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Court of Appeal, Second District, Division 2, California.

Lianne TRAVIS, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and City of Los Angeles, Respondents.

No. B093112.

Decided: June 25, 1996

Lewis, Marenstein, Wicke & Sherwin and Robert J. Sherwin, Woodland Hills, for Petitioner. Amicus Curiae Committee, California Applicants' Attorneys Association and William A. Herreras, Grover Beach, on behalf of Petitioner. James K. Hahn, City Attorney, Garrett Kuehn, Supervising Attorney, and James M. Carson, Deputy City Attorney, for Respondent.


Petitioner is the widow of Byron Keith Travis (decedent), an officer of the Los Angeles Police Department who committed suicide by shooting himself in the forehead. At the time of his death, decedent was at home, off duty as the result of orthopedic industrial injuries.

On behalf of herself and Trisha Travis (petitioner's and decedent's teen-aged daughter), petitioner filed for death benefits pursuant to Labor Code section 4701,1 alleging that decedent's death had been caused by emotional stress of his employment as a police officer. The Workers' Compensation Judge, the Honorable Robert S. Juhl (WCJ), found in favor of petitioner's claim and determined that decedent had died as “a proximate result of injury to his psyche, arising out of and occurring in the course of his employment on 3-28-92, and from 1970 to 3-28-92, as a police officer ․” Relying on a doctor's report that the WCJ had not credited, respondent Workers' Compensation Appeals Board (the Board) reversed and rescinded the WCJ's findings and award. Because defendant City of Los Angeles (City) did not reject petitioner's death benefit claims within 90 days and because the Board based its decision on evidence that should have been excluded pursuant to section 5402, we reverse the Board's determination.


Decedent killed himself on March 28, 1992. At the time of his death, decedent had been off work for several weeks with a back problem, as well as other physical and psychiatric difficulties. Prior to his death, decedent had been under the care of psychiatrist Murray Brown, M.D.

Petitioner filed the claim with the City on June 19, 1992. During the ensuing 90-day period, which ended on September 17, 1992, the City did not reject petitioner's claim.

In a report dated November 23, 1992, Thomas Curtis, M.D., a psychiatrist, concluded that decedent's death “should be considered to be of industrial causation.” Shortly thereafter, on November 30, 1992, the City deposed petitioner. On February 16, 1993, Eric Marcus, M.D., another psychiatrist, interviewed petitioner. In his report, dated April 6, 1993, Dr. Marcus concluded that decedent's inherited personality problems, aggravated by nonindustrial stressors, had caused his death.

After an evidentiary hearing, the WCJ found that Dr. Marcus's report was inadmissible due to a procedural defect in the report. Relying on Dr. Curtis's report alone, the WCJ found that petitioner and her daughter were entitled to workers' compensation benefits. The Board granted the City's petition for reconsideration and ordered the WCJ to allow the City to have Dr. Marcus's report corrected and to rehear the matter. The WCJ's subsequent opinion stated that Dr. Marcus had not given sufficient weight to the stress of decedent's employment and found Dr. Curtis's report more credible. The WCJ further found that decedent had suffered from major work-related depression, aggravated by back pain from industrial injury. The WCJ concluded that the resulting intense physical pain and emotional stress caused an uncontrolled or irresistible impulse that was responsible for decedent's suicide.

On the City's petition for reconsideration, the Board found Dr. Marcus's conclusions more persuasive and reversed the WCJ's decision. The Board also found that the evidence presented by Dr. Marcus's report was proper evidence to rebut the presumption of compensability provided by section 5402 when an employer fails to reject a claim for compensation within 90 days after the date the claim is filed. In finding that Dr. Marcus's report was evidence “which could not have been discovered with the exercise of reasonable diligence within the 90-day period,” the Board stated its rationale as follows: “Here, ․ [d] efendant [City] had no basis within the 90 day period to believe there were any grounds for denying the claim. Mrs. Travis had denied at her deposition that she and Mr. Travis had any marital problems, and thus defendant had no reason to seek rebuttal evidence. It was not until defendant obtained the medical report of Dr. Curtis which revealed that there were significant discrepancies in the applicant's deposition testimony, upon which the defendant relied.”

1. Dr. Curtis's Report

In his November 22, 1992, report, Dr. Curtis related that decedent's assignment with the police department was as an accident investigator. In that assignment, decedent had experienced many incidents involving violent injury and death. According to decedent's widow, decedent would not discuss his feelings about these events and began suffering extremely severe headaches, for which he was medicated. At some point, decedent was transferred to a desk job. In spite of the stress his work produced, decedent enjoyed being a police officer. However, he had also suffered a series of industrial injuries, orthopedic in nature, and also received counseling for various emotional problems. At the time of his death, decedent had been off work for several weeks with a back problem.

