The Psyche Claim, the 132a Allegation, and the Return-to-Work Standoff
A 44-year-old customer service representative has an accepted cervical strain from a keyboard-intensive job. Six months into treatment, her treating physician adds a psychological condition, major depressive disorder, attributing it to chronic pain and to a supervisor's comment that she was 'faking it' in front of coworkers. The employer has 55 employees and offers a modified duty position at the same pay but in a different department, which the employee refuses because she says the supervisor harasses her. The adjuster has the psychiatric report, the supervisor's denial, and two coworker statements. The employee files a 132a allegation claiming the comment was retaliatory. The treating physician has not declared her permanent and stationary.
1. Should the adjuster accept the psychological condition as compensable? Analyze the causation standard.
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A psychological injury is compensable when it is caused by the industrial injury or by a sudden and extraordinary employment condition. Here the claimed cause is the industrial cervical strain and chronic pain, which is a legitimate basis for a psyche claim if the psychiatric report establishes that the depression is predominantly caused by the industrial injury rather than by the supervisor's comment alone. The supervisor's 'faking it' comment is a personnel action or a workplace interaction; a psyche claim based solely on a personnel action is generally not compensable, but the report attributes the condition to chronic pain, which is a valid industrial cause. The adjuster should accept the psyche condition if the report is substantial and well-reasoned, and should not deny solely because the comment exists. The adjuster should obtain a supplemental report clarifying the relative contribution of the pain versus the comment.
2. How should the adjuster evaluate the 132a allegation, and what is the exposure?
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Labor Code 132a prohibits discrimination against an injured worker for filing a claim or for the injury itself. The employee must show she was singled out and treated differently because of her injury or claim. The supervisor's comment, if proven, is evidence of animus, but a single comment may not establish discriminatory intent; the adjuster should compare how similarly situated employees were treated and whether any adverse action (denial of benefits, failure to accommodate, termination) followed. The exposure includes reinstatement, back pay, and a penalty of up to 50% of the compensation due, up to $10,000, plus attorney fees. The adjuster should preserve the coworker statements and the supervisor's denial, avoid any further adverse action against the employee, and route the 132a allegation to defense counsel because it is a separate proceeding before the WCAB.
3. The employee refuses the modified duty position. What are the consequences for temporary disability and for the employer's return-to-work obligation?
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If the treating physician has released the employee to the modified duty position and the position is at the same pay and within the work restrictions, the employee's refusal may terminate temporary disability benefits because the employer has made a valid offer of modified work. The adjuster should confirm the offer is in writing, describes the duties and restrictions, and is at the same or greater pay. If the offer is valid and the employee refuses without medical justification, the adjuster may stop TTD and document the refusal. However, the employee's claim of harassment by the supervisor complicates the analysis: if the position requires contact with the supervisor, the adjuster should consider whether a different placement is feasible before cutting off benefits. The employer's return-to-work obligation is satisfied by a valid offer, but the adjuster should not use the offer as retaliation. If the employee later becomes permanent and stationary, the valid offer may also affect voucher eligibility.