JUDY A. CIMAROLI, Applicant
DEPT OF CORRECTIONS, Employer
DEPT OF ADMINISTRATION, Insurer
In October 2000, the applicant filed an application for hearing seeking compensation based on a March 1, 2000 date of injury. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on July 11, 2004, January 15, 2005, and October 11, 2005. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage as of March 1, 2000 of $610.75, and that the applicant was a protective service participant. At issue is whether the applicant sustained an injury arising out of her employment which qualifies her for benefits under Wis. Stat. § 40.65.
On January 9, 2006, the administrative law judge issued a decision in this matter. The respondent filed a timely petition for review.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
1. Facts.
a. Employment facts; work injury
The applicant was born in 1960. She left high school before graduating, but later got a GED. In 1981, she earned an associate degree in police science at a vocational school.
After getting her associate degree, the applicant worked at a supper club and a drug store for a few years before getting a job at Columbia Correctional Institute -- a maximum-security state prison -- as a prison guard in 1990. Her formal title was "correctional officer" and she was promoted to Correctional Officer 2 in 1992.
Also in 1992, the applicant began working as an officer in the disciplinary segregation unit. The inmates here are isolated, put in temporary lockup, either because of their behavior or for their own protection. The men in the disciplinary segregation unit cause problems for correctional officers including screaming, yelling, swearing at each other, calling correctional officers names, kicking their doors, sexually assaulting each other, and hurting themselves. The applicant's job required her to be a first responder in cases of emergencies in the segregation unit.
In November 1999, the applicant began having problems with a supervisor, Sergeant Neal Knapton. He was a former Army Ranger with whom she had been working for months or years. The applicant and Sgt. Knapton initially had a good relationship: she testified she asked him to mentor her son in an Army recruiting camp and that he also confided his personal problems to her.
Around November 1999, however, the applicant's relationship with Sgt. Knapton started deteriorating. He began telling the applicant to "Get me coffee you stupid fucking bitch," though the applicant did not complain to superiors about this. He would stand at the window in the protected area, "the bubble" in the segregation unit where the two worked, watch arriving coworkers at shift change, and say a negative comment about each one. He would come close to the applicant's ear and yell "Do you know what I mean?" He told the applicant that he believed superiors were listening to his casual conversations, and that workers on an earlier shift were trying to set him up.
On November 17, 1999, Sgt. Knapton began ranting to the applicant about how much he hated the administration and staff at the prison, telling the applicant he had found a way to "fix" them. He revealed a plan to bring in pipe bombs and poison, a powder that could be absorbed though the skin. The applicant asked if he was serious, and he told her he was.
Later that night, the applicant suggested to Sgt. Knapton that he see a psychiatrist. Sgt. Knapton mentioned some kind of problem with his insurance, then "went overboard" doing a lot of swearing, slamming doors, and kicking and slamming things.
The next day, when the applicant reported for work, she saw on a duty roster in a break room that Sgt. Knapton was not assigned to work with her that shift. She called a higher-up, then-Captain Philip Brooks, and asked where Sgt. Knapton was. Captain Brooks told her that Sgt. Knapton had complained about her and had asked to be reassigned. Captain Brooks then began telling the applicant about the importance of getting along with coworkers. The conversation ended without the applicant reporting Sgt. Knapton's threat to kill administration and staff with explosives and poison.
The applicant then spoke with another supervising sergeant, Sgt. Dunahay, about Sgt. Knapton's threats. Sgt. Dunahay convinced her to call Captain Brooks back. The applicant testified she called Captain Brooks and told him she needed to talk with him personally in the segregation unit. He never came.
The next day, the applicant spoke with Captain Linda Schwandt. The report of this conversation is at exhibit 5. The applicant told Captain Schwandt about the pipe bomb and poisoning threat, referring to rat poison. She added that Sgt. Knapton had called her a "stupid fucking bitch," that he got worked up and exhibited screwy behavior, and that he had mentioned mental leave and contacting a "shrink." The applicant also described Sgt. Knapton as bossy, controlling and paranoid, even telling her when she could use the bathroom.