Decedent's widow told Dr. Curtis that “serious problems had developed in their relationship.” Decedent became increasingly hostile and irrational over the years. The couple fought frequently, and the marriage became dysfunctional. Decedent's widow also told Dr. Curtis that decedent had come from a very disturbed family. Decedent's widow did not believe that decedent meant to kill himself but rather thought that the gun that decedent brandished during a marital argument discharged accidentally.

Dr. Curtis concluded, “This is a picture of extreme mental disorder, with death caused by an uncontrolled irresistible impulse due to intense physical and emotional pain originating from physical injury and emotional stress problems within the patient's employment at the LAPD. [¶] Therefore, the death of Mr. Travis should be considered to be of industrial causation.”

2. Dr. Marcus's Report

After interviewing petitioner and reviewing decedent's medical records, Dr. Marcus rendered a 40-page report. Dr. Marcus pointed out that the records of the psychiatrist who had treated decedent, Dr. Murray Brown, did not reflect that decedent was disturbed about his work. Rather, Dr. Marcus emphasized, decedent was upset about his marriage. He noted that decedent's sister and mother had had serious mental problems (e.g., manic-depressive symptoms, as well as bad headaches). Dr. Marcus concluded that decedent's headaches were “hereditary.” His report stated, “Based on his performance appraisals, it appears Mr. Travis's employment was only a passive stage for the progression of his pre-existing condition, which is supported by the fact that he also experienced headaches when he was away from work.” Dr. Marcus asserted that petitioner downplayed the nonindustrial stressors, such as an acutely troubled marriage.

Dr. Marcus also detailed the extensive list of drugs that decedent was at various times prescribed.2 Dr. Marcus stated, “It is amazing that Mr. Travis was able to function at work at all, given the plethora of medications he was prescribed.”

Dr. Marcus further opined that decedent had given “exemplary” service to the City as a police officer and that his work performance negated industrial causation of death. He also noted that records indicated decedent had entertained suicidal ideation and had in fact on previous occasions placed a gun in his mouth. Dr. Marcus further observed, “It appears that Mrs. Travis was instrumental in precipitating Mr. Travis's suicide.” He also concluded, “Mr. Travis's suicide was secondary to significant underlying personality problems and marital discord.” He stated that petitioner's claims for death benefits were “unrealistic and unbelievable” and concluded that decedent's inherited personality tendencies, aggravated by nonindustrial stressors, had caused the death.


Section 3600, subdivisions (a) (5) and (a)(6), preclude compensation for injuries and death which are self-inflicted. However, when the decedent's employment causes a mental condition that leads to the suicide, the suicide is compensable. (Burnight v. Industrial Acc. Com. (1960) 181 Cal.App.2d 816.) It is settled that there is no apportionment in death cases, and death benefits are “payable even though the deceased employee was suffering from a non-industrial, pre-existing disease, if he or she sustained a compensable injury that caused or hastened death.” (1 Hanna, Cal. Law of Employee Injuries and Workmen's Compensation (rev.2d ed. 1994) Death Benefits & Dependency, § 9.01 [[[[1], pp. 9-4.) The Board is the ultimate trier of fact in workers' compensation litigation. Thus, it can reweigh the evidence and reverse the decision and rescind the findings of the WCJ so long as it relies on evidence of “considerable substantiality.” (Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 280-281.)

Despite the fact that our record presents substantial evidence the decedent functioned in a stressful occupation, that of a police officer, with some difficulty and often under medication at least oft-times prescribed for industrial injuries, we might ordinarily affirm the Board's reversal of the WCJ as presented here. That is because, of course, reasonable minds could interpret the psychiatric reports obtained in this case in different ways. We are unable, however, to affirm the Board's interpretation of the facts here if it relied upon evidence that should have been excluded pursuant to section 5402.

We must first address the Board's claim that petitioner did not timely present the issue and has thereby waived it. Citing sections 5815 and 5903, the City asserts that petitioner may not raise this issue for appellate review because petitioner did not file a petition for reconsideration of this issue after the Board rendered its final decision and order on May 21, 1995. We do not agree.

Petitioner expressly presented the issue to the WCJ in conjunction with the first evidentiary proceeding. Petitioner set forth this contention in her brief entitled “ARGUMENT IN SUPPORT OF CASE IN CHIEF AND MOTION TO STRIKE WRITTEN DOCUMENTS ․” In his Opinion on Decision of May 2, 1994, the WCJ did not address this precise issue. Instead, he found Dr. Marcus's report inadmissible pursuant to section 4628, subdivision (j), which requires a physician to sign his report under penalty of perjury. Dr. Marcus had failed to so certify his report.

