Michael Brooks started working as a supervising probation officer at the County of Sacramento’s juvenile hall in 2007, and was apprised of a pending lawsuit alleging use of excessive force by the officers there. He observed problems he believed bordered on violation of protocols and felt that the Security Emergency Response Team (SERT), which he supervised, resisted and undermined his authority and supervision.
In November 2007, Brooks counseled two of the SERT officers as a result of an incident with a ward. Brooks informed his supervisor that the SERT officers resisted his instructions concerning restraining and movement of wards. Later Assistant Chief Deputy John O’Brien met with Brooks and gave him a memo entitled “Admonition and Notice of Internal Affairs Investigation.” The memo advised Brooks of the allegations by Ron Parker, a SERT member, which formed the basis of the internal affairs investigation. The memo directed Brooks to refrain from any supervisory duties which involve Ron Parker, refrain from abusive and or indiscreet language toward Ron Parker, and refrain from any other actions that could reasonably be construed as an attempt to intimidate or threaten Ron Parker. Brooks believed that these directives were unreasonable when it was his job to supervise Ron Parker. Brooks believed that with these directives he would not be able to intervene in an emergency.
Brooks asked to be reassigned or placed on administrative leave pending completion of the investigation. His requests were denied. Brooks did not feel that the Chiefs listened to his concerns or provided a reasonable alternative. However, the employer allowed Brooks to change his shifts to reduce contact with Ron Parker. Brooks went to work on January 2, 2008 and saw that Ron Parker was scheduled to work. Brooks was too upset to work and filed a workers’ compensation psychiatric injury claim which the employer denied. The defense of the claim involved the “good faith personnel action” defense.
Psychiatrist Ann E. Allen, M.D., acted as the agreed medical evaluator. Dr. Allen reported that his disorder was caused by (1) Parker’s complaint, (2) the internal affairs investigation, and (3) Brooks’s feelings that his supervisors were not supporting him. Based upon her report, the WJC found an industrial injury. Ultimately the WCAB affirmed the WCJ’s decision, with one dissenting commissioner, The employer appealed, and the Court of Appeal reversed the finding of injury in the published decision of County of Sacramento v WCAB, Michael Brooks.
The Court of Appeal agreed that Dr. Allen’s reports and testimony did not constitute substantial evidence. Labor Code section 3208.3 was enacted as part of the Margolin-Greene Workers’ Compensation Reform Act of 1989. It is part of the Legislature’s response to increased public concern about the high cost of workers’ compensation coverage, limited benefits for injured workers, suspected fraud and widespread abuses in the system, and particularly the proliferation of workers’ compensation cases with claims for psychiatric injuries. The Legislature’s expressed intent in enacting Labor Code section 3208.3 was to establish a new and higher threshold for compensability for psychiatric injury. To further this more restrictive policy, subdivision (h) provides: “No compensation under this division shall be paid by an employer for a psychiatric injury if the injury was substantially caused by a lawful, nondiscriminatory, good faith personnel action.”
A personnel action has been defined as conduct attributable to management in managing its business, including such things as reviewing, criticizing, demoting, transferring, or disciplining an employee. An employer’s disciplinary actions short of termination may be considered personnel actions even if they are harsh and if the actions were not so clearly out of proportion to the employee’s deficiencies so that no reasonable manager could have imposed such discipline.
The reports of Dr. Allen, when “taken as a whole, were so confusing and changing that Dr. Allen’s opinion cannot be deemed support for the Board’s conclusion that personnel actions were not a substantial cause of Brooks’s injury. Therefore, the Board’s award must be annulled.”