DIVISION: BURDEN ON SIX MONTH PSYCH RULE
Labor Code 3208.3(d) provides a psychiatric injury is barred by the six-month employment rule unless an exception applies. In the interesting case of Bryan Milla v. United Guard Security (2020) 86 CCC 71, a security guard filed a psych claim as supported by medical reports. Additionally, he provided "selfies" of himself at work to prove his employment was for at least six months. The defense objected to the selfies as not being "authenticated" as accurate evidence, and asserted there was no other evidence proving applicant's employment for at least six months. On reconsideration, the WCAB unanimously agreed that selfies could be authenticated by the applicant's own testimony and was valid as evidence.
However, the WCAB was split on the issue as to which party had the initial burden of proving or disproving the six month employment rule. The majority held the applicant need only show employment, with the burden then shifting to the employer since the rule was an affirmative defense. Commissioner Lowe dissented, stating the rule was enacted by the legislature to establish a higher burden of compensability upon the applicant in psych cases, and therefore the applicant should have the burden of proof. Both sides cited published cases favoring their position.
[COMMENT: First, the case shows how evidence can change with the times as selfies, text messages, Facebook cover pages, etc. can constitute viable evidence. Second, the case confirms there is a split of published case opinions as to which party carries the burden of proof as to the six month rule, so the best rule is to be prepared to prove your position no matter who allegedly has the burden.]