was not a punitive action. 7 testimony of Tristan and Jones to be credible and, because she had 8 the opportunity to observe the witnesses, her credibility determi- 9 nations are entitled to great weight. 10 Appeals Bd. (1970) 3 Cal.3d 312, [35 Cal.Comp.Cases 500].) 11 find the testimony of Tristan and Jones to be credible, and that 12 testimony establishes an honesty of intention on the part of the 13 Department of Corrections in its transfer of applicant. He also testified that applicant was a good employee. Both Tristan and Jones testified that The WCR found the (Garza v. Workmens' Comp. We also 14 Substantial causation 15 Having concluded that applicant's transfer to Corcoran was a 16 lawful, nondiscriminatory, good faith personnel action, we finally 17 must determine whether the transfer was a "substantial cause" of his 18 psychiatric condition. 19 that the term "'substantial cause' means at least 35 to 40 percent 20 of the causation from all sources combined." 21 one factor may be a substantial cause and that the question here is 22 whether applicant's transfer was a substantial cause, and not the 23 substantial cause. 24 question. 25 applicant would have continued to work without any psychiatric 26 injury, 27 complaints to events prior to his transfer. Section 3208.3, subdivision (a)(3), provides We note that more than There is conflicting medical evidence on this Dr. Donlon opined that in the absence of his transfer, while Dr. STOCKMAN, DONALD Enelow attributed - 10 - applicant's psychiatric As noted, the WCR found 1 the opinion of Dr. Donlon to be the more persuasive. 2 asserts that Dr. Donlon did not accurately analyze the history, but 3 points to no particular errors in Dr. Donlon's report. 4 Dr. Enelow incorrectly concluded that applicant's transfer was a 5 punitive action by the Department of Corrections. 6 that there was no evidence that applicant missed work or sought 7 psychiatric treatment prior to being notified of his transfer on May 8 19, 1997. 9 Applicant In addition, Moreover, we note Considering the entire record, we agree with the WCR that the 10 opinion of Dr. Donlon is the more persuasive and find that the 11 preponderance of the evidence establishes that applicant's transfer 12 to Corcoran State Prison was a substantial cause of his psychiatric 13 complaints. 14 caused by a lawful, nondiscriminatory, good faith personnel action, 15 compensation for applicant's claimed psychiatric injuries is barred 16 by Labor Code section 3208.3, subdivision (h). 17 affirm the decision of the WCR. 18 Because these psychiatric complaints were substantially Therefore, we will For the foregoing reasons, as decision after reconsideration of 19 the Workers' Compensation Appeals Board, 20 ///// 21 ///// 22 ///// 23 ///// 24 ///// 25 ///// 26 ///// 27 ///// STOCKMAN, DONALD - 11 - 1 2 IT IS ORDERED that the Findings and Order dated March 4, 1998, be, and the same is hereby, AFFIRMED. 3 WORKERS' COMPENSATION APPEALS BOARD 4 5 /s/ J. Wiegand J. WIEGAND 6 7 I CONCUR, 8 9 /s/ Douglas M. Moore, Jr. D. MOORE 10 11 12 /s/ Arlene N. Heath A. HEATH 13 DATED AND FILED IN SAN FRANCISCO, CALIFORNIA 14 7/24/98 15 SERVICE BY MAIL ON SAID DATE TO ALL PARTIES LISTED ON THE OFFICIAL ADDRESS RECORD 16 17 18 19 20 21 22 23 24 25 26 27 STOCKMAN, DONALD - 12 -
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