STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


REBECCA SCHALLA, Applicant

CARTIE OAKES CORPORATION, Employer

TRAVELERS INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 95029921


The administrative law judge issued his findings of fact and interlocutory order in this case on September 16, 1997, following a hearing on July 30, 1997. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.
Prior to the hearing, the respondent conceded jurisdictional facts and an average weekly wage of $250. At issue is whether the applicant sustained an injury arising out of her employment with the employer while performing services growing out of and incidental to that employment. If a compensable injury is established, the issues also include the nature and extent of disability and liability for medical expenses.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside his findings of fact and order, except as modified herein:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in 1958. She began working for the employer, a chair manufacturer, in January 1994. Her first duties were to stain chairs. Because she was a good worker, she was transferred to the backs and pans department. She assembled the seats and backs of chairs before they were upholstered.

Eventually, the backs and pans department outgrew its space in the employer's facility. During the summer of 1994, the department was moved out to a city-owned hockey rink. The applicant's supervisor did not move with his department, but rather stayed in the main plant. The applicant was made supervisor of the backs and pans department, but not given a raise in pay. She evidently was not considered a full-fledged supervisor, however, as her department was small (she had three or four subordinates) and unlike other supervisors she had no hiring/firing authority.

The applicant testified that she was short-staffed, and as a result had to work "a few" extra hours to meet an increased work load. Nonetheless, the applicant and her three subordinates kept things under control. Subsequently, she was assigned a subordinate named Kenny who was afflicted with epilepsy.

According to the applicant, she was provided limited guidance in how to deal with Kenny's condition. A nurse told the applicant that Kenny could function just fine; that if he had a seizure he would shut his eyes and stop working; that when he recovered from the seizure he would not recall what he had been doing immediately prior to the seizure; and that she would have to repeat instructions to him if this happened.

The applicant testified that Kenny had seizures perhaps two or three times a day. She also testified that when Kenny had a seizure she did not know what to do, though she would watch him to make sure he did not hurt himself while in the seizure state. She would then wait until he was coherent, and remind him of what he had been doing before his seizure.

The applicant testified that working with Kenny affected production. The owner and one of the other supervisors would comment when the applicant's department failed to meet its production requirement, and mention what still needed to be done.

At the end of the summer of 1994, the employer transferred the backs and pans department back to its main plant from the hockey rink. The applicant and her subordinates had to produce a two-week supply of backs and pans prior to the move. This required some overtime work. After the move back, the backs and pans department was temporarily reduced to just the applicant working in a small space; her subordinates were assigned elsewhere. The applicant had to work overtime to keep up.

After four weeks, the backs and pans department was given a larger space. The applicant again was supervising workers, making certain they did their job and that the orders were being met. Evidently, though, the processing of the orders would be screwed up, or taken out of sequence, so that the applicant received complaints that some of the orders were short. The complaints came from the plant manager, Bill McGee, and his successor, Rocky. Despite this problem, plant manager Rocky and the owner, Marshall Oakes, would tell the applicant she was doing "just great" or "fine" in meetings.

However, the paperwork involved in trying to keep the orders straight and in tracking down the mis-delivered orders plagued the applicant. In September or October 1994, she told supervisor Rocky and owner Marshall that she just wanted to assemble the backs and pans. She explained that she did not want the headache of trying to figure out what did or did not need to be done. Rocky and Marshall assured her she was doing fine, and urged her to stay on as supervisor.

The applicant would also receive complaints from the upholstery department that the backs and pans did not meet specification, requiring jobs to be rerun, even though the applicant complied with the specifications she was given. The upholstery department was supervised by one of the co-owners, Deanna. The problems with specifications occurred on three orders of about 500 chairs each, between October and December 1994.

In addition, the applicant testified that she experienced stress in her dealings with plant manager Rocky, who she described as "real intimidating." She complained that everything he said was joking, sexual innuendoes. For example, he told one of the applicant's subordinates, Rachel, who missed work for psychological treatment, but whose performance was otherwise satisfactory, that she kept her job because of him and that Rachel owed him sexual favors as a result. Rachel complained to the applicant, who complained to the owners, and Rocky then "calmed down." On another occasion, Rocky told the applicant he managed by fear and intimidation.

The applicant also prepared Exhibit 4, a document listing what she described as facts about work. At the hearing, she reviewed the document to refresh her memory. Memory refreshed, the applicant testified that she was stressed by the lack of management and that, due to the employer's financial situation, she had to buy her own drill bits/screwdrivers. The applicant also testified she had trouble with her health insurance, evidently before the mental breakdown, because the employer would deduct money from her check, but then not pay the insurer. In Exhibit 4, the applicant listed this as a fact of employment that presumably contributed to her breakdown. The applicant also testified that she was promised incentive pay, but it was never actually paid even though she earned it.

