CLAY v. WORKERS COMPENSATION APPEALS BOARD (1988)

In this review proceeding, we conclude respondent Workers' Compensation Appeals Board (Board) erred in rescinding the finding of the workers' compensation judge (WCJ) that petitioner (applicant) sustained psychiatric injury arising out of and in the course of his employment from June 1984 through August 23, 1985.

Applicant was employed by defendant Northrop Corporation (Northrop) from September 1977 through April 23, 1985.   He admittedly sustained industrial injury to his back and lower extremities on September 29, 1983.   He returned to work in June 1984.   On August 23, 1985, while he was in the process of collecting his final paycheck, he collapsed and was hospitalized for psychiatric reasons.   He claims his psychiatric injury was caused by the cumulative stress and strain of his employment in the period of June 1984 through August 23, 1985.

Applicant testified that prior to his September 29, 1983 injury, he was employed as a structural mechanic on the assembly line, helping to build F–18 and 747 aircraft.   When applicant returned to work in June 1984, Dr. Schiffman imposed work restrictions of no repetitive stooping, bending, pushing, pulling or lifting, and no long periods of standing;  however, Northrop's physician reported applicant was able to return to work without restrictions.   Applicant presented Dr. Schiffman's work restriction slip to Northrop, and was told to report to the subassembly work department where the supervisor would decide whether applicant was to work.   Applicant was asked to work on materials consisting of titanium and steel.   The work involved pushing and pulling, activities from which he was medically restricted.   He was assigned to subassembly work on small parts in the bench area, and worked there from June 1984 through August 23, 1985.

Applicant testified further the subassembly work required prolonged standing and much stooping, bending, pushing and pulling.   His supervisors “harassed [him] all the time because he wasn't able to produce the quantity and quality of work because of his injury to his back.”   Two supervisors, Mr. Burfict and Mr. Escamillia, told him that “as far as [they were] concerned, applicant had no restriction and, unless he was able to bring up the quantity and quality of his work, he would be terminated.”   Despite his trouble with the supervisors, applicant continued working on subassemblies.   He stood eight hours a day drilling holes through titanium and steel, which are very hard materials.   The amount of pressure and the pushing and pulling required in drilling titanium resulted in pain in his back, arms, legs and feet, causing him to be “depressed all the time.”

Applicant testified further Northrop had a policy that for 90 days after an injured employee returned to work, the employee would have to see “company doctors” and would have to pay an “outside doctor” himself.   Northrop's policy of preventing him from seeing Dr. Schiffman further “upset” applicant.   His supervisors' view, he had no work restriction, further affected his state of depression;  nevertheless, he continued “doing the best he could and was told that he would be fired if he couldn't do the work.”

Applicant testified, “It was pure hell every day, coming in every day and knowing that he was doing his best and they weren't satisfied.   It bothered his sleep and he became impotent.   He sought medical treatment ․ from Dr. Albert Sheade ․ because of problems regarding his impotency and sleep.   He was started out on hormone shots.   Dr. Sheade thought it would clear up, but it didn't.”   Dr. Sheade wrote a letter to Northrop suggesting a work “change would be beneficial because of stress and strain,” but no change occurred.

Applicant also testified that in the weeks before August 1985, he had difficulties with supervisors Burfict, Escamillia, Rodon and Gaw.   Applicant was told that disciplinary action would be taken because he was drilling holes too large and was later told discipline would be imposed because he was not specifically following his job instruction card.   On the latter occasion, Escamillia told applicant to sit at a table until Escamillia returned, and applicant sat at the table for an hour waiting for Escamillia to return.   When Escamillia returned with Rodon, they told applicant to remove all company tools from his tool box and they would escort him to the company tool store to turn in the tools.   After applicant turned in the tools, they gave him a clearance slip and escorted him to the exit door, where he was given a slip to take to the payroll office four miles away, and told him to go there and get his final paycheck.   This made him very angry and upset because in his 17 years of employment in the aircraft industry with Boeing, Rockwell International, McDonnell Douglas and Northrop, he had “never had any experience like this.”   He was so depressed he saw no reason to live, and he thought of parking his car on the railroad track or driving the wrong way onto an exit ramp of the freeway.   As he started to cross in front of a “10–wheeler,” he thought he should “take their li[ves] instead.”   Then he drove to the personnel office and presented the payroll slip.   The personnel lady told him to step aside while she telephoned his work station.  “[T]he last thing he remembers as he stepped aside was falling to the ground.   He remembers attempting to step to the side and getting short of breath and falling to the floor.   The next thing he remembered was waking up in the Robert F.K. Memorial Hospital.”

