Sexual Exploitation by PTP Causes New Compensable Injury
Sacramento, CA - The injured worker was employed by Applied Materials from 1996 until 2008. During that time, she claimed three industrial injuries: a specific injury to her neck and right upper extremity in 2001, a specific injury to her neck and both upper extremities in 2005, and a cumulative trauma injury to her neck, both upper extremities, and psyche ending on her last day worked in January 2008.
The worker later claimed that in 2013, she was sexually exploited by Dr. John Massey, (an anesthesiologist/pain specialist), the physician primarily responsible for the treatment of her industrial injuries after 2007. At the time, Massey was a member of the Bay Area Pain and Wellness Clinic (BAPWC). His license has since been revoked for his sexual misconduct by the California Medical Board.
She claimed that he touched her inappropriately on multiple occasions at his clinic and had sexual intercourse with her five times in her home. As a result of the doctor's alleged misconduct, she claimed that she suffered a further injury to her psyche and was diagnosed with posttraumatic stress disorder (PTSD). Worker claimed her PTSD was industrial as a compensable consequence of the medical treatment her employer provided for all three of her industrial injuries.
Arrowood Indemnity Company was the workers' compensation carrier for the 2001 specific injury claim. XL Specialty Insurance Company, as administered by Corvel Corporation was the workers' compensation carrier for both the 2005 specific injury and the 2008 cumulative trauma injury claims.
Both insurers contended that Worker's psychiatric injury resulting from her claimed sexual exploitation by Dr. Massey was not industrial because it was the result of a consensual sexual relationship and occurred at her home.
The case went to trial before a workers' compensation judge in 2017. The WCJ found that all of Worker's injury claims - including her depression, anxiety, and PTSD - were industrial, and awarded 100 percent permanent disability based on her PTSD alone retroactive to October 2010; found no apportionment; and concluded that the insurers were jointly and severally liable for the PD award since Dr. Massey treated all three of her industrial injuries.
In its June 2019 decision, the WCAB amended the amount of the weekly TD and PD rates as recommended by the WCJ, made an order regarding attorney fees that is not at issue here, and otherwise affirmed the WCJ's findings and award.
On the issue of industrial causation, the Court of Appeal concluded that the Worker met her burden of proving that her PTSD was a compensable consequence injury. It rejected Petitioners' contention that the sexual conduct here was consensual, since as a matter of law a patient cannot consent to sexual contact with his or her physician (Bus. & Prof. Code, § 729, subd. (b)), as well as their contention that the PTSD is not compensable under the rules governing industrial injuries arising out of assaults by third parties.
It concluded that the 100 percent PD award must be annulled because: (a) the psychiatric reports that the WCAB relied on do not constitute substantial evidence since Dr. Sidle relied on an incorrect legal theory, the alternative path theory, that was rejected in Fitzpatrick, supra, 27 Cal.App.5th 607; and (b) Worker's evidence was otherwise insufficient to rebut the scheduled rating for her psychiatric disability.