The applicant eventually had what she described as a mental breakdown on December 7, 1994. The applicant testified that her dealings with Rocky and her problems with keeping the production orders straight caused her to experience a spinning, shaky, out- of-control feeling. She went home, complained incoherently to her husband that she no longer wanted to supervise for the employer. She testified that she felt like she "was there, but wasn't."

The applicant eventually contacted her family doctor, Arnold Potek, M.D. The applicant also began treating with a counselor, Carol Christensen, M.S., on December 12, following phone calls from her husband on December 7. After Dr. Potek modified the applicant's medication, she treated with a psychiatrist, Thomas Wittkopp, M.D. He decided on an increased dosage of Desipramine, an anti-depressant medication the applicant had been taking since before she began working for the employer. The applicant continued to treat with Counselor Christensen. She was actually hospitalized briefly for mental problems in January 1996. As noted above, the applicant returned to work for another employer when released by Counselor Christensen in August 1996.

This case poses the classic "mental-mental" or "nontraumatic mental" injury claim, in which a worker asserts that stress from employment caused a disabling mental or psychological injury. In order to prove a "mental-mental" claim, an applicant must show not only disability from a mental injury caused by employment stress, but also that it resulted from "unusual stress."

The "unusual stress test" for proving a compensable nontraumatic mental injury comes from School District No. 1 v. DILHR, 62 Wis. 2d 370 (1974). In School District No. 1, an examiner and the predecessor of this commission allowed benefits for nontraumatic mental injury to a high school guidance counselor caused by inclusion on a list, prepared by students, of staff members whom the students thought should be fired. The supreme court reversed the award, however, holding that a nontraumatic mental injury is not compensable under the worker's compensation statutes, even if caused by work, unless:

"[I]t resulted from a situation of greater dimensions than the day-to-day emotional strain and tension which all employes must experience. Only if the `fortuitous event is unexpected and unforeseen' can it be said to be so out of the ordinary from the countless emotional strains and differences that employees encounter daily without mental injury will liability under Ch. 102, Stats., be found."

School District No. 1 v. DILHR, 62 Wis. 2d 370, 377-78 (1974).

In announcing this stringent causation standard for cases of nontraumatic mental injury, the court noted its hesitancy in granting compensation for such mental injuries, especially those caused by nontraumatic events, because the court was (1) concerned about opening the floodgates to fraudulent claims and (2) reluctant to assign a specific work cause to conditions like depression or anxiety which could probably be triggered by any, or many, events. The commission applies School District No. 1 to require stress, strain, and tensions greater than the day-to-day stresses that all similarly-situated employes must experience. This "similarly-situated test" was approved by the court of appeals in Probst v. LIRC, 153 Wis. 2d 185 (Ct. App., 1989.) (1)

The first question in this case is whether the applicant has a disabling mental condition. While there is a disagreement about diagnosis, it is clear that the applicant has some type of mental disorder. Treating psychological Counselor Christensen diagnoses post-traumatic stress disorder and recurrent major depression. Treating Psychiatrist Wittkopp diagnoses recurrent major depression. The independent medical examiner, Paul M. Caillier, Ph.D., did not believe the applicant suffered a mental injury caused by work, but did acknowledge that she required anti-depressant medication and continuing treatment. In sum, the applicant has a psychological condition, depression, which requires treatment and medication.

The next inquiry is whether the condition was disabling. Treating Counselor Christensen believed it was, opining that she did not believe the applicant could return to work until August 1996, more than eighteen months after she stopped working in December 1994. During the interim, the applicant was actually hospitalized for her mental condition. Although independent medical examiner Caillier opined that the applicant was within normal psychological limits when he saw her in June 1997, that was well after the point at which the ALJ ended temporary disability payments when the applicant resumed working in August 1996. Moreover, Dr. Caillier acknowledged that the applicant required ongoing treatment and anti-depressant medication even in 1997. The commission therefore concludes that the applicant's condition was disabling.

The commission is left with the final question, and the focus of the hearing: was the applicant's disabling mental condition an injury caused by work? As discussed above, because this case involves a mental-mental claim, a simple causal connection is not enough. Rather, the applicant must show her injury was caused by stress that was "out of the ordinary from the countless emotional strains and differences that employees encounter daily." School District No. 1, supra.

