• The “passive stage” defense: The employee’s duties or their work environment did not contribute to the mental or emotional condition. They merely provided a passive stage for the non-industrial mental or emotional condition to become disabling.
• For example, in Atascadero Unified School District v. WCAB, a court ruled that stress arising out of workplace gossip about an extramarital affair does not qualify for workers’ compensation even though the affair involved a coworker. The court found that an abusive marriage and a divorce caused the stress. The extramarital affair played only a small part and the injury occurred at the workplace merely by chance. The job did not put the employee in a dangerous position; it provided only a location for the gossip.1
• The “caused by litigation” defense: Psychiatric injuries caused by the stress of litigating a workers’ compensation claim are not compensable. These claims of psychiatric injury are not considered as arising out of employment.2
• The “after-the-fact rationalization” defense: The employee’s work environment was an after-the-fact rationalization for a mental disorder that was caused by non-industrial factors.
• For example, where contemporaneous medical evidence demonstrated that causation of an employee’s psychiatric symptoms was attributable to nonindustrial factors, the court held that the employee’s testimony about personnel changes, heavy workload and an inability to keep pace was actually an after-the-fact rationalization.3

You can use these additional statutory defenses against claims of stress-related injuries:

• The “six-month employment” defense: Mental stress claims are generally not compensable unless you have employed the employee for at least six months. The purpose of this rule is to prevent fraudulent or retaliatory claims. The six months of employment need not be continuous, and can continue to accumulate even after the underlying physical injury occurs if the employee returns to work. All that is required is that the period of actual employment spans a period of six months.4

• The “good faith personnel action” defense: Stress claims are not compensable if they result from lawful, non-discriminatory good-faith personnel actions, including discipline, work evaluation, transfer, demotion, layoff or termination.7 For more information, see “Good Faith Personnel Action” Defense.
• The “notice of termination or layoff” defense: Psychiatric claims filed after the employee was given notice of termination or layoff are generally not compensable, unless they meet certain exceptions. This general rule even applies in those cases where notice of pending layoff or termination is given, but the actual layoff or termination has not yet taken place. But there has to be an actual notice of termination or layoff for the psychiatric claim to be barred; a notice of “likelihood or expectation” of termination in the future is insufficient to establish this defense.8

1. Atascadero Unified School District v. WCAB, 98 Cal. App. 4th 880 (2002)

2. Brock v. WCAB, 64 Cal. Comp. Cases 86 (1999) (writ denied)

3. Barnes v. WCAB, 62 Cal. Comp. Cases 489 (1997) (writ denied)

4. Lab. Code sec. 3208.3(d); Gottschalks Department Stores v. WCAB (Garcia), 63 Cal. Comp. Cases 315 (1998) (writ denied); Becerra v. Express Employment. Cal. Wrk, Comp. P.D. LEXIS 373 (2021)

5. Lab. Code sec. 3208.3 (d)

6. Wal-Mart v. WCAB, 112 Cal. App. 4th 1435 (2003); S heppard v. County of Kern, Cal. Wrk. Comp. P.D. LEXIS 74 (2022)

7. Lab. Code sec. 3208.3 (h)

8. Lab. Code sec. 3208.3(e); Rodriguez v. Omega Extruding Corp., (2019) Cal. Wrk. Comp. P.D. LEXIS 462.