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


JAMES LUST, Applicant

UNITED PARCEL OSHKOSH, Employer

LIBERTY MUTUAL INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 91024033


The administrative law judge issued his findings of fact and interlocutory order in this case on November 11, 1993, following hearings on April 27, 1993 and October 7, 1992. The applicant filed a petition for commission review of the administrative law judge's findings and order. Thereafter, the employer and the insurer (collectively, the respondent) and the applicant submitted briefs. Prior to the hearing, the respondent conceded jurisdictional facts and an average weekly wage that exceeds the statutory maximums under sec. 102.11, Stats. The issues are whether the applicant suffered an injury while performing services growing out of and incidental to employment and whether the injury arose out of the applicant's employment. If a compensable injury is established, the issues also include the nature and extent of disability, as well as liability for medical treatment 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, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Generally.

The applicant, who was born in 1938, worked for the employer as a route driver for over twenty years as of the alleged date of injury in January 1988. He served as union steward for 18 years. He contends that he experienced extraordinary stress at the workplace from 1984 through 1987. During this time, he lost weight, had nightmares, and became extremely nervous and shaky at work. He testified he was unable to do his work in January and February of 1988 because of the stress. In March 1988, he was hospitalized for depression, anxiety and related conditions.

The applicant returned to work at some point in June 1988. He worked into 1989, when he was again taken off work and hospitalized from June 18 to 26, 1989 because of Ramsay-Hunt syndrome (a neurological physical problem related to herpes zoster and aggravated by stress.) He was released to work again on May 1, 1990, and returned in the summer of 1990, but was unable to continue apparently because of blood pressure problems. He was hospitalized once more in October 1991 because of depression, after attempting suicide by carbon monoxide asphyxiation.

2. Stress and the applicant's job.

The applicant's job as a driver for the employer was stressful. The drivers are required to adhere to strict time standards, and the company imposes a variety of time-saving measures, including things like walking to the truck with keys ready, writing while walking, starting the truck while putting on a seatbelt, etc. Drivers are accompanied by supervisors at least once or twice a year or, if a driver does not meet standards, more often. These are stressful encounters, everyone agrees, as is made clear in the testimony of Jan Meyer.

In this case, the applicant claims he was persecuted by his supervisor's supervisor, John Messler. Mr. Messler and the applicant's direct supervisor would ride along with the applicant once a month, or more, because he was not meeting time standards. According to the applicant, Mr. Messler was unrelentingly critical. The applicant also testified that Mr. Messler threatened him with job loss if he did not meet standards by making veiled references to having a job still at Christmas or implying he would lose his house. Mr. Messler denied these threats and states that he treated the applicant the same as anyone else.

Mr. Messler did admit riding with the applicant six times between March 1987 and January 1988, which was unusually high. He was clearly displeased with the applicant's performance and wanted to issue a series of four warning letters, but upper management would not let him. Mr. Messler also admitted having a personality conflict with the applicant, and testified that the applicant was not working out.

In January 1988, Mr. Messler transferred from Oshkosh to Green Bay. However, he retained supervisory authority over the applicant. This was an unusual step and Mr. Messler explained that the applicant's performance tended to slide when he got a new supervisor, and that "it was determined and told to [the applicant]" that Mr. Messler would continue to supervise the applicant because he had done well with him.

John Shields, a former supervisor for the employer, was required to appear by subpoena. Mr. Shields states that Mr. Messler in fact singled the applicant out for harsh treatment. Mr. Shields testified that Mr. Messler enjoyed rattling the applicant, and bragged about it to other supervisors. According to Mr. Shields, Mr. Messler stated he got in the applicant's face, and deliberately marked packages so that the applicant would feel stupid delivering them. He stated that Mr. Messler was excited and pleased that he had been able to shake the applicant up. He also stated that Mr. Messler was pleased that the applicant was in the hospital and that the Oshkosh center manager, Dave Saur, told Mr. Shields he (Saur) was pleased the applicant was out when he was hospitalized.

This case turns on the credibility of the witnesses. The commission therefore conferred with the administrative law judge who conducted the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The presiding administrative law judge explained that Mr. Messler seemed very credible. The administrative law judge specifically found credible Mr. Messler's testimony that he continued to supervise the applicant to help him improve and to avoid the possibility the applicant's performance would regress under another supervisor.

