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Court of Appeal, Second District, Division 1, California.

MMI MEDICAL, INC., et al., Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and Dorothy Alane Aldridge, Respondents.

No. B095605.

Decided: June 14, 1996

Parker & Irwin, Michael E. Palumbo and Donald Hitzeman, Pomona, for Petitioners. No appearance for Respondents.

The Workers' Compensation Appeals Board (the “Board”) determined that applicant Dorothy Alane Aldridge sustained an industrial injury to her psyche. Based on our review of the medical evidence in the record, we conclude that Aldridge did not satisfy her burden of proving such an injury. Accordingly, we annul the Board's decision.


Aldridge was employed by MMI Medical, Inc. (“MMI”), from April 1991 to February 1992. In April 1992, she filed a claim for workers' compensation benefits against MMI.1 On the claim form, Aldridge described her injury as “[h]arassment causing insomnia, rash[es], headaches, anxiety attacks-- leading to stress.” The dates of injury were listed as April 8, 1991, through February 25, 1992.

In 1994, the matter was tried over three days before Workers' Compensation Judge (“WCJ”) Michael A. Martinez. MMI raised several issues at trial, including whether Aldridge had sustained an injury arising out of and in the course of employment.

Aldridge testified that her manager (Mike) had sexually harassed her from December 1991 to February 1992. She stopped working in mid-February 1992 and went to her general practitioner, Dr. Janice Kurth, who put her on disability. Kurth referred Aldridge to Dr. Deborah Steese-Seda and Dr. John Ursino for psychotherapy. On or about February 25, 1992, Aldridge began treatment with Dr. Seda, a registered psychological assistant. Aldridge attended several therapy sessions with Dr. Seda. Aldridge saw Dr. Ursino, a psychiatrist, beginning in February 1992; he supervised her use of medications. Aldridge was also evaluated by two defense doctors, Scott Frazier and Howard Greils.

At trial, the WCJ admitted in evidence the reports of Dr. Seda (dated June 1, 1992), Dr. Ursino (dated September 1, 1992) and Drs. Frazier and Greils (dated July 23, 1992). Also admitted were the notes of Dr. Seda.

On May 9, 1995, the WCJ issued his Findings and Order, in which he concluded that Aldridge had “sustained injury arising out of and in the course of employment to her psyche” and that “the medical reports submitted by the worker and the employer are not substantial evidence.” (Italics added.) The WCJ ordered that the issues of temporary disability, permanent disability, apportionment, and further medical treatment be deferred pending the submission of further medical evidence. Also, the issues of medical-legal expenses and lien claims of record were deferred pending proper notice to the lien claimants.

On June 2, 1995, MMI moved for reconsideration on the grounds, among others, that the WCJ could not have properly found Aldridge's injury to be work related since the medical reports did not constitute substantial evidence. On June 14, 1995, the WCJ issued a Report and Recommendation on Petition for Reconsideration (“report on reconsideration”). In it, he stated that the finding of an industrial injury was based on Dr. Ursino's report, Aldridge's testimony, and defense exhibit B.2 The report on reconsideration also noted: “As the record shows, the worker has had some major life experiences and nonindustrial stressors. Dr. Ursino's report has failed to adequately take into consideration those factors.” (Italics added.)

By order dated July 27, 1995, the Board adopted the WCJ's report on reconsideration and denied MMI's petition for reconsideration.

On September 11, 1995, MMI and American Motorists petitioned this court for a writ of review (the “petition”). (Lab. Code, § 5950.) By letter of October 2, 1995, Aldridge informed the clerk of this court that she considered the petition to be frivolous and that she would not file an answer.

On January 24, 1996, we issued a writ of review, directing the Board to certify and return to this court the record before the Board in the underlying proceeding. (Lab. Code, § 5951.) We also scheduled oral argument on the petition and further provided that Aldridge could file responsive papers to the petition. No such papers have been filed, and Aldridge did not appear for oral argument. Having reviewed the administrative record, we now examine the Board's decision to determine if it was supported by substantial evidence. (Lab. Code, § 5952, subd. (d).) We conclude that it was not.


At the time of Aldridge's alleged injury, Labor Code section 3208.3 provided in pertinent part that “[i]n 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 responsible for at least 10 percent of the total causation from all sources contributing to the psychiatric injury.” (Former Lab. Code, § 3208.3, subd. (b), added by Stats. 1989, ch. 892, § 25 and amended by Stats. 1993, ch. 118, § 1.)

