Filed 4/22/13
                                 CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                 THIRD APPELLATE DISTRICT
                                        (Sacramento)
                                            ----



COUNTY OF SACRAMENTO,                                           C067739

                  Petitioner,                                WCAB Case No.
                                                              ADJ1898181
        v.                                                   (SAC 0367383)

WORKERS‟ COMPENSATION APPEALS BOARD
and MICHAEL BROOKS,

                  Respondents.




     ORIGINAL PROCEEDING; petition for writ of review from a decision of the
Workers‟ Compensation Appeals Board. Annulled and remanded.

       Hanna, Brophy, MacLean, McAleer & Jensen and Elizabeth S. Trimm for
Petitioner.

      Neil P. Sullivan and James T. Losee for Respondent Workers‟ Compensation
Appeals Board.

      Tweedy, Penney & Crawford, Tweedy, Penney & Company, and Douglass F.
Penney for Respondent Michael Brooks.




                                             1
       A worker‟s psychiatric injury is not compensable “if the injury was substantially
caused by a lawful, nondiscriminatory, good faith personnel action.” (Lab. Code, §
3208.3, subd. (h).)1 In this case, the worker sustained a psychiatric injury after
encountering trouble at work. An agreed medical evaluator concluded that the injury was
not substantially caused by personnel actions, and the Workers‟ Compensation Appeals
Board (Board) awarded compensation. However, the factual basis of the evaluator‟s
opinion, as revealed in her reports and deposition, do not constitute substantial evidence
supporting her conclusion that the worker‟s injury was not substantially caused by
personnel actions. We therefore annul the award and remand to the Board for further
proceedings.
       The question presented here is whether the causes of Brooks‟s psychiatric injury
were personnel actions, not whether those actions were lawful, nondiscriminatory, and
taken in good faith. With that understanding, we refer to the defense under section
3208.3, subdivision (h) as the “personnel action defense” because it is unnecessary to be
more specific.
                               FACTS AND PROCEDURE2
       Respondent Michael Brooks started working as a supervising probation officer at
the County‟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.




1      Hereafter, unspecified code citations are to the Labor Code.
2      The Board adopted the factual findings of the workers compensation judge. Those
findings are reflected in this summary. Additional procedure and evidence, especially
with respect to the causation issue, are discussed in connection with the contentions of
the County of Sacramento (the County).

                                              2
      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.
      On December 14, 2007, Assistant Chief Deputy John O‟Brien met with Brooks
and gave him a memo entitled “Admonition & Notice of Internal Affairs Investigation.”
      Concerning the memo and Brooks‟s response, the workers‟ compensation judge
(WCJ) stated:
      “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. [Brooks‟s] 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 claim.”3
      Psychiatrist Ann E. Allen, M.D., the agreed medical evaluator, diagnosed Brooks
with adjustment disorder with depressed and anxious moods. Dr. Allen expressed her



3      On the claim form filled out by Brooks on January 2, 2008, Brooks described his
injury as follows: “Undue stress due to IAD investigation of allegations and shift change
under duress.”

                                            3
opinion that the following factors caused Brooks‟s disorder:4 (1) Parker‟s complaint, (2)
the internal affairs investigation, and (3) Brooks‟s feelings that his supervisors were not
supporting him.
       In response to Brooks‟s claim for injury to his psyche, the County denied liability,
arguing that his claim was barred by the personnel action defense of section 3208.3. A
WCJ issued a decision in Brooks‟s favor, but the Board rescinded the decision and
returned the matter to the trial level for further development of the record.
       After further development of the record, the WCJ again issued a decision in
Brooks‟s favor. The Board affirmed the WCJ‟s decision, with one dissenting
commissioner.
       The County filed a petition for writ of review, and we order issuance of the writ.
                                       DISCUSSION
       On appeal, the County contends that Dr. Allen‟s reports and testimony do not
constitute substantial evidence that the County‟s personnel actions were not a substantial
cause of Brooks‟s psychiatric injury. According to the County, the evidence does not
support Dr. Allen‟s attempt to apportion the injury to the various causes. We agree.5
       A.     Personnel Action Defense
       “ „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



4        As will be seen, Dr. Allen‟s opinion concerning causation evolved over time. At
first, it was not nearly as clear as we present it in this paragraph.
5      We solicited supplemental briefing concerning whether Parker‟s complaint was a
personnel action. However, the County changed its earlier position on this issue and
agreed with the Board and Brooks that Parker‟s complaint cannot be deemed a personnel
action. Therefore, we do not discuss this issue and express no opinion as to its merits.

