Dennis Lindsey was employed as a staff psychologist by the California Department of Corrections and Rehabilitation. He filed an Application for Adjudication alleging injury arising out of and in the course of employment to his psyche, hypertension, and aortic root dilation.

Dr. Anne Welty, the Agreed Medical Examiner in psychology. issued a report diagnosing the applicant with adjustment disorder with mixed disturbance of emotions and conduct. As to causation, Dr. Welty stated that with a reasonable degree of medical probability, over 51% of the applicant’s acute and presenting psychiatric symptoms developed as a result of the events that transpired during the course of his employment with the Chino Institute for Men. Based on the opinions of Dr. Welty, the WCJ found that the events of employment were the predominant cause of the applicant’s psychiatric injury.

Having determined that the applicant’s psychiatric injury involves actual events of employment and that some of those events of employment were lawful, nondiscriminatory, and made in good faith personnel actions, the WCJ was required to determine if those personnel actions were a substantial cause of the applicant’s psychiatric injury. Substantial cause is defined by the Labor Code to mean at least 35 to 40 percent of the causation from all sources combined.

Based on the medical opinion of Dr. Welty, the WCJ found that 15% of the cause of the applicant’s psychological injury was the result of the disciplinary action for the paperwork submission and timeliness of patient team meetings and scheduled appointments, 10% attributed to the disciplinary action for going outside the chain of command and for using profane language, and 10% attributed to the disciplinary action for going outside the chain of command when he submitted a complaint regarding a particular staff psychiatrist who was going to come work on the team.

When combined, these three events of employment total 35% of the causation from all sources combined and were a substantial cause of the applicant’s psychological injury, and the WCJ found that the defendant had no liability for the applicant’s psychological injury.

Applicant’s Petitioned for Reconsideration was dismissed in the panel decision of Lindsey v  California Department of Corrections and Rehabilitation -ADJ9111192 (January 2024).

The petition in this matter was filed on November 13, 2023. This was more than 25 days after the service of the WCJ’s September 16, 2022 decision and beyond whatever extension of time, if any, the petitioner might have been entitled to under WCAB Rule 10600. This time limit is jurisdictional and, therefore, the Appeals Board has no authority to consider or act upon an untimely petition for reconsideration.

Additionally the Petition for Reconsideration was not verified and notice of this defect was specifically given in both the WCJ’s Report and by the respondent’s answer. Moreover, a reasonable period of time has elapsed, but petitioner has neither cured the defect by filing a verification nor offered an explanation of why a verification cannot be filed.

However, the WCAB panel went on to say “If the petition had been timely, we would have denied it on the merits for the reasons stated in the WCJ’s report.” And added “In addition to the WCJ’s Report, we offer the following as further clarification regarding ‘events of employment’ and ‘personnel actions.’ “

When a psychiatric injury is alleged and the “good faith personnel action” defense has been raised, the WCJ must evaluate the defense according to a multilevel analysis. This is often referred to as a Rolda analysis, base on Rdolda v. Pitney Bowes, Inc. (2001) 66 Cal.Comp.Cases 241.

It is often helpful to break this analysis into discreet elements: (1) whether the alleged psychiatric injury involves actual events of employment, a factual/legal determination; (2) if so, whether such actual events were the predominant cause of the psychiatric injury, a determination which requires competent medical evidence; (3) if actual events of employment were the predominant cause of the psychiatric injury, whether any of the events of employment were personnel actions; (4) if so, were those personnel actions lawful, nondiscriminatory and in good faith; and (5) if so, whether the lawful, nondiscriminatory, good faith personnel actions were a “substantial cause” of the psychiatric injury.

In Larch v. Contra Costa County, the Appeals Board defined personnel action as conduct either by or attributable to management, which includes actions taken by someone who has the authority to review, criticize, demote, or discipline an employee. (Larch (Fleming) v. Contra Costa County (1998) 63 Cal.Comp.Cases 831, 833 [“conduct attributable to management in managing its business including such things as done by one in authority to review, criticize, demote, transfer or discipline an employee in good faith.”].)

It is not necessary that the action have a direct or immediate effect on the employment status. Not every action taken by someone who has the authority to review, criticize, demote, or discipline is necessarily a personnel action. The issue of whether the employee’s psychiatric injury occurred as a result of a personnel action is a factual and legal issue for the WCJ, as is the determination of whether a personnel action is lawful, nondiscriminatory, and made in good faith.

The WCAB dismissed the Petition as untimely and unverified. However, “if the petition had been timely and verified, we would have denied it on the merits for the reasons stated in the WCJ’s report.”