The applicant was also interviewed by a personnel officer, Kim Kannenberg, to whom she gave a consistent recounting of the events of November 17. Mr. Kannenberg told her that there would be an administrative investigation, and that she would not be assigned to work with Sgt. Knapton while that was pending. July 2004 Transcript, page 36.
Sergeant Knapton did not testify at the hearing. According to documents introduced by the respondent at the hearing, when interviewed by the employer as part of this investigation, Sgt. Knapton denied making threats in an interview with a personnel officer. He said he may have mentioned pipe bombs and poison to the applicant while discussing his service as an Army Ranger, but denied saying he would bring such items to work. He could not recall referring to the applicant as a "stupid fucking bitch" but added they teased one another and she called him names, too. Exhibit 17. After his interview, Sgt. Knapton handwrote a ten page document listing his complaints with the applicant's behavior, and submitted it to the employer.
Meanwhile, the applicant continued to work in the segregation unit, and different sergeants cycled through. However, on March 1, 2000, the applicant learned shortly before her shift started she would be working that day with Sgt. Knapton. She did not raise the issue with Captain Brooks.
When the applicant went into the bubble to begin work on March 1, Sgt. Knapton was already there, joking with the departing guards from the second shift. When they left and the bubble door slammed shut, he faced the applicant hands on hips, told her things would be different, that she would do all the work, and that he might make the 3:00 round.
The applicant then went out of the bubble to do the inmate count. She gave Sgt. Knapton the number of the count of inmates, and then he yelled at her to inquire if she had checked to make sure the cell doors and trap doors were secured. She had not checked them, and told Sgt. Knapton she was going back out to do that task. He called her a stupid fucking bitch.
Sgt. Knapton also told her, while cursing and flailing his arms, to pick up the mail in a loud, angry voice. She was frightened, and left to check the cell doors and trap doors, and pick up the mail. She returned to the bubble and did routine tasks, but the sergeant followed her around. He reiterated that "things would be different," mentioning that he had told her not to report his threat to kill prison personnel with pipe bombs and poison.
The applicant called Captain Brooks and told him she was going home sick. She did not mention her problem with Sgt. Knapton to Captain Brooks directly, because Sgt. Knapton was standing near the applicant while she was talking on the phone with Brooks, and she did not want to exacerbate the confrontation. January 2005 transcript, page 27. Captain Brooks told her that she would be relieved in about ten minutes. She tried to get a bathroom key, so she could lock herself in the bathroom and get help, but Sgt. Knapton blocked the way.
The applicant then gathered work she could do away from the sergeant and out of the bubble. Sergeant Knapton then took the work from her and told her to get out of the bubble. Intimidated, the applicant left the bubble and Sgt. Knapton slammed and locked the bubble door behind her.
When the applicant was locked out of the bubble she was in what was called a "common area." The inmates, when locked up, were separated from the common area by both their locked cell doors and a locked "wing door." It was not uncommon for correctional officers to work outside the bubble in the common area at a picnic table. July 2004 transcript, page 125. However, a corrections expert called by the respondent, Steven Schneider, testified that he was aware of instances where the electronic locks to the inmates' cells had malfunctioned and the cell doors opened.
The applicant became frightened because she was locked out of the bubble without personal protective gear. Correctional officers are supposed to wear such gear, including a radio body alarm, when outside the bubble. The applicant did not get the gear on her way out of the bubble because it was located by Sgt. Knapton. Outside the bubble without the gear, she went into the property room where she called Sgt. Dunahay. He told her to get relieved and go home. When relief arrived after five or ten minutes, she left.
Mr. Brooks testified that when the applicant called him, she never said anything about Knapton, his behavior, or being locked out of the bubble. She merely said she was sick. She did not sound hysterical.