The administrative law judge stated that the applicant's demeanor when recounting conversations with Mr. Messler was very histrionic, that his voice would drop and take on a sarcastic tone. He also noted that the applicant's demeanor was originally hollow and hushed, but later became agitated and nervous when discussing the case. This led the administrative law judge to believe that the applicant was affecting post traumatic stress disorder or some other psychological condition until he forgot himself in the process of testifying.

The commission found especially credible the testimony of Jan Meyer, a former driver and supervisor. He testified that the work with the employer was stressful, and that he quit because of the stress. He testified that the drivers' time standards were set for young men. He also testified that when he was a route driver he was accompanied by supervisors whom he found intimidating and who made him nervous. He admitted that as a supervisor he "rode" his own drivers to the point that they would avoid him and not talk to him. He also testified that Mr. Messler was aggressive and on one occasion "yelled at me like another driver." He also stated that many drivers would become stressed on the job and that some would leave work in the middle of the day because of it.

3. Medical Reports.

The doctors who have examined the applicant agree that he has suffered from psychological problems. His treating physician and current psychiatrist believe that his problems remain disabling and were caused by work. His former psychiatrist, who stopped treating the applicant and moved to another state, believed the applicant had recovered from his psychological problems in July 1992. The independent medical examiner appears to acknowledge mental problems, but states they are not work-related.

In addition to his psychological problems, the applicant suffers from Ramsay-Hunt syndrome, a physical condition also called cephalic herpes zoster which is precipitated or increased by stress. This condition has caused abnormalities in the applicant's inner ear, and may have affected his brain stem, resulting in dizziness and similar symptoms. The doctors who treated him for this condition believe it was work-related; the independent medical examiner disagrees.

In a note dated April 14, 1993, treating physician, Richard O. Haight, M.D., stated his opinion that the applicant reached a healing plateau on May 14, 1991 (before the suicide attempt), but that the applicant is 100% permanently disabled. He opined the applicant is totally disabled from major depression and the Ramsay-Hunt syndrome, both of which were causally related to the "tremendous stress" at the workplace.

Dr. Haight's notes first mention depression in January 1988 and Ramsay-Hunt syndrome in June 1989. According to Dr. Haight, the Ramsay-Hunt syndrome caused brain stem damage and left the applicant permanently disabled with vertigo and dizziness. He opined that the applicant is unable to perform any type of work which requires either rapid decision making or which produces any stress, presumably because of his mental condition. He also restricted the applicant from any work activity involving "driving, excessive head movements, bending, fast movement of the head, and upper body movements of any consequence that would include lifting." The latter restrictions seem more related to the dizziness and vertigo symptoms from the Ramsay-Hunt syndrome. See Exhibits A and B and Haight's October 27, 1992 note in Exhibit D.

The applicant first saw treating psychiatrist, Kenneth Olson, M.D., on referral from Dr. Haight, on February 16, 1988. In a note dated August 1, 1991, Dr. Olson opined that the applicant suffered from major depression, moderate, and other anxiety symptoms. Dr. Olson stated these conditions were caused by (either directly or as a material contributory factor) excessive stress at work from conflict with his supervisor. He found a causal relationship probable because he had no prior episodes of depression. He also opined that the work demands and associated depression "probably aggravated or accelerated" the applicant's pre-existing Ramsay-Hunt condition.

In his August 1, 1991 letter, Dr. Olson also opined that the applicant should not return to his job with the employer and set out the permanent restrictions, later adopted by Dr. Haight, which are set out above. He recommended sedentary work. In a practitioner's report dated July 16, 1991, Dr. Olson indicated work causation for the applicant's psychological problems, marking all three boxes. He rated the applicant's permanent disability at 70% compared to disability to the body as a whole, although he oddly also stated that there was no permanent disability. He noted the applicant returned to work for 10 weeks with no limitation other than no truck driving.

In a later letter, however, Dr. Olson opined that the applicant reached a healing plateau by July 1992, that his depression had resolved, and that he no longer had anxiety problems. However, Dr. Olson noted that the balance and dizziness problems remained, so he kept the restrictions quoted above (no driving, rapid or excessive head movements, etc.) in place. Exhibit C, Olson's July 20, 1992 note.