In granting the City's petition for reconsideration, the Board ordered the WCJ to rehear the matter and to allow Dr. Marcus to correct the procedural defect. In a letter dated October 24, 1994, petitioner again renewed the objection that Dr. Marcus's report was also inadmissible pursuant to section 5402. In his second Opinion on Decision (dated January 26, 1995), the WCJ mentioned section 5402 and its rebuttable presumption without reaching a conclusion. Rather, the WCJ stated that “in any event” he found Dr. Curtis's evidence more credible than that of Dr. Marcus.

Petitioner's answer to the City's second petition for reconsideration also raised the section 5402 issue and noted that the City did not address it in its petition. In its “Opinion ․ and Decision after Reconsideration,” the Board expressly addressed the issue and rejected petitioner's contention. We do not find that petitioner is required to do anything more to preserve the issue for appellate review.

Section 5815 merely states that “[a]ny issue not ․ determined [in an order, decision or award] will be deemed decided adversely as to the party in whose interest such issue was raised.” In the instant case, the Board expressly determined the issue adversely to petitioner. Section 5815 has no application to the review at bench.

Sections 5900 through 5903 merely provide that an aggrieved person may petition the Board for reconsideration. Nothing set forth there requires a petition for reconsideration to be filed in order to petition for a writ of review.3 We therefore conclude that petitioner has properly preserved this issue for our review.

We now address the merits of petitioner's contention.

Section 5402 provides as follows: “Knowledge of an injury, obtained from any source, on the part of an employer, his or her managing agent, superintendent, foreman, or other person in authority, or knowledge of the assertion of a claim of injury sufficient to afford opportunity to the employer to make an investigation into the facts, is equivalent to service under Section 5400. If liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division. The presumption is rebuttable only by evidence discovered subsequent to the 90-day period.” Section 5402 was interpreted for the first time in State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (Welcher) (1995) 37 Cal.App.4th 675. In Welcher, the Court of Appeal held that an employer that fails to reject a claim within the 90-day period following the filing of the claim may not rebut the presumption of compensability with evidence which could have been obtained with the exercise of reasonable diligence within the initial 90-day period. (Id. at p. 684.)

In the instant case, it is uncontroverted that the City did not reject petitioner's claim within the 90-day period. It is also self-evident that Dr. Marcus's report, the evidence upon which the City and ultimately the Board relied, was not produced until after the 90-day period had lapsed. The Board stated that Dr. Marcus's report was not “subject to exclusion under § 5402” because petitioner “had denied at her deposition that she and Mr. Travis had any marital problems, and thus defendant [City] had no reason to seek rebuttal evidence.”

The Board's analysis does not withstand scrutiny. Petitioner's deposition occurred after the 90-day period had expired. The City was therefore, at the time of the deposition, already in breach of its statutory obligations to investigate. Petitioner's deposition testimony had nothing whatsoever to do with the decision of the City not to investigate or to reject petitioner's claim during the 90-day period. Hence, petitioner's claim is presumed to be compensable, and the Board should have excluded Dr. Marcus's report and the evidence presented therein. That being the case, the WCJ's reliance upon Dr. Curtis's report must be sustained, and we must reverse the Board's decision rescinding the WCJ's findings and award.


The Board's order and decision dated and filed April 21, 1995, is reversed. The Board is ordered to enter a new and different order finding petitioner entitled to workers' compensation and benefits.


1.  All further statutory references are to the Labor Code unless otherwise stated.

2.  Dr. Marcus's list of prescribed drugs is as follows: “Afrin, Alupent, Anexsia-D, Anusol, Atarax, Augmentin, Bentyl, Berocca Plus, Ceclor, Cephulac, Compazine, Corticaine, Dalmane, Darvocet, Deconamine, Demerol, Depo-Medrol, Desryel, Digitoxin, Dimetapp, Diprolene, Dolobid, Donnagel, Donnatal, Donnazyme, Duricef, Elavil, Elocon, Entex, Fiorinal, Flexeril, Halcion, Hydrocet, Hydrocodone, Hytone, Imodium, Inderal, Indocin, Lac-Hydrin, Librax, Lidex, Lithium, Lomotil, Lotrisone, Klonopin, Medrol, Methylprednisolone, Midrin, Motrin, Nasalcrom, Parafon Forte, Percodan, Periactin, Phenergan, Prednisone, Robaxin, Rynatan, Seldane, Soma Compound, Suprol, Synalgos, Tavist-D, Tessalon, Tigan, Tofranil, Tolectin, Triavil, Trilafon, Trimox, Tylenol with Codeine, Vancenase, Velosef, Vicodin, Vistaril, Vivactil, Xanax and Xylocaine.”

3.  Section 5904 deems objections waived that are not presented in a petition for reconsideration where such a petition is filed. We do not interpret this section as otherwise limiting appellate review.

BOREN, Presiding Justice.

FUKUTO and NOTT, JJ., concur.

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