Sergeant Knapton filed an incident report dated March 1, 2000, exhibit 15. According to the incident report, the applicant merely told Sgt. Knapton that she would be seeking her relief because she was "sick;" thereafter he told her not to take the work out of the bubble as she would soon be leaving. Sgt. Knapton stated that he behaved professionally throughout the incident.
After March 1, 2000, the applicant never went back to work. She called in sick for a few days after the March 1, 2000, incident, then sought psychological treatment. The applicant qualified for social security disability as of March 1, 2000. Exhibit M.
Mr. Brook's wife, Christine Brooks, also a correctional officer at Columbia Correctional Institute, testified that she had had conversations with the applicant about stress, but the applicant identified off-duty stressors, pain from a car accident, an ill mother, and problems with her sons. Mrs. Brooks did not recall any mention of stress or problems with Sgt. Knapton. Mrs. Brooks testified, moreover, that the applicant did ask her about stress leave, and indicated she wanted to wait until the beginning of the year to take it. The applicant, for her part, denied making that statement to Ms. Brooks.
Mr. Brooks testified that if an officer in the segregation unit had called for help, it would have arrived in about a minute. He had testified that it would have been a violation of Sgt. Knapton's duties if he in fact had evicted the applicant from the bubble without protective gear, and that he had never otherwise heard of such an incident occurring. He added that a guard would be anxious if the guard did not think he'd be backed up by his fellow guards. However, Mr. Brooks did not think that belief increased a guard's anxiety beyond the normal anxiety level of a guard in a maximum-security prison who was working in the segregated area. January 2005 transcript, page 105.
b. Expert opinion
The respondent's expert regarding the stress facing correctional officers is Steven Schneider. Mr. Schneider began working as a prison guard in 1980 and eventually attained the rank of captain. He has been assigned to Columbia Correctional Institute in the past. Currently, he works for the Department of Health and Family Services as security director for an institution that houses sexually violent persons.
Mr. Schneider opined about the dimensions of stress caused by the incidents the applicant testified were particularly stressful. Mr. Schneider paints a grim picture of the dangerous daily work life of prison guard at Columbia Correctional: assaults on guards or other prison personnel by inmates are not unknown, incidents occur where inmates throw feces, blood or urine at guards, uncooperative inmates sometimes require extraction from their cells by force using a four-person team, officers must respond to fights and suicides, and exposure to profanity from inmates and occasionally coworkers.
Set against all of this, Mr. Schneider opined that Sgt. Knapton's threats to bring in explosives or poisons would not cause a coworker in the applicant's position "unusual stress." October 2005 transcript, page 46-47. Indeed, Mr. Schneider opined that even if the threats were made in all seriousness by someone who seemed capable of carrying them out, that would not place unusual or extraordinary stress on a corrections officer. October 2005 transcript, page 48. He testified that the stress of such a statement would be equal to that which a guard experienced daily. Addressing the March 1, 2000, incident where the applicant says she was essentially forced out of the bubble by Sgt. Knapton, Mr. Schneider testified that the incident would not have caused unusual stress on similarly-situated corrections officers. October 2005 transcript, page 53.
As noted above, Mr. Schneider did testify that he was aware of instances where the locks to the inmates' cells malfunctioned, and the cell doors opened. He added, however, that had the doors opened, the applicant could have gone to several areas to be safe, including the property room, the server area, and the laundry room. He agreed with Mr. Brooks' testimony that had the applicant called for help by phone in one of those areas, it would have arrived in under a minute.
On cross-examination, Mr. Schneider acknowledged that he was unaware of another instance where a guard sergeant threatened to bring pipe bombs and poison into the institution. He could recall two instances where prison personnel threatened to bring in weapons, but these were less destructive weapons.
Mr. Schneider also admitted that trust and support of coworkers, fellow officers, is extremely important: it is part of what enables prison officers to go in and do their jobs. He could not recall an instance where an officer was injured because another officer intentionally delayed in coming to his aid. He added that the officers all knew they were not supposed to expose fellow officers to danger, and that he could not recall anyone being disciplined for such an act.