                                              4
particularly the proliferation of workers‟ compensation cases with claims for psychiatric
injuries.‟ [Citation.]” (Lockheed Martin Corp. v. Workers’ Comp. Appeals Bd. (2002) 96
Cal.App.4th 1237, 1242 (Lockheed).) “ „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.‟ [Citations.]” (Lockheed, supra, at p. 1242; §
3208.3, subd. (c).) 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. The burden of proof shall rest with the party asserting the issue.” “ „[S]ubstantial
cause‟ means at least 35 to 40 percent of the causation from all sources combined.” (§
3208.3, subd. (b)(3).)
       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. (Larch v. Contra Costa County (1998) 63
Cal.Comp.Cases 831, 833-839; Stockman v. State of California/Department of Corr.
(1998) 63 Cal.Comp.Cases 1042, 1044-1047.) “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. [Citation.]” (Larch v. Contra
Costa County, supra, 63 Cal.Comp.Cases at p. 833.) “It is unnecessary, moreover, that a
personnel action have a direct or immediate effect on the employment status. Criticism
or action authorized by management may be the initial step or a preliminary form of
discipline intended to correct unacceptable, inappropriate conduct of an employee. The
initial action may serve as the basis for subsequent or progressive discipline, and
ultimately termination of the employment, if the inappropriate conduct is not corrected.”
(Id. at pp. 834-835.) What constitutes a personnel action depends on the subject matter
and factual setting for each case. (Id. at p. 833.)

                                              5
       Whether there has been a psychiatric injury must be established by expert medical
opinion. (Rolda v. Pitney Bowes, Inc. (2001) 66 Cal.Comp.Cases 241, 245.) However,
“the WCJ must then decide whether any of the actual events of employment [that caused
the psychiatric injury] were personnel actions, and if so, whether any of them were
lawful, nondiscriminatory, good faith personnel actions. These are factual/legal issues
for the WCJ to determine.” (Id. at p. 246.)
       B.        Specific Facts and Procedure Relating to Personnel Action Defense
       Brooks was first interviewed by Dr. Allen, the agreed medical evaluator, on
October 29, 2008, more than 10 months after the injury. After the interview, Dr. Allen
prepared a report, addressing causation only generally: “Lacking evidence of pre-
existing psychiatric problems to explain his recent emotional changes, his description of
feeling undermined as a supervisor and unsupported by his superiors regarding an
employee‟s grievance would be sufficient precipitants for the development of emotional
difficulties.”
       Dr. Allen also stated in her report: “At this point, there were no particular
personnel acts such as being placed on a paid leave of absence or other circumstances
that contributed substantially to the development of emotional difficulties. Thus, if his
employers‟ actions are found to not be in good faith, then his psychiatric claim would be
compensable.”6
       The County asserted that the personnel action defense precluded an award.
       Dr. Allen did not testify at the May 19, 2009, hearing before the WCJ, but her
report was admitted into evidence. In his decision, dated August 4, 2009, the WCJ stated
that he found Dr. Allen‟s report persuasive. The decision noted that the internal affairs
investigation and the changes made to Brooks‟s shifts were personnel actions; however,



6     As will be seen, Dr. Allen‟s apparent contradictions and misunderstanding of the
law caused the Board to remand for further evidence after the first decision of the WCJ.