Applicant testified further that prior to his 1983 industrial injury, he had only been “written up once before but not disciplined.”   When he returned to work following the injury, he was disciplined for going to an automatic bank teller on the Northrop premises, even though other employees used the teller.   He was also disciplined for blowing chips into the walkway, a practice which had been permitted before he sustained the injury.   That disciplinary notice stated he was “not following a directive order or creating disharmony in the department.”   The harassment and disciplinary threats by his supervisors were “very very depressing to him and he fought it as best he could.   He filed a grievance and took it as far as he could.   He exhausted all of those means to no avail.   It was hell working in that department.   He was doing the best as he could.   This manifested itself in a psychological problem which made him insecure.”

Applicant testified that “[w]hen he woke up in the Robert K. Hospital, he was very sorry that he hadn't killed himself.   He didn't want to wake up.”   During the month he was hospitalized, he was treated every day by Dr. Katakia, the hospital staff psychiatrist.   Dr. Katakia explained that applicant had passed out from stress and strain, and she committed him to the psychiatric lock down part of the hospital because of his thoughts of suicide and homicide.   After applicant left the hospital, he continued weekly treatment by Dr. Katakia, and was examined and treated by Dr. Cherkas, a psychiatrist.   Applicant's divorce did not give him problems, and his family problems did not require him to see a psychiatrist.

Both Drs. Katakia and Cherkas opined applicant sustained psychiatric injury from the stress and strain of his employment.

Dr. Katakia testified she treated applicant for major depression resulting from the stress and strain of his work after he returned from his 1983 industrial injury, including the repeated, indiscreet verbal attacks and sarcasms by his supervisors and applicant's sufferings from the many symptomatologies resulting from the industrial injury.

Dr. Solow, reporting for Northrop, opined applicant was suffering from depression over his termination from work because he was buying out his ex-wife's interest in their house and he was caring for his father, and Dr. Solow could find no evidence applicant was subjected to any harassment or discrimination or that applicant suffered from any stress and strain as a result of his work.   Dr. Solow concluded applicant reacted to his termination, which was the culmination of his having not performed the duties of his job and having received all along a series of warnings about his work and other infractions, and that applicant did not have a disability by reason of psychiatric injury.   Dr. Solow “believed” applicant had a chronic preexisting psychological disorder which caused a minimal to slight disability causing him to be hypersensitive to criticism and which caused him to be apprehensively alert to any signs of derogation.

Mr. Escamillia testified that when he reprimanded applicant for not wearing safety glasses and for not using the blower, applicant became “loud and uncooperative and said that everybody was using the blower”;  applicant was also reprimanded once for being out of the work area without permission;  and the item on which applicant had drilled the wrong size of holes was not repairable.

The WCJ, viewing the entire record and crediting applicant's testimony and the opinions of Drs. Katakia and Cherkas, found applicant sustained industrial psychiatric injury as a result of the stress and strain arising out of his employment by Northrop during the period from June 1984 through August 23, 1985, and as a result of his September 29, 1983 industrial injury.