Finally, Mr. Schneider acknowledged that it was not common for a guard to be locked out of the bubble by a superior officer he or she felt was mentally unstable. He acknowledged that Sgt. Knapton could have opened the inmate cell doors from the bubble if he wanted, but then the applicant would have access to the server area, laundry room, and common room that were commonly open and locked with a key, not electronically.
The parties have also submitted expert medical, psychiatric and psychological opinion concerning the cause, nature, and extent of the applicant's disability. Under the duty disability law, the applicant is required to submit to the Department of Employee Trust Funds (DETF) written certification of a duty-related disability from two physicians (1) practicing in the state. Wis. Stat. § 40.65(2)(b)2. One of the two physicians must be approved or appointed by DETF. Ibid.
Exhibit A is a worker's compensation practitioner's report from Barbara Center, M.D., dated December 28, 2000. Dr. Center is a psychiatrist at the Paquette Center for Psychological Services, who has treated the applicant since April 2000. It is noteworthy that in her first treatment note dated April 20, 2000, Dr. Center noted that the applicant had no prior history of depression or anxiety, and that her symptom followed her problems with a coworker. She opined that the applicant currently had depression with vegetative signs, and anxiety and panic attacks, related to events at Columbia Correctional Institution. She opined the incidents of November 17, 1999 and March 1, 2000, caused these problems directly, and by occupational exposure or disease. She added that she has longstanding depression and inability to work since March 2000, and she "would not anticipate that this patient will be able to return to the corrections setting."
Exhibit O is an updated report from Dr. Center which includes diagnoses of post-traumatic stress disorder, MDE (a reference to major depression) and pain disorder, all directly caused by work with a March 1, 2000 date of injury. Dr. Center stated there would be permanent disability, but when asked for percentage wrote "none" which the commission infers meant she declined to rate disability at that point. Dr. Center added the prognosis was poor regarding return to work, and that the applicant would need treatment for the foreseeable future.
Dr. Center completed a DETF Duty Disability Medical Report on April 25, 2001. She again diagnosed post-traumatic stress disorder, major depression, and pain disorder. She opined that while the applicant's depression might improve, she would not be able to return to work in corrections. See exhibit E, item DETF exhibit C.
Dr. Center also filled out a DETF form duty disability report in late 2002 or early 2003, in which she reiterated her diagnosis of major depression and panic disorder, an impairment that caused the applicant to cease working and that was the result of a work related illness or injury. She added that she did not anticipate improvement and had no return date to work. See exhibit O.
Because this is a non-traumatic mental distress case, DETF sent Dr. Center another form in which she stated her opinion the stress experienced by the applicant came entirely from the applicant's history. She added the stress was caused as follows:
Pt identifies a series of events involving a coworker who was threatening to her, other officers, and the facility. She felt the work environment became unsafe and feared retaliation.
Dr. Center felt that this was extraordinary stress because the applicant felt threatened and unsupported in a way as to make her work with inmates dangerous. Exhibit E, item DETF exhibit F.
Exhibits K and N include a DETF form report from Amy Bourne, M.D., of Madison Psychiatric Associates dated July 16, 2001. Dr. Bourne is the psychiatrist appointed or approved by DETF under Wis. Stat. § 40.65(2)(b)2. See exhibit E; items DETF exhibits H and I. She did not actually treat the applicant.
Dr. Bourne diagnosed permanent post-traumatic stress disorder, and anxiety, which might improve though she doubted the applicant would ever be able to return to work. More specifically, the doctor noted the applicant's depression and anxiety might improve somewhat or completely with time, but the post-traumatic stress was a chronic condition with a fairly poor prognosis. She stated the disease that caused the injury was
Threats made by coworker, hostile environment, sense of lack of support by her employer, harassment (vehicle hit, home vandalized, frequent crank calls)
In her accompanying examination note from July 16, 2001, Dr. Bourne noted the applicant had no prior history of depression, anxiety or schizophrenia, and relied on that history in reaching her opinion on causation. She marked affirmatively the box on the form that indicated that the disability was from disease.