In meeting her burden of proof, Aldridge had to offer both lay and medical evidence to establish that at least 10 percent of her psychiatric injury was work induced. “Whether [the] applicant sustained a compensable psychiatric injury as the result of her employment ․ requires both lay and medical evidence for support. Lay testimony must support the occurrence of injurious incidents which are employment related. Lay testimony alone, however, cannot establish psychiatric injury. Expert medical evidence must support the proposition that the employment incidents are related to the development of the psychiatric condition.” (Insurance Co. of North America v. Workers' Comp. Appeals Bd. (1981) 122 Cal.App.3d 905, 911-912.) “[T]he medical evidence relied on herein [must] provide[] substantial evidence to support a finding of industrial injury.” (Twentieth Century-Fox Film Corp. v. Workers' Comp. Appeals Bd. (1983) 141 Cal.App.3d 778, 784.)

“Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess.” (Twentieth Century-Fox Film Corp. v. Workers' Comp. Appeals Bd., supra, 141 Cal.App.3d at p. 785, italics added, internal quotation marks omitted.)

In this case, the WCJ indicated in his report on reconsideration that the finding of an industrial injury was supported by Aldridge's testimony, defense exhibit B, and Dr. Ursino's report. Plainly, Aldridge's testimony and exhibit B are not expert medical evidence.3 Moreover, while Dr. Ursino's report is obviously medical evidence, it does not constitute substantial evidence that at least 10 percent of Aldridge's injury was attributable to an industrial cause. As the WCJ acknowledged in his report, Dr. Ursino failed to consider numerous nonindustrial stressors.4 Because Dr. Ursino did not consider the extent to which these nonindustrial factors contributed to Aldridge's psychiatric injury, there is no substantial medical evidence supporting the Board's finding of an industrial injury.

Indeed, in their report, Drs. Frazier and Greils concluded as follows: “The examinee's adjustment disorder, longstanding personality disorder and period of temporary partial disability between November of 1991 and April of 1992 are considered to be 100% nonindustrial in nature. The spousal abuse exacerbated her longstanding characterological deficiencies, present as a result of her pre-existing personality disorder․ [¶] The examinee is considered to have been in need of treatment with medication and psychotherapy due to the adjustment disorder she developed in response to the spousal abuse, her separation and the abandonment of her children.”

Because the Board's finding of an industrial injury was not supported by substantial evidence, its decision must be annulled.5


The Workers' Compensation Appeals Board's order of July 27, 1995, adopting the Workers' Compensation Judge's Report and Recommendation on Petition for Reconsideration and denying reconsideration, is annulled with directions to grant reconsideration and to annul the finding that Dorothy Alane Aldridge sustained an industrial injury to her psyche.


1.  MMI's workers' compensation carrier, American Motorists Insurance Company (“American Motorists”), is also a defendant in the underlying proceeding.

2.  Exhibit B was a May 11, 1994 letter from one of Aldridge's co-workers to Joann Ramirez, Aldridge's supervisor. The letter reads in part: “I had told Elaine [Aldridge] I would testify in court. I was summon[ed] and went to Pomona. Elaine proceeded to tell me things that I did not witness. She tried to tell me about conversations I never heard. I came home very upset and decided that she acted like she would like me to lie. I never heard Mike say any sexual comments, except to compliment her about a dress she was wearing one day when we got called into the office. I believe she misunderstood the compliment. I had heard rumors about Mike, yet I never witnessed any of the allegation[s] Elaine has claimed.”

3.  Frankly, we do not see how exhibit B supported any type of finding in Aldridge's favor. If anything, that letter suggests that Aldridge asked a co-worker to testify falsely on her behalf.

4.  Many of these nonindustrial factors were mentioned in Dr. Seda's notes of her sessions with Aldridge. They include: (1) Aldridge's confusion about her relationship with a male roommate; (2) depression over her roommate's statement that he did not love her; (3) excessive drinking; (4) sexual abuse by her first husband (e.g., repeatedly being tied up and sodomized); (5) “playing around” with her dosage of Prozac; and (6) not being allowed by her second husband to see their two daughters, which caused Aldridge to “experience[] homicidal ideation.”

5.  We therefore do not need to reach MMI's contentions about whether Aldridge was a credible witness, whether certain medical records were admissible, whether the WCJ accurately summarized the evidence, or whether Aldridge's failure to file a mandatory settlement conference statement precluded the admission of Dr. Ursino's report.

MASTERSON, Associate Justice.

ORTEGA, P.J., and MIRIAM A. VOGEL, J., concur.

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