The WCJ opined and reported that in applicant's 17 years of employment in the aircraft industry, applicant never had an experience such as the events that led to his termination on August 23, 1985.   When applicant returned to work in June 1984, following the admitted industrial injury of September 29, 1983, he was subject to work restrictions imposed by Dr. Schiffman.   Nevertheless, applicant's supervisor concluded applicant was not subject to work restrictions, he was assigned to work requiring physical activities exceeding the work restrictions, he was “harassed all the time” because he was unable to produce the quantity and quality of work required and he was threatened with termination if he was unable to improve the quantity and quality of his work.   He was also threatened with disciplinary action as to the manner in which he performed his work, and suffered pain from the disability he incurred from the prior industrial orthopedic injury in striving to do his best at physical work exceeding the restrictions.   As a result of the harassment, threats and pain, applicant perceived the work as “pure hell every day.”

The WCJ also noted the stress and strain to which applicant was subjected on the day he was terminated.   The WCJ found the opinions of Drs. Cherkas and Katakia that the stress and strain of applicant's employment caused his psychiatric condition credible and persuasive in conjunction with the WCJ's interpretation of the evidence.   The WCJ concluded the stress and strain on the day of termination could not be separated from the stress and strain experienced by applicant between June 1984 and August 23, 1985;  and hence, applicant's psychiatric disability was industrially caused prior to his termination on August 23, 1985.

The WCJ concluded his report by stating:  “As the Trier of Fact, I evaluated the demeanor, manner and credibility of the witnesses, including the applicant.   In view of the entire record, I found applicant's testimony to be credible regarding his stress related work experiences, as set forth in my attached Opinion On Decision which states the basis for my decision.”

In a two-to-one decision, the Board granted reconsideration, rescinded the WCJ's finding of industrial psychiatric injury, and found applicant's psychiatric disability nonindustrial.

The Board majority viewed limited portions of applicant's testimony and the opinions of Drs. Cherkas and Katakia, and viewed more extensively the testimony of supervisor Escamillia and the opinion of Dr. Solow.   Viewing the record in that light, the Board majority concluded the evidence does not support the WCJ's finding that applicant sustained a psychiatric injury, finding that the employer did not place demands on applicant exceeding his work restrictions and did not discipline him for inability to perform tasks he was physically unable to perform.

The Board majority opined further that the medical reports of Drs. Katakia and Cherkas, relied upon by the WCJ to find industrial psychiatric injury, did not constitute substantial evidence because the reports accepted applicant's statements he was being harassed for inability to perform his work properly because of the effects of his prior orthopedic industrial injury, and applicant's testimony on this point is not supported by the other evidence.

The Board majority concluded:  “A psychological reaction that results from a termination of employment is not an injury that arises out of and occurs in the course of employment.  (Georgia Pacific Corp. v. Workers' Comp. Appeals Bd. (Byrne) [1983] 144 CA 3d 72 [192 Cal.Rptr. 643], 48 Cal.Comp.Cases 443).   Here, the evidence established that the reaction applicant had after his termination was the result of his termination and the accompanying financial problems that he had.   As such, the psychological reaction is non-industrial.”

The dissenting member of the Board opined:  “The majority is actually overturning the WCJ on a credibility determination.   The WCJ has found the applicant's testimony as to his stress ․ to be credible while the majority is relying on the conflicting testimony of the applicant's supervisors.   Since the WCJ is in a better position than is the Board to evaluate the credibility of the witnesses, I would defer to his credibility finding.  [¶] But the issue is not so much of whether applicant's version is more credible than that of the supervisors, but is rather whether applicant actually perceived himself as being harassed.   I read the WCJ's Opinion on Decision as indicating that he found that applicant actually believed that he was being harassed․  Therefore, the psychological reaction ․ would arise out and occur in the course of employment.”

 It is well established that an employee's claim for psychiatric injury may be founded on honest subjective perception of job harassment which interacts with a preexisting condition so as to cause job stress, providing the employment is a positive factor in causing the injury.  (Albertson's, Inc. v. Workers' Comp. Appeals Bd. (1982) 131 Cal.App.3d 308, 182 Cal.Rptr. 304.)   The proper focus of inquiry is not how much stress should be felt by an employee in his work environment, based on a “normal” reaction to it, but how much stress is felt by the individual worker reacting uniquely to the work environment, the individual worker's perception of the circumstances being “what ultimately determines the amount of stress he feels.”  (Id., at p. 314, 182 Cal.Rptr. 304.)