                                              6
the WCJ concluded that the County “failed to meet [its] burden of proof establishing that
a personnel action was a substantial cause of the psychiatric injury.”
       The Board rescinded the August 4, 2009, decision and remanded the case for
further development of the record with respect to the personnel action defense. The
Board noted:
       “The WCJ‟s decision was based on his finding that Dr. Allen did not address
whether the employer‟s lawful, nondiscriminatory, good faith personnel actions were a
substantial cause of [Brooks‟s] psychiatric injury. However, Dr. Allen did, in fact,
address this issue stating, „[a]t this point, there were no particular personnel acts such as
being placed on a paid leave of absence or other circumstances that contributed
substantially to the development of emotional difficulties. Thus, if his employer‟s actions
are found to not be in good faith, then his psychiatric claim would be compensable.‟ Yet,
while Dr. Allen addressed this issue and in light of the totality of her report, the statement
is ambiguous and does not clearly answer the question „whether the lawful,
nondiscriminatory, good faith personnel actions were a “substantial cause” of the
psychiatric injury‟ . . . .”
       Meanwhile, even before the Board had rescinded the WCJ‟s decision, Dr. Allen
issued a supplemental report at the request of the County addressing again the issue of
causation. In this supplemental report, dated August 3, 2009, Dr. Allen stated: “It would
be my opinion that Mr. Brooks[‟s] psychiatric disorder was predominately caused by the
internal affairs investigation was for the complaint, grievance, and shift change in
directive of the supervisor. [Sic.] [¶] Based on the evidence to date, Mr. Brooks felt
undermined as a supervisor and unsupported by his superiors regarding an employee‟s
grievance. The investigation concerning the grievance as well as the grievance itself
contributes substantially to causation of the injury.”
       Dr. Allen concluded: “In terms of apportionment of causative factors, the
employee‟s grievance would contribute one-third to the development of psychiatric

                                              7
injury, the investigation would contribute one-third to the development of psychiatric
injury, and his feelings that he was unsupported by his supervisors would contribute one-
third to the development of psychiatric injury in this case. Hopefully, this clarifies any
matters[,] and determination of compensability may ultimately be left to the trier of fact
in this case.”
       Counsel for the County and for Brooks deposed Dr. Allen on April 8, 2010. The
focus of the deposition was on what the several causes of Brooks‟s injury were and how
Dr. Allen assigned fractions of causation to each of those causes.
       Concerning the separation of the internal affairs investigation as a cause and
Brooks‟s feelings of not being supported by his supervisors as a separate cause, Dr. Allen
testified as follows:
       “[Counsel for County:] So when you say that [Brooks] had a lack of support from
the supervisors, is that relating still to the internal affairs matter, the investigation, the
directive of not supervising the shift change?
       “[Dr. Allen:] I think that it also had to do with some other circumstances
surrounding the situation.
       “[Counsel for County:] What situation?
       “[Dr. Allen:] Let‟s see. Let me make sure I completed it. Well, he said that he
had sent e-mails to his supervisor, Martin, about the problems he was having with feeling
that [Parker] was trying to supersede his authority and make decisions that he should not
have been making and acting towards him in a disrespectful manner. And, let‟s see, so
that was -- he said that that was -- I assume that that was -- that had occurred before the
first counseling meeting, and he hadn‟t heard anything back. [¶] . . . [¶]
       “[Dr. Allen:] . . . I think there was one other part of that too, about feeling
unsupported, that he said that he had gone to his immediate supervisor because he felt
like the security team was resisting supervision. But it didn‟t resolve the situation.”
(Italics added.)

                                                8
       During the deposition, Dr. Allen expressed confusion about the facts of the case.
She expressed her opinion that Brooks‟s being placed on administrative leave alone was
not a substantial cause of Brooks‟s injury. However, Brooks was never placed on
administrative leave.
       Again attempting to describe the third part of the causation relating to Brooks‟s
feelings of not being supported by his supervisors, Dr. Allen testified: “And he definitely
felt like his supervisors or superiors were not on his side or were not sympathetic to his
version of events and hadn‟t responded when he was concerned about that. That is the
way he related.” And later, she testified: “I believe that a lot of when he felt unsupported
by his superiors occurred when they told him about the complaint.”
       Dr. Allen added that Brooks felt his supervisors were unreasonable “about not
supervising [Parker] any longer.” She said that “when [Brooks] tried to talk to them
about how this wouldn‟t be possible in performing his job, that he felt that they were --
they acted in a way that didn‟t acknowledge his side or his perspective or his concern
about remaining in a supervisory status. So that is how he perceived it.”
       After this testimony, Dr. Allen tried to explain that this feeling that Brooks had
that his supervisors were being unreasonable about Brooks supervising Parker was not
part of his feelings of not being supported. Instead, Dr. Allen had separated those
feelings out as having to do only with the investigation. When counsel for the County
observed that the directive was part of the County‟s response to the complaint and the
initiation of the internal affairs investigation, Dr. Allen replied: “Well, no doubt it is all
interrelated. I think that is what makes it hard for figuring out what are percent
causations in these kinds of cases.”
       The case, with this new evidence, was again submitted to the WCJ, and the WCJ
again awarded compensation, finding that the personnel action defense did not apply
because the internal affairs investigation was not a substantial cause (at least 35 percent)
of the injury.

