Rolda: A Stress Claim, a Personnel Defense and the Order a Judge Must Follow

Work wore you down. A supervisor rode you, a coworker undercut you, and then the company made a decision about your job that you still think was unfair. You file a claim for psychiatric injury. The employer answers with a statute: A psychiatric injury is not compensable if a lawful, nondiscriminatory, good faith personnel action substantially caused it.

A job decision can be part of a psychiatric injury without defeating the claim. Rolda v. Pitney Bowes, Inc., No. VNO 359401 (WCAB en banc Feb. 21, 2001), reported at 66 Cal.Comp.Cases 241, set the order in which a judge must work through the question. The full Board decided the case to secure uniform decisions in the future. The judge decides what happened and whether a personnel action was lawful, nondiscriminatory and in good faith. Doctors supply the percentages. In Rick Rolda’s case neither the judge nor the doctors had done it that way, so the Board set aside his award and sent the case back. Whether his psychiatric injury was compensable remained for the judge to determine on remand.

A sales job, a leave and a reassigned territory

Rolda sold business machines for Pitney Bowes in an assigned territory. He was unhappy with how his supervisor, James Brown, handled disputes with other salesmen over territory and clients. Brown did not consider his performance fully satisfactory. According to Rolda, Brown recommended in 1997 that he consider resigning. Another supervisor apparently told him the job might not be for him. Rolda filed orthopedic and psychiatric claims through September 17, 1997, and the main basis of the psychiatric claim was that supervisors had discriminated against and harassed him.

In October 1997 he left on a vacation and leave of absence in the Philippines, where a relative was dying of cancer. A November letter approved an extension but warned there was “no guarantee of re-employment” and that his territory would “be filled.” Rolda testified he did not recall anyone seeing that letter or telling him about it. When he returned in December the territory had been reassigned. By then he had already filed his claim. He turned down other territories at least a two-hour drive from home and never went back.

Two doctors and a short ruling

Dr. Brian Jacks, to whom defense counsel referred him, wrote that the difficulties “seem to be due to routine personnel actions or lawful non-discriminatory personnel actions,” and that the predominant cause of his emotional difficulty was nonindustrial. He noted he had no personnel records or sworn statements from the workplace, and he also pointed to job loss, money problems and two deaths in the family. Dr. Thomas Curtis, to whom his own attorney referred him, described “humiliation, mistreatment and discrimination” against Rolda as a foreign-born Filipino man and concluded he had an industrial psychiatric injury, assuming Rolda’s account was accurate. Neither fundamentally changed his opinion in later reports.

The witnesses disagreed about whether Brown ever suggested resigning. The judge relied on Dr. Curtis and on Rolda’s testimony and found industrial injury. On the defense, the judge’s opinion said only that the injury “was not the result of a good faith personnel action.” Pitney Bowes asked the Board to reconsider. Responding to that petition, the judge wrote that taking the territory did appear to be a good faith personnel action, because Rolda had overstayed his approved vacation time and management found it necessary to reassign the territory. But it was “only one of the many factors,” the judge said, and the conclusion stood even if that decision were excluded.

Why the employer can raise a personnel defense

Labor Code section 3208.3 sets two separate tests. Under subdivision (b), as it read in this case, a worker must show that actual events of employment were predominant as to all causes combined of the psychiatric injury, which the Board, following the Court of Appeal, read to mean more than half of all causes. Victims of a violent act need show only that work events were a substantial cause. Rolda’s case involved no violent act.

Subdivision (h) is a defense. No compensation is paid if the injury “was substantially caused by a lawful, nondiscriminatory, good faith personnel action.” Substantial cause means at least 35 to 40 percent of the causation from all sources combined. The party asserting the defense has the burden of proof. So a worker can clear the first test and still lose on the second.

The four questions, in order

The Board’s contribution is the sequence. The judge must determine:

1. Whether the alleged psychiatric injury involves actual events of employment. This is for the judge, as a question of fact and law.
2. If so, whether those events were the predominant cause of the injury. This requires medical evidence.
3. If so, whether any of the events were personnel actions that were lawful, nondiscriminatory and in good faith. This is again for the judge.
4. If so, whether those personnel actions were a substantial cause of the injury, 35 to 40 percent. This requires medical evidence.

If the answer to question 1 or 2 is no, the claim fails. If the answer to question 3 or 4 is no, the defense fails. If the answer to all four is yes, no compensation is paid.

The Board made questions 1 and 3 the judge’s. In our reading, Dr. Jacks’s phrase “lawful non-discriminatory personnel actions,” from a doctor who said he lacked personnel records, could not settle them. The Board pointed to its own earlier decisions and to cases in which a higher court declined review for guidance. As it summarized them, memos criticizing job performance without discipline or threats were not personnel actions, discipline contrary to an employer’s policy manual was not good faith, and supervision by harassment and ridicule was not good faith.

What the doctors have to say

The analysis puts a specific job on the doctors evaluating the claim. They must take a history of all events alleged to have contributed to the injury and give an opinion on whether employment events were a predominant cause. Where the employer claims a good faith personnel action, as Pitney Bowes did, they must also give the percentage of causation for any such alleged or apparent action.

The Board found that the decision, the report and the medical evidence all fell short of the required analysis. Our reading of the record it describes: The judge’s rulings did not separate which alleged events happened and which were qualifying personnel actions, and the opinion and later report treated the territory decision differently. In the passages the Board quotes, neither doctor gives a percentage for any personnel action. Because Pitney Bowes raised the defense, the doctors had to give a percentage for any alleged or apparent personnel action, so the judge would have a number for whichever actions were found to qualify. Saying the conclusion survives without the reassignment does not show what share of all causes the reassignment was. Subdivision (h) asks that question.

Why the case went back

Neither the judge’s decision, the judge’s report nor the medical evidence, the Board held, complied with the required analysis. It canceled the award and returned the case for gathering more evidence as appropriate and a decision consistent with the opinion. Under the test, every judge must explain the basis for the findings on each statutory issue. On remand, the judge had to resolve the disputed events, evaluate the medical evidence and make the findings required by that sequence.

If a personnel decision is part of your stress claim

These steps are our practical reading of Rolda.

• List every event, with dates and witnesses. The judge starts by deciding what actually happened. In Rolda, the testimony conflicted on whether a supervisor suggested resigning.
• Separate personnel actions from other conduct. Criticism, ridicule and harassment may not be personnel actions at all, or may not be in good faith. Keep them distinct from a reassignment or a warning.
• Get the doctor to give percentages. Ask for the total share caused by work events and the share caused by each claimed personnel action. Know that a high percentage for a qualifying personnel action can establish the employer’s defense.
• Remember who has the burden. You must prove that work events were the predominant cause. The employer, when it raises this defense, must prove the defense.
• Keep the paper from the leave or the reassignment. An employer letter about Rolda’s leave, which he testified he did not recall seeing, became part of the record.

For representation in a psychiatric injury claim, see our California workers’ compensation practice.