Parker, Kern, Nard & Wenzel Successfully Defends Psychiatric Claim Following Suicide
The following is a brief summary of a claim successfully defended by David H. Parker Parker, Kern, Nard & Wenzel through trial, reflecting again that common myths about workers’ compensation trials are not completely accurate. Judges do find in favor of employers, and defendants can prevail at trial before the Workers’ Compensation Appeals Board in spite of Labor Code section 3202 mandate when a complete trial is conducted based on law supported by the facts and evidence supporting the defense.
The case is still pending administrative appeal as of the date of this writing (4/28/06):
SUMMARY OF MATERIAL FACTS:
On May 30, 2001, decedent died of a self-inflicted gunshot wound to the head. The death occurred at the decedent’s home.
It was undisputed that the decedent was employed for less than six months, having resigned on March 26, 2001. While there was some dispute as to the actual last date worked, the evidence reflects that applicant worked no more than three (3) days total, all of which were spent participating in training and orientation.
The decedent’s wife filed an Application for Adjudication of Claim (Death Case) on behalf of herself and decedent’s two children (Applicants) on August 28, 2001. The claim alleged that the decedent’s death arose out of and during the course of employment to applicant’s psyche as a result of cumulative emotional stress via cumulative trauma ending March 21, 2001. This was amended to reflect cumulative trauma through March 28, 2001 at Trial. Applicant’s attorney asserted, amongst other arguments, that applicant suffered psychiatric injury as a result of a “sudden and extraordinary event,” namely that either a suicide or an attempted suicide had taken place in the facility in which he was training, although there was no proof he actually witnessed or contemporaneously heard of such an “event.”
Settlement exposure was a bare-minimum of $165,000 inclusive of burial expenses. The bottom-line demand for settlement pre-trial was $50,000. The employer elected to proceed to trial after having been fully informed of all settlement demands, discussions and options.
The matter proceeded to Trial on the issues of injury arising out of and during the course of employment. The Trial proceeded on February 15, 2006.
Liability for compensation is limited to instances where an injury or death is not intentionally self-inflicted and where an employee has not willfully and deliberately caused his/her own death. Labor Code Section 3600(a)(5)-(6). Absent evidence that suicide is the product of an irresistible impulse or an industrially caused compulsion, the Board will be upheld in denying death benefits. Giba v. WCAB (W/D-1982) 47 C.C.C. 1023; Wells v. WCAB (W/D-1985); 50 C.C.C. 599 Trumble v. WCAB (W/D-1999) 64 C.C.C. 1187.
The facts of the Wells case are remarkably similar to the claim litigated herein. Applicant in Wells filed a claim for workers’ compensation death benefits following her husband’s suicide via self-inflicted gunshot wound. Wells at Page 600. There was evidence that the decedent’s job was stressful and, beyond the facts in the instant case, that there was no significant stress in the decedent’s personal life. Id. at Page 599.
The Board in Wells found that although the stress of Wells’ employment was a cause of his suicide attempt, Wells intentionally shot himself and his death was willfully and deliberately caused by himself. Id. at Page 600. The Board noted that work stress had not manifested itself in the form of an injury until such time as the decedent attempted the act of suicide and therefore the injury was the result of the suicide attempt and “not the other way around.” Id. The Board noted that the burden of proof did not shift to defendant.
PKNW argued at trial of the instant case that the Wells rationale was controlling. It is unfortunate, but decedent chose to take his own life. Decedent may have had some stress related to his change of occupation, but these potential stresses were not the actual cause of his death or of any injury. As in Wells, the injury was the result of a volitional suicide attempt. PKNW successfully argued on behalf of the employer that Applicant did not present sufficient evidence at trial to prove by a preponderance of the evidence that decedent’s actions anything but volitional.
PKNW further argued that Applicant had not met its burden of proof pursuant to Labor Code Section 5705 sufficient to prove that decedent’s death was not intentionally self-inflicted and was not willfully and deliberately caused by his own volitional act.
Labor Code Section 3208.3(b)(1) mandates that applicant carries the burden of proving by a preponderance of the evidence that actual events of employment were predominant as to all causes of the psychiatric injury. “The Legislature’s express intent in enacting Labor Code Section 3208.3 was to establish a new and higher threshold of compensability for psychiatric injury.” Hansen v. WCAB (1993) 58 C.C.C. 602, Lockhead Martin v. WCAB (2002) 67 C.C.C. 245. Applicants have failed to meet their burden.
PKNW argued and proved at trial that the record reflected that decedent reported for no more than three (3) days of training and orientation. The only witness who was present during the entire period of decedent’s employment testified that he did not recall anything abnormal in regards to his interactions with Applicant.
A religious minister testified on behalf of the applicant. On cross-examination by PKNW, the minister conceded that a few days before decedent’s death, decedent indicated that he was “depressed. He further testified on cross-examination that decedent “felt he was a failure as a husband and provider.” The minister also testified that Mr. and Mrs. Applicant were having financial troubles and that decedent did not find the job to be what he thought it would be. The Applicant (decedent’s wife) and father further confirmed the financial difficulties, conceding on cross-examination that the family was forced into filing for Bankruptcy in March of 2001.
PKNW retained a qualified medical evaluator who credibly diagnosed and reported decedent suffered from long-standing, recurring clinical depression and found that the predominant cause threshold had not been met in this instance. The medical conclusions were supported by the testimony and other admissible evidence offered at trial.
While sympathetic to the family’s struggles, PKNW argued that Applicants (the decedent’s mother and children) failed to meet their burden to establish that the actual events of decedent’s three days of employment with the employer counter balanced a history of depression and financial difficulties, such as to be predominant as to all causes combined of the psychiatric injury as required by Labor Code Section 3208.3(b)(1).
Under Labor Code Section 3208.3(d) “no compensation shall be paid . . . unless the employee has been employed by that employer for at least six months.” Applicants, through their attorney, argued that the decedent had suffered a psychiatric claim of injury that occurred as a result of a sudden and extraordinary event after just three (3) days of training and orientation.
The sudden and extraordinary event was asserted to be related to “the effect that he might be exposed to jail suicide incidents.” Decedent apparently indicated that he “heard a radio call at work on Wednesday during training involving an attempted suicide that made the training too real for him.”
A percipient witness to decedent’s entire period of employment testified that although suicide occurrences might occur once every six months to a year, he did “not recall anything abnormal about his interactions with the decedent during the course of the decedent’s training.” The witness testified further, “he [did] not recall any suicide or suicide attempts having occurred during that time.”
The record reflects that decedent last worked and tendered his resignation on March 26, 2001. PKNW did not dispute a jail suicide subsequent to the applicant’s last date of employment, but asserted that the evidence reflected the suicide did not come to the attention of applicant until the weekend following articles in a major metropolitan newspaper on March 27, 2001 and March 29, 2001.
PKNW asserted that the trial record did and does not support a finding of an industrial injury. There was and is insufficient record of any sudden and extraordinary event during the course of the decedent’s employment which caused psychiatric injury and, ultimately, a compensable consequence of suicide. At best, the record supported numerous factors from various sources that caused decedent to become depressed to the point of suicide. The record contains evidence that other non-industrial stressors caused decedent’s untimely death including, but not limited to, “biological factors and other environmental influence” described by defense QME reporting.
While decedent’s untimely death was and is a terrible tragedy, unfortunately, applicant could not and did not carry the burden of proof required to find the suicide of Applicant to be a death which arose out of and during the course of employment with the employer.
A copy of the Workers’ Compensation Administrative Law Judge’s Final Order is attached hereto as a .pdf file for viewing.