                                               9
          The County argued to the WCJ that Brooks‟s feelings of not being supported by
his supervisors was not a causal event but instead were Brooks‟s reactions to the events.
The County claimed those feelings were caused by the events surrounding the internal
affairs investigation and, therefore, were the result of a personnel action. The WCJ
rejected this argument, noting that some of the feelings arose from the beginning of
Brooks‟s employment at juvenile hall when he reported excessive force and other
problems that his supervisors did not believe were occurring. Since this lack of support
preceded the complaint and internal affairs investigation, they were not part a personnel
action.
          The WCJ concluded: “It was found that [the County] failed to establish, with
competent medical evidence, that the personnel actions (the investigation and shift
change) were a substantial cause of the psyche injury. Though [the County] argues that a
fair and full review of the evidence would support a finding that the personnel actions
were a substantial cause, [the County] does not specifically point to a medical opinion
that substantiates their [sic] position.”
          In its opinion and decision after reconsideration, the Board concluded that, of all
events that caused Brooks‟s injury, only the internal affairs investigation was a personnel
action. Since that investigation accounted for only one-third of the causation, in Dr.
Allen‟s opinion, it was not a substantial cause of Brooks‟s injury and the personnel action
defense was inapplicable.
          The Board further explained: “While [the County] argues that some aspects of
Parker‟s grievance and some aspects of his feelings of being unsupported by his
supervisors cannot be separated from the internal investigation and that these combine to
meet the 35% threshold for substantial cause, this argument is not supported by the
record. Furthermore, the issue of whether lawful, nondiscriminatory, good faith
personnel actions are a substantial cause of a psychiatric injury requires medical
evidence. (Rolda, supra, 66 Cal.Comp.Cases at p. 247.)”

                                               10
       The Board continued: “In her August 9, 2009 report, Dr. Allen stated, „personnel
acts of being placed on a paid leave of absence and the criticisms pertaining [to] his
performance evaluation were not substantially related to the development of emotional
difficulties.‟ In her deposition, Dr. Allen testified that the investigation by itself was not
a substantial cause [citation], that she could not say that the investigation alone would not
have caused a psychiatric disorder [citation], and, essentially, that she could not parcel
out factors more than she already had [citation]. Therefore, we are persuaded that [the
County] failed to meet its burden of proving that lawful, nondiscriminatory, good faith
personnel actions were a substantial cause of [Brooks‟s] injury.”
       One commissioner dissented from the Board‟s decision, stating that the Board
should again return the matter for additional evidence because Dr. Allen‟s opinion did not
constitute substantial evidence. The commissioner wrote: “Dr. Allen‟s opinion contains
several inconsistent and unintelligible statements. For example, in her October 29, 2008
report, she stated that, „[a]t this point, there is no particular personnel acts such as being
placed on a paid leave of absence or other circumstances that contributed substantially to
the development of emotional difficulties.‟ [Citation to evidence.] She attempted to
clarify that statement by stating, „that personnel acts of being placed on a paid leave of
absence and the criticisms pertaining [to] his performance evaluation were not
substantially related to the development of emotional difficulties.‟ A statement, I find
equally confusing. [Sic.] Moreover, her deposition testimony was equally inconsistent
and confusi[ng]. After opining that causation was divided one-third to the grievance,
one-third to the investigation, and one-third to [Brooks‟s] feeling of being unsupported,
Dr. Allen admitted that all events were interrelated making it difficult to apportion
causation and that some of his feelings of being unsupported by his supervisors were
related to the investigation. This inconsistency makes her report unsubstantial.”




