January 28, 2008 Source:
WorkInjury.com
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CA/3:
Is 'Harassment' for Psyche Claim Defined Objectively or Subjectively?
This applicant gets no respect from anyone (including the courts)...
An employee files a psyche claim as a result of alleged abusive behavior by her supervisor. But at trial, witnesses testify that the alleged "abuse" from the supervisor and others was really just the natural "disdain" anyone would exhibit who had to deal with such an obnoxious employee!
The WCAB agreed - ruling that the evidence supported it was the applicant who was "impolite," "unpleasant" and "a difficult person to get along with" and that she, herself, brought on this "disdain" from her supervisor and co-workers.
Oh, and that such understandable disdain wasn't "harassment."
Accordingly, the WCAB issued a Take Nothing Order, holding that such "disdain is not an actual event of employment" within the meaning of Labor Code Section 3208.3(b)(1) and was therefore not compensable.
[Section 3208.3(b)(1) reads: "In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury."]
The Third District Court of Appeal, in this published decision, looked at the legislative history behind this Labor Code section in affirming the WCAB's decision that the applicant was not entitled to compensation. It ruled that the test for whether harassment constitutes "actual events of employment" for purposes of a psyche claim is an objective test, not the subjective feelings of the applicant.
"[S]ubstantial evidence supports the WCAB's factual findings that Verga's supervisor and co-workers did not persecute or harass her; instead, it was Verga who caused the stressful work environment by being rude, inflexible, easily upset, and demeaning toward other employees.
"That Verga subjectively misperceived as harassment the disdainful reaction of her co-workers to Verga's mistreatment of them did not entitle her to worker's compensation benefits for psychiatric injury. This is so because in enacting section 3208.3, subdivision (b)(1), the Legislature disapproved a ruling permitting such benefits based on an employee's subjective misperception that the employment was stressful.
"In order to limit such claims for psychiatric injury, due to their proliferation and potential for abuse, the Legislature 'establish[ed] a new and higher threshold of compensability for psychiatric injury' by requiring the claimant to demonstrate that 'actual events of employment' were the 'predominant' cause of the alleged psychiatric injury.
This change in the statutory scheme constituted an intent to require the claimant to establish objective evidence of harassment, persecution, or other such basis for alleged psychiatric injury. Verga failed to do so."
[emphasis added]
The case is Verga v. WCAB.
To read the full certified-for-publication opinion,
- Help for the Injured Worker