Dr. Bourne also completed a practitioner's report on form WKC-16B. Dr. Bourne's responses on this form were consistent with those given on the DETF forms. The doctor added a description of the disability which included high anxiety, sweats, chest pain, shortness of breath, nausea, diarrhea, nightmares, headaches, poor concentration, fear, problems sleeping, depression. She again stated that the applicant's post-traumatic stress disorder, depression, and anxiety might improve, but she would not be able to work in corrections.
Dr. Bourne also completed a report dealing with mental stress particularly. Asked what stress caused the disability, Dr. Bourne stated:
Pt was threatened by coworker. While working same shift w/this coworker whom she had reported as threatening to her, he locked her out of the station without radio for help, her weapon, or any means to help self -- on a maximum security unit. Continues to be harassed with vandalism to her home/vehicle and over the phone.
Asked why this was extraordinary stress, in comparison with employees in the occupation of prison guard generally, the doctor responded:
As far as I am aware, security is always enforced and coworkers do not expose their colleagues to unacceptable risks such as locking them out on the ward with the prisoners without any way to protect themselves. Also making threats to kill others, bringing a bomb into the building is not day-to-day stress or tension. The person's coworker had made these threats in front of her.
Asked about the permanency of the condition, Dr. Bourne responded:
Currently her mental capacity in the workplace would be very poor. She is suffering from PTSD, which tends to be chronic & difficult to treat. With intensive therapy and medications she may one day be able to return to same duties with a different employer but this would need to be assessed on a yearly basis.
Exhibit E, item DETF exhibit K.
Exhibit P is from Richard K Westphal, M.D., a doctor who has treated the applicant for myofascial pain disorder for several years, preceding the events of November 1999 and March 2000. He reported that the depression and anxiety she experienced with those events made her condition worse. He noted she was able to maintain her function before those events, but that the condition was made markedly worse, with more frequent headaches and photophobia, since her work related stress problems in 2000.
The respondent retained N. Timothy Lynch, Ph.D., whose report is at exhibit 23. His report begins by detailing applicant's extensive medical history before the events of November 17, 1999 and March 1, 2000, including not only the myofascial pain documented by Dr. Westphal, but also numerous notations of depression, anxiety, need for psychiatric assessment, the illness and death of her mother, legal problems of her son, and being accosted/assaulted off-duty. Dr. Lynch also considered the statement of Ms. Brooks concerning the applicant's desire to take mental health leave due to non-work related stress.
Dr. Lynch's diagnosis was dysthymic disorder (depression). He noted also other problems including sleep disturbance, panic, fearfulness, severe headache, a history of depression and anxiety. He noted, too, that the applicant had told her doctors she did not have a prior history of depression and anxiety, though both conditions are mentioned in her medical notes. He thought her current condition was caused by her underlying personality problems and her history of anxiety and depression. He did not think the work incidents aggravated this condition beyond its normal progression, or that her work exposure was a material contributory causative factor in the condition's onset or progression. Dr. Lynch opined the applicant had a level of depression that was controlled, and that she had no functional impairment that would interfere with her ability to work.
2. ALJ decision; discussion
The ALJ found that the work incidents happened as the applicant described them, that they were "unusual stress" that caused a compensable mental injury, and that she was disabled from her employment as a result. The respondent appeals.
a. Did work incidents happen?