The administrative law judge found the applicant experienced extraordinary stress meeting the School District No. 1 standard. He noted the inappropriate comments of plant manager Rocky; the lack of supervisory training, handbooks or policies; the placement of an epileptic subordinate in the applicant's department without adequate training; the failure of the employer to pay health insurance premiums; and the employer's refusal to remove her from her supervisory duties in September when she requested.

However, the commission does not agree. To begin with, the employer did not single the applicant out for disparate or harsh treatment. Rather, the applicant admitted that she was treated the same as everyone else. The applicant may have found Rocky intimidating, but the employer's owners were not unpleasant to her and both Rocky and the owners were generally complimentary of her performance. Thus, there is no evidence of a berating, abusive supervisor, the situation contemplated in School District No. 1, at 62 Wis. 2d 377, and actually present in Swiss Colony v. DILHR, 72 Wis. 2d 46 (1976), and other cases where the commission has found day-to-day work stress caused compensable mental injury under the School District No. 1 standard. (2)

Further, while the applicant testified about problems with Rocky and with delayed payment of her health insurance claims, the applicant's testimony considered as a whole indicates the more serious problems arose elsewhere. Indeed, as a reason for her breakdown, the applicant focuses almost entirely on the pressures of production and her supervisory duties in what she contends was the employer's disorganized, poorly-managed workplace.

In some situations, job stress from work in a poorly-managed business may cause extraordinary or unusual stress under the School District No. 1 standard. But the commission cannot make that finding where, as here, the applicant's direct supervisor and the employer's owners reassured the applicant that she was performing adequately. There is no evidence that the applicant was unreasonably denied break time or vacation time, or that she was unreasonably over-worked. (3) While she was asked to work overtime, the extra hours required were not excessive. In sum, the stress experienced by the applicant generally, and from mis-orders, inaccurate production specifications, and ineffective or inefficient management specifically, was within the day-to-day emotional stress and strains which production workers generally, not to mention production supervisors, must experience.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

ORDER

The findings and order of the administrative law judge are reversed. The application is dismissed.

Dated and mailed: May 7, 1998
schalre.wrr : 101 : 7  ND 3.41

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge found the applicant to be a credible witness. He explained that he was impressed by the fact the employer offered no witnesses to counter the applicant's testimony and that the applicant's medical experts opined she was temporarily disabled, and thus entitled to compensation, only for a specified and finite period.

As explained above, the commission concluded from examining her testimony that the primary source of her day-to-day job stress was the general demands of her production supervisor job, rather than the objectionable conduct of Rocky which ended after she complained to the employer. Otherwise, the commission agrees the applicant's testimony was very credible. The commission is completely satisfied that the applicant accurately portrayed her job duties, and the stresses they created under the employer's management and financial situation. Again, however, the commission cannot conclude the stress on the applicant was of greater dimension than the day-to-day stress which similarly- situated employes must experience.

cc:

ATTORNEY JEFFREY R MUNSON
SPINDLER ROITBURD SCHWEMER & MUNSON

ATTORNEY LISA A ELANDER
MUDGE PORTER LUNDEEN & SEGUIN SC


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Footnotes:

(1)( Back ) See also: Neal & Danas, Worker's Compensation Handbook, sec. 3.41 (4th ed. 1990); Note, Eligibility for Worker's Compensation in Cases of Nontraumatic Mental Injury: The Development of the Unusual Stress Test in Wisconsin, 1987 Wis. L. Rev. 363.

(2)( Back ) Abuse, harassment or unwarranted threats of retaliation were decisive factors in James Baxter v. UW, WC case no. 91025279 (LIRC, January 31, 1994); King v. State of Wisconsin--UW Milwaukee, WC case no. 84-052269 (LIRC, May 27, 1992); and County of Oneida v. LIRC and Rodemeister, case no. 89-CV-10 (Wis. Cir. Ct. Marathon County, September 18, 1989). Harassment by co-workers was the decisive factor in Milwaukee County v. LIRC and Giselrud, WC case no. 84-052269 (LIRC, May 27, 1992) and John E. Beverly v. Miller Brewing Company, WC case no. 82-2-96 (LIRC, May 3, 1990). On the other hand, an abusive supervisor or harassing supervisor does not automatically prove unusual stress, James Lust v. UPS, WC claim no. 91024033 (LIRC, November 22, 1994), nor is abuse or harassment a prerequisite to prove unusual day-to-day stress, Sandy Wendt v. Midland Container Corp., WC Claim no. 91031597 (LIRC, November 17, 1993).

(3)( Back ) See Sally Wendt, supra.