The crucial issue in the instant case is whether the Board erred in rescinding the WCJ's finding that applicant sustained industrial psychiatric injury from the stress and strain of his employment.   Resolution of this issue entails discussion of the Board's power on reconsideration.

“ ‘[A]lthough the board is empowered to resolve conflicts in the evidence [citations], to make its own credibility determinations [citations], and upon reconsideration to reject the findings of the [WCJ] and enter its own findings on the basis of its review of the record [citations], nevertheless, any award, order or decision of the board must be supported by substantial evidence in the light of the entire record [citations].’ ”  (Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 280–281, 113 Cal.Rptr. 162, 520 P.2d 978, original emphasis;  Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 317, 90 Cal.Rptr. 355, 475 P.2d 451;  LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 637, 83 Cal.Rptr. 208, 463 P.2d 432.)

“The foregoing standard is not met ‘by simply isolating evidence which supports the board and ignoring other relevant facts of record which rebut or explain that evidence.’ ”  (Lamb v. Workmen's Comp. Appeals Bd., supra, 11 Cal.3d at p. 281, 113 Cal.Rptr. 162, 520 P.2d 978;  see Garza v. Workmen's Comp. App. Bd., supra, 3 Cal.3d at p. 317, 90 Cal.Rptr. 355, 475 P.2d 451;  Western Electric Co. v. Workers' Comp. Appeals Bd. (1979) 99 Cal.App.3d 629, 645, 160 Cal.Rptr. 436.)

When the WCJ's finding of compensable injury is supported by solid, credible evidence, it is to be accorded great weight by the Board and should be rejected only on the basis of contrary evidence of considerable substantiality.   (Lamb v. Workmen's Comp. Appeals Bd., supra, 11 Cal.3d at p. 281, 113 Cal.Rptr. 162, 520 P.2d 978;  Garza v. Workmen's Comp. App. Bd., supra, 3 Cal.3d at pp. 318–319, 90 Cal.Rptr. 355, 475 P.2d 451.)   The WCJ's findings are entitled to great weight because the WCJ has the opportunity to observe the demeanor of the witnesses and weigh their statements in connection with their manner on the stand.  (Garza v. Workmen's Comp. App. Bd., supra, 3 Cal.3d at p. 319, 90 Cal.Rptr. 355, 475 P.2d 451.)

When the WCJ has relied upon solid, credible evidence to make a wholly supported finding of compensability, the Board may not avoid its obligation to give great weight to that finding by ignoring the evidence on which it is based, since, in doing so, the Board renders a decision which is not supported by substantial evidence in the light of the entire record.  (Lamb v. Workmen's Comp. Appeals Bd., supra, 11 Cal.3d at p. 283, 113 Cal.Rptr. 162, 520 P.2d 978.)

Factual findings of the Board are not supported by substantial evidence in light of the entire record where such findings are in conflict with all of the evidence, based upon inferences which cannot be fairly drawn from the evidence, based on evidence lacking probative force, based on a purely “ ‘fanciful conclusion,’ ” or based on the creation of nonexistent evidence or the creation of a conflict in the evidence that does not otherwise exist.  (Insurance Co. of North America v. Workers' Comp. Appeals Bd. (1981) 122 Cal.App.3d 905, 910–911, 176 Cal.Rptr. 365.)