The applicant was treated by psychiatrist Jean Seay, M.D., after Dr. Olson left the state. In a note dated April 19, 1993, she stated that the applicant continues to obsess about workplace mistreatment, that his energy level and interest in activities have diminished, that he has sleep disturbances, that high anxiety and lack of concentration prevent even sheltered work, and that no medications have truly helped his condition. She agrees with the mid- 1991 plateau set by Dr. Haight, but believes that his condition has waned and waxed since then. Specifically, she diagnosed chronic, recurrent major depression and post traumatic stress. She disputed Dr. Olson's opinion that the applicant had resolved his psychological problems in 1992.

Dr. Seay opined that the applicant's work was either the sole or, at a minimum, the predominate cause of his post traumatic stress and major depression disorders. She opined he had permanent disability as a result of extraordinary stress, and rated his disability at 100%. She concurred with the restrictions set out above, but indicated that even in sedentary work the applicant would have to be monitored closely for re-traumatization. She opined he would need medication and treatment for the rest of his life.

The applicant was seen on December 12, 1991, by Barbara L. Lauderdale, M.D., about his Ramsay-Hunt syndrome. She agreed that he had the condition, which she stated was associated with aging, immunosupression and a stressful life. She noted a March 1990 evaluation at the Mayo Clinic which concluded that the condition caused vestibular (ear canal) abnormalities. She noted symptoms of a burning sensation around the applicant's left ear, a rash on the left side of his face, a progressive loss of cranial nerve function on the left side of the face, hoarseness, difficulty swallowing, dizziness, lightheadedness, diminished hearing, and a "hung-over" type feeling.

Dr. Lauderdale stated that the applicant's stress and depression may have been precipitating factors in the progression of the Ramsay-Hunt condition. Indeed, she completed a practitioner's report explictly stating that the stress and depression from work caused the applicant's Ramsay-Hunt disorder, either as an occupational disease or by aggravation, acceleration and precipitation of a pre-existing degenerative condition beyond its normal progression. Exhibit G.

The independent medical examiner (IME) was Thomas John Michlowski, M.D. He did a fairly lengthy interview with the applicant in August 1991. He concluded by stating that if the claim were to be upheld, the applicant would have to show that the amount of stress he was subjected to was out of proportion to that customarily encountered in that type of work. He did state that the applicant showed no signs of a major mental disorder, leading the IME to question the work history described by the applicant. He also stated that the applicant was not totally disabled. His report is dated August 7, 1991, two months before the applicant's suicide attempt.

IME Michlowski did a follow-up report dated April 19, 1993. In this report he seems to concede a psychological condition, based on the results of psychological tests, although he apparently had some problems with the test methodology. Dr. Michlowski noted that if the stress the applicant encountered at work was out of the ordinary, then one could conclude the stress was in excess of what the applicant could handle, "emotionally speaking." On the other hand, if the stress were not out of the ordinary, the applicant's emotional reaction would be a function of his underlying personality make-up. On this point, Dr. Michlowski noted that the psychological tests showed a propensity to overreact, resulting in psychophysiological disorders such as ulcers or hypertension.

IME Michlowski does give a more definite opinion about the Ramsay-Hunt syndrome which caused the applicant's hospitalization in June 1989. Dr. Michlowski reviewed the medical records of January through March of 1989 and suggested that the applicant was not undergoing much stress at work, at that time. He opined that Drs. Olson and Haight's notes indicate a lack of immediate stress, and thus establish that the June 1989 hospitalization for the Ramsay-Hunt condition was not work-related.

4. The law.

A non-traumatic mental injury, even if causally related to work, is not compensable unless:

"it 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 unexpected and unforeseen' can 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. ILHR Dept., 62 Wis. 2d 370, 377-78 (1974). In announcing this more stringent causation standard, the court noted its hesitancy in granting compensation for such mental injuries, especially those caused by non-traumatic 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 courts have adhered to the School District No. 1 formulation in a number of succeeding cases: Swiss Colony, Inc. v. ILHR Department, 72 Wis. 2d 46, 51 (1976); Probst v. LIRC, 153 Wis. 2d 185, 190-91 (Ct. App., 1989); and Jensen v. Employers Mutual Casualty Company, 161 Wis. 2d 253, 268 (1991). The supreme court has described the test as an objective test, summarizing it as: "Would a person of ordinary sensibility be emotionally injured or mentally distressed in the absence of unusual circumstances?" Jensen, at 161 Wis. 2d 268.

