6 month threshold psyche claim (California)

[Attyin909]

Applicant worked 6 months between temp agency and then hired by the special employer as their employee. 3 months at each entity. Same people involved with the alleged stress against the applicant. Is there legal ground for applicant to overcome 6 month rule?

[jpod]

Not sure; what entity was the claim filed against?

LC 3208 says:

(d) Notwithstanding any other provision of this division, no compensation shall be paid pursuant to this division for a psychiatric injury related to a claim against an employer unless the employee has been employed by that employer for at least six months.

Can it be said to be the same employer? It is a general/special employment for sure but coverage follows revenue/payroll so unsure how you can make the temp agency's insurer liable. Perhaps this would be a contribution issue. And perhaps the contract between the employer and the agency has a clause requiring Agency to indemnify - but again that would only be through the time the temp was on the agency payroll.

I think there is case law that says the 6 month requirement does not necessarily have to be met prior to the filing of the claim, so post filing employment can reach the 6 months if my memory is correct.

[LawAdvocate]

From the Applicant side, I agree you argue that essentially it is the same employee given who had actual control and benefit of the work. It is worth a shot.

[Attyin909]

From the Applicant side, I agree you argue that essentially it is the same employee given who had actual control and benefit of the work. It is worth a shot.

I am thinking about filing the CT against both the temp agency and the special who became her actual employer

The same people were involved in the stress and harassment

I couldn't find any case law on this issue but I thought I heard something a few years back

[vampireinthenight]

I cannot think of any cases on point but I would think under these facts you could likely add the employments periods together. Listing both as defendants is probably a safe move.

[50Cal20]

I just read this string today even though it was initially posted last year. There actually is case law addressing this situation. In fact, I remember it quite well and caused quite a commotion within the industry. In Martinez v. Tarrant Apparel dba Fashion Resource, 2010 Cal. Wrk. Comp. P.D. LEXIS 192, an employee worked 6 months for a temp agency (general employer) and was assigned to work all for six months at Tarrant Apparel (special employer). When the worker was later hired as a regular full time employee by Tarrant Apparel performing essentially the same duties, Tarrant at that time became the general employer with the temp agency no longer in the picture. The employee suffered an industrial injury two days later and eventually alleged a psyche sequelae injury. The question before the Board was, "Did employment at Tarrant while in their capacity as the special employer count towards the six month rule when the worker was subsequently injured two days after becoming a regular employee?" The answer is, "Yes, it counted and the time as a special employee of Tarrant was included when calculating six months of employment." The rationale given by the Board was that while working for both the temp agency and Tarrant, this constituted dual employment between a general and special employer, although wages were paid by the general employer (the temp agency). Therefore, the time worked for a special employer counts, regardless of who issues the payroll check.

[jpod]

I wonder if that would also trigger the indemnification clause in the contract with the agency....probably not a WCAB issue though.