 In resolving the petition for writ of review, we must determine whether the evidence, when reviewed in the light of the entire record, supports the Board's decision.  (Universal City Studios, Inc. v. Workers' Comp. Appeals Bd. (1979) 99 Cal.App.3d 647, 656, 160 Cal.Rptr. 597;  see National Convenience Stores v. Workers' Comp. Appeals Bd. (1981) 121 Cal.App.3d 420, 424, 175 Cal.Rptr. 378.)   We are not bound, however, to accept the Board's factual findings where they are illogical, unreasonable, or improbable (Insurance Co. of North America v. Workers' Comp. Appeals Bd., supra, 122 Cal.App.3d at p. 911, 176 Cal.Rptr. 365), where they do not withstand scrutiny (Duke v. Workers' Comp. Appeals Bd. (1988) 204 Cal.App.3d 455, 460, 251 Cal.Rptr. 185), or where we discern an inequitable result when the record is examined for fairness, reasonableness and proportionality in the overall scheme of the workers' compensation law and the purposes sought to be accomplished by that law.  (National Convenience Stores v. Workers' Comp. Appeals Bd., supra, 121 Cal.App.3d at p. 424, 175 Cal.Rptr. 378;  Universal City Studios, Inc. v. Workers' Comp. Appeals Bd., supra, 99 Cal.App.3d at pp. 658–659, 160 Cal.Rptr. 597.)¹

Finally, where the Board's decision is not within the realm of what a reasonable trier of fact could find, the decision is not supported by substantial evidence and must be annulled.

The Workers' Compensation Appeals Board should be advised that although its right of review empowers it, under appropriate circumstances, to resolve conflicts in evidence, make its own credibility determinations and enter its own findings, this power may not be used to emasculate the role of the WCJ as fact finder.

For the past 50 years, the appellate courts have proclaimed that the fact finding referees are in the best position to evaluate credibility (In re Atchley (1957) 48 Cal.2d 408, 310 P.2d 15), and that their findings are entitled to great weight (Garza v. Workmen's Comp. App. Bd., supra, 3 Cal.3d 312, 90 Cal.Rptr. 355, 475 P.2d 451).   Using this scale analogy, the WCJ's credibility finding cannot be overturned unless its side of the scale is lightened by a determination that the evidence upon which it relied is inherently incredible;  or conversely, the board's side of the scale must be supported by a greater amount of credible evidence than was relied on by the WCJ.

If the scales are evenly balanced with credible determinations, then the WCJ's findings must prevail or it cannot be said that those findings have been given great weight.

 Without question, in the instant case, the Board on reconsideration did not base its findings on a review of the entire record, but isolated and credited defense evidence not credited by the WCJ;  the evidence relied on by the Board was not of considerable substantiality in light of the entire record;  the Board did not give great weight to the WCJ's findings, which were supported by solid, credible evidence;  and the Board did not give great weight to the WCJ's credibility determinations where the WCJ, and not the Board, had the opportunity to observe the demeanor of the witnesses and weigh their statements in connection with their manner on the stand.   Moreover, we conclude the Board's findings do not withstand scrutiny in light of the entire record;  are not within the realm of what a reasonable trier of fact could find;  lead to an inequitable result;  and are unreasonable, unfair and inconsistent with the overall scheme and purposes of the workers' compensation law.

Consequently, the Board's decision must be annulled and the matter remanded to the Board with directions to deny the petition for reconsideration and reinstate the WCJ's findings.

The December 14, 1987, order granting reconsideration, and the December 30, 1987 decision after reconsideration by respondent Workers' Compensation Appeals Board are annulled;  and the matter is remanded to the Board for further proceedings consistent with the views expressed herein.

FOOTNOTES

1.   The underlying policy of the workers' compensation statutes and their constitutional foundation in California (Cal. Const., art. XIV, § 4), as well as the recurrent theme of countless appellate decisions, has been one of a pervasive and abiding solicitude for the worker.  (Webb v. Workers' Comp. Appeals Bd. (1980) 28 Cal.3d 621, 626, 170 Cal.Rptr. 32, 620 P.2d 618;  Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 233, 110 Cal.Rptr. 144, 514 P.2d 1224;  Industrial Indemnity Co. v. Workers' Comp. Appeals Bd. (1985) 165 Cal.App.3d 633, 638, 211 Cal.Rptr. 683.)

ARLEIGH M. WOODS, Presiding Justice.

McCLOSKY and GOERTZEN, JJ., concur.