Extreme criticism by a superior has been recognized as a basis for compensation. The supreme court has stated that an average man who, after being criticized and berated by an employer for a significant period of time, and suffers a mental injury should not be denied compensation. School District No. 1, at 62 Wis. 2d 378. Indeed, the commission and the supreme court allowed the payment of benefits for mental injury on that ground in Swiss Colony. In addition, the commission has consistently required stress, strain or tension greater than the day-to-day stresses, strains and tensions that all similarly-situated employes must experience. The similarly-situated test was approved by the court of appeals in Probst, 153 Wis. 2d 185-86.

5. Decision and discussion.

The commission concludes that while the applicant has established his job was stressful, he did not establish a greater dimension of stress than the emotional strain and tension which similarly-situated employes experienced daily without mental injury. The employer clearly placed stress on its workers and supervisors in an attempt to increase production and profitability. However, such stress was nearly universal at the employer's work place. Further, the applicant's testimony suggesting that he was singled out was not as credible as Mr. Messler's testimony that he was not. While other workers, many of whom no longer work for the employer, testified that the applicant was not a favorite of the employer's management, that does not prove his case. The commission thus concludes the applicant has not established that his claim for psychological injury is compensable under School District No. 1.

However, the Ramsay-Hunt condition, although affected by stress, is itself a physical condition, so the School District No. 1 standard does not apply. The applicant, like all of the employer's workers, experienced significant work-related stress during the years preceding his disability from the Ramsay-Hunt condition. The expert medical opinions establish a casual connection between stress at work and Ramsay-Hunt syndrome.

Given the prior years of stressful employment, the commission is not persuaded by Dr. Michlowski's opinion that the progression of the condition was not work-related because the applicant was under relatively less stress in the months immediately preceding his hospitalization. Rather, the commission finds credible the opinions of Drs. Olson, Lauderdale and Haight that the applicant's disability from his Ramsay-Hunt condition is work- related, as an aggravation, acceleration and precipitation of a progressively degenerating preexisting condition. The date of injury is the first day the applicant was hospitalized for the condition, June 18, 1989.

The next issue is when the applicant reached a healing plateau date with respect to the Ramsay-Hunt condition. Dr. Haight's April 9, 1990 note mentions the Mayo Clinic visit showing permanent damage. As noted above, Dr. Haight released the applicant to return to work on May 1, 1990. His notes show gradual healing through that date.

True, Dr. Olson stated on August 1, 1991 that the permanent partial disability could not yet be determined, but he went on to cite only the residuals of the Ramsay-Hunt condition and to note that the applicant's depression had not yet resolved. In answering the inquiry as to whether the applicant had reached a healing plateau, the doctor stated there had been some neurologic healing with respect to the Ramsay-Hunt condition, but that the applicant continued to suffer from some symptoms.

The commission believes Dr. Olson's August 1, 1991 letter indicates that the applicant had reached a healing plateau with respect to his Ramsay-Hunt condition at some earlier point, but that he still suffered from permanent, residual symptoms. Indeed, the residual permanent symptoms resulted in the restrictions fixed by Dr. Olson on that date and continued by other doctors in subsequent reports. Given Dr. Haight's notes from April and May 1990, the most logical healing plateau date is May 1, 1990. While opinions from other doctors set a later plateau date, they also take into account disability from the noncompensable mental injury.

The Ramsay-Hunt condition, as aggravated, accelerated and precipitated beyond normal progression by work, resulted in a permanent restriction to sedentary work. Other permanent restrictions included those set by Drs. Olson and Haight: no work activity involving driving, excessive head movements, bending, fast movements of the head, or upper body movements of any consequence that would include lifting. Although Dr. Olson did not actually set these restrictions until after the healing plateau date, the commission believes the restrictions are most reasaonably associated with his Ramsay-Hunt condition as of the date he reached maximum healing from that condition, May 1, 1990.

Given these restrictions, the commission concludes that the applicant suffered a permanent partial disability from the Ramsay-Hunt condition at 65 percent compared to disability to the body as a whole. The commission cannot conclude that the Ramsay-Hunt condition alone made the applicant totally and permanently disabled. On this point, the commission notes that the applicant was able to return to work, albeit at different duties, in May 1990 until August when he was taken off work because of his blood pressure.

