California Appellate Lawyer Blog

Dutra v. Mercy Medical Center Mt. Shasta (filed September 26, 2012) 2012 DJDAR 13447, plaintiff Dutra claimed defendant wrongfully terminated her employment in violation of public policy codified in California Labor Code section 132a, which generally prohibits discharge of an employee for filing a workers'compensation claim. After jury selection, the trial court granted defendant's motion to dismiss the claim because the Workers' Compensation Appeal Board (WCAB) had exclusive jurisdiction to adjudicate the claim; plaintiff declined the court's offer allowing amendment of her complaint. The Court of Appeal, Third Appellate District, affirmed.

The appellate court rejected plaintiff's legal argument that the California Supreme Court, in City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, provided that a plaintiff could pursue common law remedies as an alternative to the Labor Code's vesting of jurisdiction in the WCAB. As the court put it, "City of Moorpark does not go as far as plaintiff suggests. " While the high court did say a plaintiff is not precluded from pursuing remedies under FEHA statutory provisions and common law wrongful termination, the other half of the analysis in that case was to decide whether a violation of FEHA could serve as a basis for a claim of wrongful termination in violation of public policy. On this point, the Supreme Court wrote that when a statute stating a public policy also includes certain substantive limitations in scope and remedy, these limitations also circumscribe the common law cause of action.

Here, Section 132a has the limitation of establishing a specific procedure and forum for addressing a violation with limited remedies. A claim in common law tort bootstrapping a violation of this statute would give a broader remedy than the statute allows. To the extent that this plaintiff claims the wrong committed against her fell outside of the "compensation bargain," she could have alleged different causes of actions which she chose not to.

I see three important lessons that are suggested by this opinion. First, if you seek a common law remedy, do not try to infuse it with a statutory theory of recovery that is limited in scope, and may end up getting the cause of action dismissed. Second, never give short shrift to a trial court's invitation to amend your complaint. And third, more generally, if you wish to quote from a case opinion, make sure you have the proper context.

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Labor Code section 3208.3, subdivision (h), states that an employer is not required to compensate an employee for a psychiatric injury substantially caused by a lawful, nondiscriminatory, good faith personnel action. What about such a claim of injury in the form of migraine headaches?

In County of San Bernardino v. Workers' Comp. Appeals Bd. (filed March 2, 2012) 2012 DJDAR 2833, County employee John McCoy claimed he suffered migraine headaches as a result of on-the-job stress caused by friction with his supervisor. The WCJ found the injury not compensable, agreeing with County's argument that his psychiatric injuries were caused by lawful, nondiscriminatory, good faith personnel action. The WCAB granted reconsideration to McCoy and concluded section 3208 (h) did not bar compensation for migraines. Then in its denying the further reconsideration request of County, the board noted migraine headaches are not classified by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders as a "psychiatric injury."

County petitioned for Writ of Review. The petition was granted by the Court of Appeal, Fourth Appellate District, Division Two, which annulled the board's order.

The appellate court felt guided by legislative intent rather than the non-inclusion of migraine headaches in the cited psychiatric manual category. It viewed the intent of 3208.3 (h) to exclude from compensability claimed injuries directly and solely resulting from psychological suffering due to good-faith actions because the subjectivity of such injury claims bears a great potential for fraud and abuse. Telling in this case was the fact that McCoy added his claim of migraine headaches on the first day of his trial.