Week of Feb 3, 2014
While SB 899 purportedly aims to reduce the number of compensable consequence cases that relate to psyche, such claims will hardly disappear altogether. The exceptions provided under the new law and straight psychaitric claims will no doubt still fill the docket.
In these cases, Claims and defendants in general often have to grapple with "what is a personnel action?" A good faith personnel action if it rises to substantial cause (35 - 40%) could defeat a psychiatric claim even if aoe/coe is found. Of course, the applicant has the burden of proof to show that of all causes actual events of employment are predominant. However, when it comes defining actual events of employment such events could be personnel actions themselves.
In County of Sacramento v. WCAB (Brooks) 2013 Cal. App. LEXIS 348); 78 Cal. Comp. Cases 379 the Third District Court of Appeal held that the AME had no authority to decide what was or was not a personnel action under Labor Code § 3208.3(h), and WCAB erred by impliedly accepting AME’s opinion of what constituted a personnel action rather than examining the record for evidence about what caused the employee’s feelings.
In a somewhat unprecedented move, the Court provided a framework of what a personnel action may look like.
“A personnel action has been defined as conduct attributable to management in managing its business, including such things as reviewing, criticizing, demoting, transferring, or disciplining an employee. (Larch v. Contra Costa County (1998) 63 Cal.Comp.Cases 831, 833-839; Stockman v. State of California/Department of Corrections (1998) 63 Cal.Comp.Cases 1042, 1044-1047.) "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. [Citation.]" (Larch v. Contra Costa County, supra, 63 Cal.Comp.Cases at p. 833.)
"It is unnecessary, moreover, that a personnel action have a direct or immediate effect on the employment status. Criticism or action authorized by management may be the initial step or a preliminary form of discipline intended to correct unacceptable, inappropriate conduct of an employee. The initial action may serve as the basis for subsequent or progressive discipline, and ultimately termination of the employment, if the inappropriate conduct is not corrected." (Id. at pp. 834-835.) What constitutes a personnel action depends on the subject matter and factual setting for each case. (Id. at p. 833.)”
Wtih this framework, Claims and defendants in general may have a better understanding as to what may or may not be a personnel action.
For more on this subject, feel free to contact A&S, LLP at firstname.lastname@example.org.
Week of August 6, 2012
For the text of the new regulations, please click here.
Let the Claims Begin: The First 90-Days
The first ninety days of a claim are critical for establishing the course of the entire case.
Detours on Your Road to Closure: The New QME Regulations
Observations and best practices for the new QME Regulations, with additional resources and links.