The respondent contends the applicant's testimony about the November 17, 1999, and March 1, 2000, work incidents involving Sgt. Knapton was not credible, noting the numerous inconsistencies:
Some of the discrepancies are minor. For example, the inconsistency about whether Sgt. Knapton mentioned a liquid or powder poison seems relatively unimportant. The applicant's tone in her call to Mr. Brooks when she asked for relief could have been different than her tone when she called Sgt. Dunahay later after being locked out of the bubble. Sergeant Knapton did not deny discussing poison in his statements during the investigation with the applicant, but rather suggested he may have done so in the context of his military service. Further, to the extent that the applicant's credibility is called into question by the testimony from Mr. and Mrs. Brooks, the credibility of these witnesses are themselves suspect. The employer disciplined Mr. and Mrs. Brooks -- and reduced then-Captain Brooks in rank -- for falsifying timesheets.
The inconsistencies in the applicant's testimony cannot be lightly dismissed, however. Particularly troubling is the fact the applicant did not immediately report the pipe bomb/poison threat in November 1999, but let herself be put off by "scolding" from then-Captain Brooks. Also quite significant is that Sgt. Knapton complained about the applicant to then-Captain Brooks following the November 17, 1999 incident before she complained about him, and that her first question to then-Captain Brooks -- even in her own version of events -- was about why she was not working with Knapton rather than just telling the captain about the bomb threat.
However, Sgt. Knapton did not testify at the hearing to contradict the applicant's testimony. This is not a case where, confronted with firsthand testimony from two opposing witnesses about how the incidents at issue occurred, inconsistencies lead the commission to credit one version of events over the other. The inconsistencies identified by the respondent are raised to discredit -- or raise legitimate doubt about -- the applicant's testimony by inference and thus persuade the commission to reject the applicant's testimony on that basis rather than conflicting firsthand testimony.
The commission may, of course, find legitimate doubt based on inconsistencies in the record, even in the absence of direct refutation by firsthand testimony from Sgt. Knapton about whether the events at issue happened. See: Leist v. LIRC, 183 Wis. 2d 450, 456-57 (1994); Kowalchuk v. LIRC, 2000 WI App 85, ¶¶ 24-26, 234 Wis. 2d 203. In this case, however, the inconsistencies considered with the record as a whole do not raise legitimate doubt about the applicant's testimony as to the events of November 17, 1999 and March 1, 2000. Rather, the commission concludes the events of those days happened in essentially the way the applicant testified they happened. Indeed, the administrative law judge who was present at the hearing and able to observe the applicant as she testified credited her version of events.
b. Diagnosis and extent of disability.
The respondent contends the medical/psychological report of Dr. Lynch was more credible than that of Drs. Center, Bourne and Westphal. On this point, the respondent contends the applicant failed to tell those doctors about her prior history of depression and anxiety, that she "fudged" the facts of the encounters with Sgt. Knapton, and that only Dr. Lynch knew of Ms. Brook's testimony about the applicant's desire for the mental health leave in early 2000.
The commission is not inclined to reject the opinions of these doctors on the basis of Mrs. Brook's testimony about the applicant's desire for a mental health leave in early 2000. The applicant denied making the statement and, again, there is reason to question Mrs. Brooks veracity given her discipline for timesheet falsification. Further, given the fact that Drs. Bourne and Center -- both psychiatrists -- actually examined the applicant and determined her to be disabled from depression, undercuts the inference from Mrs. Brooks testimony that the applicant was not actually disabled from depression but rather exaggerated her condition to get an unpaid leave. In other words, rather than questioning the opinion of Drs. Bourne and Center, the commission wonders if Dr. Lynch allowed these comments from Mrs. Brooks to play too large a role in his clinical judgment.
Nor is the commission persuaded that the opinions of Dr. Center and Bourne should be discounted because the applicant "fudged the facts" of the incidents with Sgt. Knapton. As an example of fudging, the respondent points to Dr. Bourne's recorded notation that Sgt. Knapton had locked her out of their station without her body alarm, radio, or keys so the patient had no way to protect herself. The respondent suggests that Dr. Bourne was not aware the inmate cell doors had opened or that the applicant had access to a phone. However, the commission infers that if Dr. Bourne had actually understood that the inmate cell doors been opened while the applicant was in the common area leaving the applicant in the actual presence of segregated inmates with no means of escape or protection, she would have affirmatively recorded that in her notes. The commission notes also that Dr. Bourne is not the applicant's treating doctor. She is rather a doctor approved or authorized by DETF for the purposes of the duty disability second opinion.