The commission therefore finds that the applicant was entitled to temporary total disability from the date of his hospitalization for the Ramsay-Hunt condition, June 18, 1989, through April 30, 1990, in the amount of $16,395.50 (45 weeks and one day at the 1989 statutory maximum for temporary total disability of $363 per week).

The commission further finds that the applicant sustained a permanent partial disability of 65 percent compared to disability to the body as a whole. He is therefore entitled to 650 weeks of permanent partial disability at $125 per week (the maximum statutory rate for 1989). This amounts to a total of $81,250. As of Novmeber 4, 1994, 235 weeks and 2 days of permanent partial disability have accrued amounting to $29,416.66.

The applicant also approved an attorney fee of 20 percent under sec. 102.26, Stats. The percentage fee is based on the temporary total and permanent partial benefits awarded. The fee is thus $19,529.10 {20 percent of ($16,395.50 plus $81,250)}. Of that amount only $9,162.42 has yet accrued. As a result, the fee is subject to an interest credit of $2,426.56, leaving a net fee which reflects its present value of $17,102.54. The fees shall be deducted from the applicant's award and paid to his attorney within 30 days.

The amount of $36,649.74 is due to the applicant within 30 days. This is determined by adding the additional temporary total disability benefits of $16,395.50 to the permanent partial disability benefits of $29,416.66 accrued as of November 4, 1994, and subtracting from this total ($45,812.16) the accrued attorney fees of $9,162.42.

The amount remaining to be paid to the applicant as it accrues beginning on December 4, 1994 is $41,466.66. This is determined by starting with the total award for permanent partial disability ($81,250), subtracting the amount of permanent partial disability accrued to November 4, 1994 ($29,416.66), and subtracting the unaccrued attorney fee without deducting the interest credit ($10,366.68). This amount shall be paid to the applicant in monthly installments of $541.67, beginning December 4, 1994.

The applicant does not separate out his medical treatment expenses for his psychological condition from those for his Ramsay-Hunt condition. The commission therefore remands this case to the department for hearing and decision to determine which medical treatment expenses are associated with the Ramsay-Hunt condition and are therefore compensable if the parties cannot agree on the issue.

Finally, the commission notes that the doctors agree that the applicant continues to be affected by the permanent changes caused by the Ramsay-Hunt condition. The commission therefore concludes that future medical treatment may be necessary and issues an interlocutory order for the sole purpose of allowing the applicant to recover those expenses.

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

INTERLOCUTORY ORDER

The decision of the administrative law judge is reversed. Within 30 days from the date of the decision, the employer and its insurer shall pay all of the following: (1) To the applicant, James Lust, the sum of Thirty- six thousand six hundred forty-nine dollars and seventy-four cents ($36,649.74) for permanent partial disability. (2) To the applicant's attorney, Anthony J. Utschig, the sum of Seventeen thousand one hundred two dollars and fifty-four cents ($17,102.54) as attorney fees. Beginning on December 4, 1994, and continuing on the fourth day of each month thereafter, the employer and the insurer shall pay the applicant the sum of Five hundred forty one dollars and sixty-seven cents ($541.67) until the total remaining sum of Forty-one thousand four hundred sixty-six dollars and sixty six cents ($41,466.66) has been paid. This case is remanded to the department for further hearing, if necessary, to determine the amount of medical expenses that are compensable under this order. Jurisdiction is retained for such further orders as are consistent with the terms of this decision.

Dated and mailed November 22, 1994
ND 3.41

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

 

Pamela I. Anderson, Chairman, (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I would agree with the administrative law judge that the applicant's case should be dismissed. I believe that the applicant exaggerated his stress at work. I would find that his Ramsay-Hunt condition was not caused by work nor did work aggravate, precipitate or accelerate the condition beyond its normal progression. Therefore, I would affirm the administrative law judge's decision.

Pamela I. Anderson, Chairman

cc: ATTORNEY THOMAS W BERTZ
ANDERSON SHANNON O BRIEN RICH & BERTZ

ATTORNEY ANTHONY UTSCHIG
BOLLENBECK ROWLAND & UTSCHIG SC


Appealed to Circuit Court; aff'd. December 16, 1995.   Appealed to Court of Appeals; aff'd sub nom.  UPS and Liberty Mutual Ins. Co. v.  Lust and LIRC, 208 Wis. 2d 306; 560 N.W.2d 301 ( Ct. App., 1997).

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