Stress and GI/Cardio claims (California)

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Stress and GI/Cardio claims (California)

Postby DASF22 on Tue Jul 14, 2009 8:04 am

Where it can be shown that emotional stress from a good faith termination caused either GI or CARDIO injury, can the good faith personnel defense be used to defend the derivative physical injury claims, or is the good faith personnel defense limited to psyche injuries? Any citations/cases on point?
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Re: Stress and GI/Cardio claims (California)

Postby steelmanlaw on Tue Jul 14, 2009 3:44 pm

Plenty of writ denied cases uphold WCAB panel decisions that a psych injury governed by the good faith personnel action defense is not the same as a stress injury causing hypertension, gastroenteritis, etc., to which latter claims the good faith personnel action do not apply. (See, Verizon/GTE v. WCAB (Garth) (2002) 67 CCC 856 [writ denied]; May Co. v. WCAB (Hull) (2001) 66 CCC 1378 [writ denied]; and, City of Cypress v. WCAB (Spernak) (1996) 61 CCC 612 [writ denied].) I know this first hand, as I recently prevailed on the defense against the psyche claim under section 3208.3 (h) where the Trial judge ruled against me following Trial, but the Recon Unit reversed in defendant's favor to apply the defense. (Rather the Trial Judge failed to address good faith personnel action at all in his Trial findings, and only cursorily in his report and recommendation on recon.)

However, that same Opinion on Decision remanded back to the trial judge on hypertension and gastro complaints, per Tyler et al., for development of the record, and is so doing cited the above cases. Interestingly, the only medical report available for this 'AOE/COE Priority Conference" leading to Trial was the treating psych report which explicitly deferred to physicians in other disciplines on hypertension and gastro- complaints. Otherwise, it would not be prudent for me to elaborate further as to my litigation POA, as the matter is still pending development of the record.

But that's just me.
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Re: Stress and GI/Cardio claims (California)

Postby jpod on Wed Jul 15, 2009 8:31 am

I can not tell you the state of the law on your question but looking at your question I have to say you have formed a circular arguement.

In your question you say: "...Where it can be shown that emotional stress from a good faith termination caused either GI or CARDIO injury... ...can the good faith personnel defense be used to defend the derivative physical injury claims, or is the good faith personnel defense limited to psyche injuries".

If this is so then it seems to me you do not have a physical injury, you have injury to the pysche with physical symptoms. Fix the pysche and the pyschosomatic reaction ceases. There are no physcial injuries, just physcial symptoms, casued by the injury to the pysche. In your set-up you state that the injury to the pysche was caused by the good faith personnel action. Pyschiatric injuries arising from good faith personnel actions are barred. How does the applicant show a mechanism of physical injury to the GI tract and cardio if you remove the good faith personnel action? It is the pysche's reaction that causes the physical symptoms and the physical symptoms are not injuries even though you label them as such in your set up.

You do not have injury to the GI tract, you have injury to the pysche which has physcial manesfestations to other body parts, but that does not mean those other body parts are seperate claims. You could have workload lead to stress, that leads to phsycial symptoms, but workload stress is not a good faith personnel action so that defense is not available. So if you have facts that say the good faith personnel action caused a pyschosomatic repsonse then the defense can be used if all four elements as established under Rolda have been met. But if the pyschosomatic reaction arises from something other than a good faith personnel action then that defense does not apply.
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Re: Stress and GI/Cardio claims (California)

Postby steelmanlaw on Wed Jul 15, 2009 10:30 am

All well and good, but any AME-quality psychiatrist will tell you that emotional stress is not a psychiatric injury. Diagnosis per DSM-IV TR would be required. 3208.3 (h) is only a defense to a psychiatric injury, per the cases cited above. About the only saving grace or glimmer for defendants is that the cases cited are "writ denied" and are thereby not citable in any court of appeal or supreme court litigation, but rather which courts have deferred hearing the issue.
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Re: Stress and GI/Cardio claims (California)

Postby jpod on Wed Jul 15, 2009 1:43 pm

Which is exactly my point. The setup of the question presumed the result: "if it could be shown that stress from a GFPD caused injury to the GI and cardio...then can the GFPD be employed". If it can be shown, then it is. The problem is it can't be b/c pysche injuries have to be diagnosed through the DSM IV as you point out.

Once again my problem is with the circular logic presented in the question.

I think the better approach to explore is whether there is substantial medical evidence that explains the nexus between work activity and the claimed injury. What is the mechansim through which injury occurred to the GI and cardio systems?
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Re: Stress and GI/Cardio claims (California)

Postby steelmanlaw on Thu Jul 16, 2009 10:20 am

thank you - that's precisley the question, substantial medical evidence. that will be addressed if A/A can come up with any further evidence on remand. until then, we have only a psych report which defers other medical conditions to nonexistent medical opinion.
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Re: Stress and GI/Cardio claims (California)

Postby DASF22 on Fri Jul 17, 2009 2:35 am

To jpod and steelmanlaw

Thanks for the time in responding to my inquiry. Yes, the inquiry was "circular" in setting forth the question, as pointed out by jpod. However, steelmanlaw noted that practical application of sorting out what is a "real" GI/cardio injury in these circumstances and what is only a "transient" manifestation of the GFPD stress.

Steelmanlaw: thanks for the citations.
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Re: Stress and GI/Cardio claims (California)

Postby vampireinthenight on Thu Jul 23, 2009 8:45 am

This is the rub as I see it:

I think Jpod is right when he basically focuses on AOE/COE. If you are a defendant, this is where I would focus. You claim that the cause of the GI symptoms was not deemed as industrial event. To do this I think you have to focus on the root of the reasons for the personnel action defense. In essence, when you apply the defense, you are saying that the employee is reacting unreasonably toward actions that were taken in good faith. Therfore, even though the IW may have actually sufferd stress, it is not a reasonable reaction and the reaction itself is manifested from some non-industrial source. The idea here is to completely separate the IW stress from the workplace, even though you may not have to completely separate in order to apply 3208.3.

Why? The problem I see for the defense is that even though we use words like "barred" from the psyche claim, that is not what 3208.3 says. 3208.3 merely says that the psyche claim is not compensible. It does not say that the psyche claim is not an industrial event. It does not say that psyche claim is not AOE/COE.

That's the problem. Even if not compensible, the psyche portion of the claim could still be deemed to arise out of and in the course of employment. Next, you ask whether the associated GI claim was AOE/COE. Yep. Remember, you cannot apportion to the injury event itself, only to disability. Therefore, you have a GI claim caused (at least in part) by an industrial event, and thus compensible in its own right. Even if the psyche part is not compensible.
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