Firm Obtains Take Nothing Asserting Non-Discriminatory Personnel Action Defense

The Applicant filed a specific injury claim against her employer where she worked as a registered nurse. Alleged were injuries to the head, back, shoulders, nervous system, and psych. The employer was not notified of the alleged injury until a Notice of Representation was received from the Applicant’s Attorney for the Workers Compensation claim.

The Applicant worked with the employer for three years and accrued a reputation for poor performance and an unwillingness to comply with procedural requirements. Accordingly, the employer closely followed established personnel practices in documenting the issues and any subsequent measures to avoid any future violations. These measures included: evaluations, investigational meetings, written notices of violations, updated training, action plans, and written reminders of job requirements. The Applicant was eventually terminated for cause.    

This matter proceeded to discovery where the Applicant pursued examinations only related to her psychological claim; no orthopedic complaints were pursued further. Pursuant to Labor Code Section 3208.3(b)(1), an applicant must show by a preponderance of the evidence that actual events of the employment predominantly caused the psychology injury in order to be compensated. The Panel Qualified Medical Examiner’s reports ultimately determined that 85% of the alleged harm was industrially caused; with 40% arising from personnel actions and 45% from the perceived mistreatment linked to those actions. After the psychological examination concluded, the matter proceeded to trial.

At trial, our firm asserted the Labor Code Section 3208.3(h) affirmative defense which establishes that good faith, lawful personnel action cannot cause rise to compensation under the Workers Compensation division. As evidence to support this defense, we introduced twelve separate exhibits showing documentation of personnel correspondence and agreements that were sent to or discussed with the Applicant. During the Applicant’s trial testimony, she acknowledged receiving and signing several different personnel correspondence, but stated that she signed them as a way to show the employer that she was trying to improve. However, neither the Applicant nor her attorney provided evidence that the personnel actions were unlawful, discriminatory, or in bad faith.      

The Judge considered heavily the Panel Qualified Medical Examiner’s psychiatric report and the personnel evidence presented by our firm. As the Applicant’s alleged injuries were largely attributed to the personnel actions, the Judge considered the documentation that we presented and determined that California Labor Code Section 3208.3(h) applied. After performing the required trier-of-fact determinations, the Judge opined that the Applicant’s stressors were perceived rather than actual and that the personnel actions were indeed lawful, nondiscriminatory, and in good faith. Ultimately, the Judge determined that the Applicant had sustained no compensable injury and issued a Take Nothing Order in favor of the Defendant.    

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