Actual Event of Employment Under LC 3208.3(b)(1)

Labor Code § 3208.3(b)(1) requires a psychiatric injury to be caused predominantly by "actual events of employment." The Court of Appeal has recognized that "The phrase 'actual events of employment' does not provide clear guidance because it is 'susceptible to many meanings.'" (Verga v. WCAB (2008) 159 Cal. App. 4th 174, 185.) It noted that "The intent of the statute was 'to establish a new and higher threshold of compensability for psychiatric injury' and to 'limit claims for psychiatric benefits due to their proliferation and their potential for fraud and abuse.'" (Verga v. WCAB (2008) 159 Cal. App. 4th 174, 185.)

So, not every interaction occurring within the course of employment constitutes an actual event of employment. Although there is no question that harassment by a co-worker could constitute an actual event of employment, the applicant must establish objective evidence of harassment, persecution or other basis for the alleged psychiatric injury. (Verga v. WCAB (2008) 159 Cal. App. 4th, 186.)

In addition, in other cases the Court of Appeal found that "It is not sufficient for purposes of finding industrial causation if the nature of the employee's duties 'merely provided a stage' for the injury; " 'if the employment were an after the fact rationalization' " or if " 'the evidence established that the employment was a mere passive element that a nonindustrial condition happened to have focused on.' " (Atascadero Unified School Dist. v. WCAB (2002) 98 Cal. App. 4th 880, 884, citations omitted). Instead, the employment must play an active or positive role in the development of the psychological condition.

Accordingly, it has been held that a psychiatric injury arising from workplace gossip about an employee's extramarital affair with a co-worker was not compensable. (Atascadero Unified School Dist. v. WCAB (2002) 98 Cal. App. 4th 880.) Similarly, an employee's psychiatric injury resulting from his wife's rape by one co-worker and long-term affair with another co-worker was not industrial and did not meet the requirements of § 3208.3(b). (Lyons v. WCAB (1997) 62 CCC 358 (writ denied).)

Nevertheless, if the employment plays a factor in causing the psychiatric injury other than providing a stage, compensation may be awarded. For example, in Dillard v. County of Tulare  2021 Cal. Wrk. Comp. P.D. LEXIS 89, the WCAB upheld a WCJ's decision that an applicant's psychiatric injury arising from an invasion of privacy by a co-worker was compensable. With a cellphone camera under the stall door, the co-worker filmed the applicant using the bathroom. The applicant confronted the co-worker, who admitted his involvement. The psychiatric QME found that the applicant's psychiatric injury was a direct result of the incident but deferred to the trier-of-fact to determine whether this was an actual event of employment.

The WCAB concluded that it was. It found that the employment was more than just a stage for the incident because the restroom facilities were designed and constructed in a way to make invasion of privacy possible. It also found that the co-worker worked in an adjacent cubicle that afforded him the opportunity to know when the applicant would be using the restroom facilities and to follow him in. It concluded that the employment provided the means and opportunity for the invasion of privacy to occur and thus played a positive role in the development of applicant’s psychological condition.

So, the fact that an employee's psychiatric injury arose due to interactions with a co-worker alone does not constitute an actual event of employment. If the employment is merely the stage for the incident, it would not constitute such actual event for the purposes of § 3208.3(b)(1). If, however, the WCAB finds that the employment actively or positively contributed to the psychological condition, it could find a compensable psychiatric injury. Ultimately, claims must be decided on a case-by-case basis with the WCAB given the authority to weigh and consider the evidence.

For further discussion on the actual events of employment requirement of LC 3208.3(b)(1), review Section 5.30 Psychiatric Injury –– Predominant Cause and Actual Event of Employment.