Jeffrey Fujimoto claimed that he suffered a continuous trauma psychiatric injury while employed as a body technician for Caliber Collision Centers. The parties agreed to use Myron L. Nathan, M.D., as the AME in this case. Dr. Nathan attributed 90% apportionment of the causation of the Applicant’s psychological injury to work-related stress. After a hearing in the case, the WCJ instructed the parties to obtain a definitive report from the AME, regarding factors of causation pursuant to [Rolda v. Pitney Bowes. Inc. (2001) 66 Cal. Comp.Cases 241, 247 (Appeals Board en banc)].”
Specifically the WCJ instructed Dr. Nathan as follows. “[P]lease provide a supplemental report that describes in detail, in accordance with Rolda, all the workplace and all the non-industrial related events and/or issues that combined caused the Applicant’s psychological injury. You are then to assign a percentage of causation separately to each individual work-related and/or non-industrial event(s) and/or issue(s) that, when combined, equal 100% of the causation of the Applicant’s psychological injury. You are not to combine percentages as to any multiple factors and/or issues, either industrial or non-industrial.
It will ultimately be up to me to decide which workplace activities are actual events (i.e., which of the event(s) described by the Applicant happened or not) and whether those events that I have deemed to be actual events are otherwise legitimate, non-discriminatory, good faith personnel actions. Based on this, I can determine if the actual events of employment, if added together, will result in them being the predominant cause (i.e., more than 50%) of the Applicant’s psychological injury and, whether those actual causes were substantially caused (i.e., 35% to 40%) by lawful, nondiscriminatory, good faith personnel actions.” The instruction provided the format for the AME to list and number each industrial and non-industrial event and assign a separate percentage of causation to each numbered event.
In response to the WCJ’s correspondence Dr. Nathan provided a list of 13 separately listed stressful events, and the percentage of causation of each event. After reviewing the evidence, and the 13 item list. the WCJ found that only item number 4 pertaining to a graffiti incident was an “actual event of employment” and this item caused 4% of the psychiatric injury according to the opinion of Dr Nathan. The WCJ issued his Findings of Fact and Order and Opinion on Decision finding that, in accordance with Labor Code § 3208.3(b)(1) and Rolda, that the Applicant did not sustain industrial injury to his psychological system.
The applicant’s Petition for Reconsideration was denied in the panel decision of Jeffrey Fujimoto v Caliber Collision Centers; Hartford Accident and Indemnity Company.
A WCJ is not compelled to blindly accept the testimony of any witness deemed to be untruthful given that he or she is the ultimate finder of fact and is entitled to make his or her own credibility determinations. [Garza v. Workmen’s Comp. Appeals Bd. (1970) 35 Cal. Comp. Cases 500, 505] While the WCAB may reject the findings of a WCJ and enter its own findings on the basis of its review of the record, [Labor Code § 5907] when a WCJ’s findings are supported by solid, credible evidence, they are to be accorded great weight and should be rejected only on the basis of contrary evidence of considerable substantiality. [Lamb v. Workers’ Comp. Appeals Bd. (1974) 39 Cal. Comp. Cases 310, 314]
The multilevel analysis to establish compensability for claims of injury based on personnel actions, in accordance with Rolda v. Pitney Bowes. Inc. (2001) 66 Cal. Comp. Cases 241, 247 (en banc), is as follows:
(1) whether the alleged psychological injury involves actual events of employment, a factual/legal determination;
(2) if so, whether such actual events were the predominant cause (i.e., accounting for 51% or more) of the psychological injury, a determination which requires medical evidence;
(3) if so, whether any of the actual employment events were personnel actions that were lawful, nondiscriminatory and in good faith, a factual/legal determination; and
(4) if so, whether the lawful, nondiscriminatory, good faith personnel action were a “substantial cause” (i.e., accounting for at least 35% to 40%) of the psychological injury, a determination which requires medical evidence.
Having reviewed all of Dr. Nathan’s reports and considering the Applicant’s lack of credibility in his testimony, the WCJ could not conclude that any of the Applicant’s claimed employer actions, except the graffiti were ‘actual events.’