The commission appreciates that the medical records going back to the early 1990s, mention anxiety, depression, the prescription of anti-depressant medications and referrals for treatment. While these notations are not trivial, neither do they establish disabling depression and anxiety either. The commission appreciates that the applicant -- a single parent with a dying mother who raised two sons with their own problems as young adults -- had other stressors in her life. However, she was able to remain employed, and perform the stressful duties of corrections officer, until March 1, 2000. Indeed, that was the conclusion of Dr. Westphal, and Dr. Lynch's report documents that he was aware of stresses posed by the applicant's mother and children and her Amitriptyline prescription, as well as the diagnoses of myofascial pain and headache. The commission accordingly adopts the opinions of Drs. Center, Bourne and Westphal regarding causation and extent of disability.
c. Unusual stress
This leaves the third issue, which is whether the events of November 17, 1999 and March 1, 2000 are compensable under the standard set out in 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 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. 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 courts have adhered to the School District No. 1 formulation in a number of succeeding cases, outlined by the ALJ in his decision: Swiss Colony, Inc. v. ILHR Department, 72 Wis. 2d 46, 51 (1976); Probst v. LIRC, 153 Wis. 2d 185, 190-91 (Ct. App., 1989); Random Lake v. LIRC, 141 Wis. 2d 559, 562 (Ct. App. 1987); and Jensen v. Employers Mutual Casualty Company, 161 Wis. 2d 253, 268 (1991).
As the ALJ and the parties recognized, the School District No. 1 standard applies in duty disability cases under Wis. Stat. § 40.65. See Random Lake, 141 Wis. 2d at 565-66. Further, the commission has generally applied School District No. 1 to require stress, strain, and tensions greater than the day-to-day stresses that all similarly-situated employees must experience. This "similarly-situated test" was approved by the court of appeals in Probst, 153 Wis. 2d 185-86, so the commission must consider what unusual stress is for prison guards or correctional officers.
Applying a similarly-situated test, however, the stress experienced by the applicant meets the standard set out in School District No. 1. Sergeant Knapton's threats to bring poison and bombs into the correctional facility on November 17, 1999, as well as his behavior toward the applicant personally on November 17, 1999, and March 1, 2000, raised questions about his stability. Thereafter, Sgt. Knapton locked the applicant out of the bubble into the common area without the required personal protective gear. Mr. Schneider's testimony notwithstanding, such threats and conduct from a supervisor and fellow officer on whom the applicant must rely for her own personal safety created a situation greatly exceeding the daily stress of a correctional officer. Rather, Sergeant Knapton's conduct created a situation of greater dimensions than the day-to-day emotional strain and tension which all correctional officers must experience, a situation so far out of the ordinary from the countless emotional strains and differences that employees encounter daily without mental injury that her psychological injury is compensable under the worker's compensation statutes.
3. Award.
The applicant, a protective occupation participant, was injured while performing her duty. Specifically, she suffered a compensable, disabling injury from post-traumatic stress disorder and depression caused by the events of March 1, 2000. This disability is likely to be permanent and has required the applicant to retire from her job as a corrections officer. She has met the criteria for entitlement to a duty disability under Wis. Stat. § 40.65(4).
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed. The Department of Employee Trust Funds shall compute the monthly benefits payable to the applicant under Wis. Stat. § 40.65 and review and alter those benefits on a periodic basis as required by that statute.
Dated and mailed August 3, 2006
cimarol . wrr : 101 : 8 ND § 3.41
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
cc:
Attorney Kevin C. Potter
Attorney Jeff Scott Olson
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