                                              11
       C.       Analysis
       Dr. Allen‟s reports and testimony were the basis for the Board‟s determination that
personnel actions did not substantially cause Brooks‟s psychiatric injury. Those reports
and testimony, however, 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.
       We begin with the findings, unchallenged here, that (1) one-third of Brooks‟s
injury was caused by the internal affairs investigation and (2) the investigation was a
personnel action. Therefore, even if a small amount of the remaining causation can be
attributed to personnel actions, then personnel actions were a substantial cause (at least
35 percent) of Brooks‟s injury. To determine whether part of the remaining causation
can be attributed to personnel actions, as we explain hereafter, we must consider what the
record established as the causes of Brooks‟s “feelings that he was unsupported by his
supervisors.”
       The Board‟s causation analysis treated Brooks‟s “feelings that he was unsupported
by his supervisors” as a cause of psychiatric injury, as did Dr. Allen. In reality, however,
his feelings were the injury, or symptoms of the injury, not the cause of the injury.
       Using the reasoning of Dr. Allen and the Board, one could conclude that even the
internal affairs investigation was not a personnel action because it was Brooks‟s feelings
about the internal affairs investigation that caused the injury not the investigation itself.
Such reasoning is unsound. It was the internal affairs investigation that caused, in Dr.
Allen‟s opinion, one-third of the injury. By the same token, we must attempt to
determine from the evidence whether events properly identified as personnel actions
caused Brooks‟s “feelings that he was unsupported by his supervisors.”




                                              12
       As the Board stated in its opinion, Dr. Allen claimed that she separated Brooks‟s
feelings about the investigation from other causes. However, her deposition testimony
establishes the opposite, that she did not and could not separate those causes.
       When asked whether the lack of support from supervisors related to the
investigation and shift change, Dr. Allen did not say “yes” but she unmistakably implied
an affirmative answer when she responded: “I think that it also had to do with some
other circumstances surrounding the situation.” (Italics added.)
       Dr. Allen testified: “I believe that a lot of when he felt unsupported by his
superiors occurred when they told him about the complaint.” But the Board failed to
recognize that the supervisors‟ sitting down with Brooks and telling him about the
complaint was part of the personnel action involving the investigation and shift change.
       Dr. Allen also testified that Brooks felt unsupported because his supervisors “were
not sympathetic to his version of events . . . .” That also unmistakably refers to the
investigation.
       Finally, Dr. Allen admitted under questioning by the County‟s attorney that,
although she tried to separate out the causes, “no doubt it is all interrelated.”
       Any way you look at Dr. Allen‟s evidence, as long as you look at all of it, the
personnel actions involving the investigation and shift change were causes, if not the only
causes, of Brooks‟s “feelings that he was unsupported by his supervisors.”
       In deciding this case, the Board noted that causation by a personnel action must be
supported by medical evidence, and pointed out that the County had not specifically
relied on a medical opinion that supported its position. That is true only if you adopt Dr.
Allen‟s untenable opinion that Brooks‟s “feelings that he was unsupported by his
supervisors” were a cause of his injury. She was unable to differentiate between causes
and injury, or symptoms of injury. She admitted that the causes were interrelated, and
she was unable to credibly separate them.



                                              13
       “[T]he law does not accord to the expert‟s opinion the same degree of credence or
integrity as it does the data underlying the opinion. Like a house built on sand, the
expert‟s opinion is no better than the facts on which it is based.” (Kennemur v. State of
California (1982) 133 Cal.App.3d 907, 923.)
       The medical evaluator has no authority to decide what is or is not a personnel
action. However, the Board assumed that, because Dr. Allen stated that Brooks‟s
“feelings that he was unsupported by his supervisors” did not constitute a personnel
action, there was no personnel action involved in causing those feelings. The Board erred
by impliedly accepting Dr. Allen‟s opinion concerning what is a personnel action when it
did not consider the record for evidence concerning what caused Brooks‟s “feelings that
he was unsupported by his supervisors.” The error was prejudicial because, absent the
error, the Board may well have concluded that personnel actions substantially caused
Brooks‟s psychiatric injury.
       Having found that the Board‟s decision is unsupported, we turn to the question of
the appropriate remedy. The faulty assumptions and contradictions in Dr. Allen‟s reports
and testimony concerning the causes of Brooks‟s injuries establish that better medical
evidence and legal analysis are needed to decide the question of whether his injuries were
caused by a personnel action. Accordingly, the appropriate remedy is to remand for
further development of the record. (See Kuykendall v. Workers’ Comp. Appeals Bd.
(2000) 79 Cal.App.4th 396, 403.)




                                            14
                                     DISPOSITION
       The Board‟s decision is annulled, and the matter is remanded to the Board with
directions to further develop the record and reconsider the decision in a manner
consistent with this decision.



                                                  NICHOLSON          , J.



We concur:



      RAYE          , P. J.



      HOCH          , J.




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