All our lives are stressful, so if employees could file a psych claim anytime employers stressed them out, every employee would have a psych claim at one point or another. For this reason, employees alleging industrial psych injuries must meet a higher threshold of proof in order to prevail.
Labor Code §3208.3(b)(1) states that “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. This means that the employee’s proof must show that the industrial component of the psych injury was over 51%.
Labor Code §3208(b)(2) notes that psych injuries stemming from a violent crime must only be proved by way of a substantial factor which equates to 40% of the causal nexus.
An employee must be employed for at least six (6) months before he/she can allege a psych injury, unless the psych injury stems from a sudden and extraordinary event. There are many cases defining a sudden and extraordinary event. Judges have held that a bad car accident may rise to the level of sudden and extraordinary, while a falling from a ladder while picking avocados may not. This determination is made on a case-by-case basis. It is important for the employee to prove that whatever happened is very rare, in order to win on this theory.
If the psych injury is filed after a notice of termination or lay-off (including a voluntary lay-off) the employee must show one of the following:
(1) The event was sudden and extraordinary,
(2) the employer knew of the injury before the termination or lay-off,
(3) there are medical records prior to termination or lay-off which show there was an injury,
(4) there was sexual or racial harassment involved,
(5) the date of injury was after the termination (i.e., the employee was not aware of the injury until after the termination.)
The employee cannot win on a psych claim if the reason for the injury has to do with good faith personnel actions. For example, if the employee is constantly late, and the employer yells at her to be on time, causing stress in the employee – that would not be the basis of a legitimate psych claim.
San Diego Workers Compensation Attorney 