BACKGROUND
As a result of a multitude of highly publicized abuses in the California Workers' Compensation system, the state legislature passed a sweeping reform bill in 1993 to define the criteria for stress claims more objectively and narrowly. This was necessary because prior to 1993, the criteria were largely subjective. If you felt you were stressed on the job (or even after you were fired), you could apply for stress disability benefits and receive at least some award for nuisance value. This lead to an astronomical increase in stress claims during the eighties. A nominal 1990 reform bill required a ten percent threshhold of industrial to nonindustrial stress and actual events of employment to be necessary for a stress disability award but this attempt failed since it wasn't very difficult to find that one's occupation was responsible for ten percent of one's stress. By the early nineties, the California business community demanded more meaningful reform and this was the result. This has been largely successful, although there are still problems with the wording of the law which allow aggressive claimants and their attorneys broad latitude in defining such concepts as "good faith".
California Labor Code Sections 3208.3, 3209.3.
Labor Code 3208.3 Psychiatric injuries; establishment of compensability; minimum employment requirements
(a) A psychiatric injury shall be compensable if it is a mental disorder which causes disability or need for medical treatment, and it is diagnosed pursuant to procedures promulgated under paragraph (4) of subdivision (j) of Section 139.2 or, until these procedures are promulgated, it is diagnosed using the terminology and criteria of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Third Edition- Revised, or the terminology and diagnostic criteria of other psychiatric diagnostic manuals generally approved and accepted nationally by practitioners in the fields of psychiatric medicine.
(b) (1) In 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 predominantly and to all causes combined of the psychiatric injury.
(2) Notwithstanding paragraph (1), in the case of employees whose injuries resulted from being a victim of a violent act or from direct exposure to a significant violent act, the employee shall be required to demonstrate by a preponderance of the evidence that actual events of employment were a substantial cause of the injury.
(3) For the purpose of this section, "substantial cause" means at least 35 to 40 percent of the causation from all sources combined.
(c) It is the intent of the Legislature in enacting this section to establish a new and higher threshold of compensability for psychiatric injury under this division.
(d) Not withstanding any other provision of this division, no compensation shall be paid pursuant to this division for a psychiatric injury related to a claim against an employer unless the employee has been employed by that employer for at least six months. The six months of employment need not be continuous. This subdivision shall not apply if the psychiatric injury is caused by a sudden and extraordinary employment condition. Nothing in this subdivision shall be construed to authorized an employee, or his or her dependents, to bring and action at law or equity for damaged against the employer for a psychiatric injury, where those rights would not exist pursuant to the exclusive remedy doctrine set forth in Section 3602 in the absence of the amendment of this section by the act adding this subdivision.
(e) Where the claim for compensation is filed after notice of termination or layoff, including voluntary layoff, and the claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation shall be paid unless the employee demonstrates by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury and one or more of the following conditions exist:
(1) Sudden and extraordinary events of employment were the cause of the injury.
(2) The employer has notice of the psychiatric injury under Chapter 2 (commencing with Section 5400) Prior to the notice of termination or layoff.
(3) The employee's medical records compiled prior to notice of termination or layoff contain evidence of treatment of the psychiatric injury.
(4) Upon a finding of sexual or racial harassment by any trier of fact, whether contractual, administrative, regulatory, or judicial.
(5) Evidence that the date of injury, as specified in Section 5411 or 5412, is subsequent to the date of the notice of termination or layoff, but prior to the effective date of the termination or layoff.
(f) For purposes of this section, and employee provide notice pursuant to Sections 44948.5, 44949,4451,44955, 44955.6, 72411, 87740 and 87743 of the Education Code shall be considered to have been provided a notice of termination or layoff only upon a district's final decision not to reemploy that person.
(g) A notice of termination or layoff that is not followed within 60 days by that termination or layoff shall not be subject to the provisions of this subdivision, and this subdivision shall not apply until receipt of a later notice of termination or layoff. The issuance of frequent notices of termination or layoff to an employee shall be considered a bad faith personnel action and shall make this subdivision inapplicable to the employee.
(h) 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.
(i) When a psychiatric injury claim is filed against an employer, and an application for adjudication of claim is filed by an employer of employee, the division shall provide the employer with information concerning psychiatric injury prevention programs.
Labor Code 3209.3. "Physician"; "psychologist"; request for collaboration
(a)"Physician" includes physicians and surgeons holding an M.D. or D.O. degree, psychologist, optometrists, dentists, podiatrists, and chiropractic practitioners licensed by California state law and within the scope of their practice as defined by California state law.
(b) "Psychologist" means a licensed psychologist with a doctorate degree in psychology and who either has at least two years of clinical experience in a recognized health setting, or has met the standards of the National Register of the Health Service Providers in a Psychology.
(c) When treatment or evaluation for an injury is provided by a psychologist, provision shall be made for appropriate medical collaboration when requested by the employer or the insurer.
(d) "Acupuncturist" means a person who holds an acupuncturist's certificate issued pursuant to Chapter 12 (commencing with Section 4925) of Division 2 of the Business and Professions Code.
(e) Nothing in this section shall be construed to authorize acupuncturists in the medical treatment of workers' compensation cases and shall report his or her findings to the Legislature on or before December 31, 1995.