PHYLLIS ITO PITSCH, Applicant
LEBLANC, Employer
PACIFIC INDEMNITY CO, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.
The findings and order of the administrative law judge are affirmed.
Dated and mailed April 30, 2009
pitschp . wsd : 101 : 1 ND 3.41
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
At issue here is whether the applicant has proven psychological injury and disability caused by sufficient mental stress under the standard required to establish liability for a non-traumatic mental injury by School District No. 1 of Brown Deer v. DILHR, 62 Wis. 2d 370 (1974).
In School District No. 1, the court explained that despite the broad definition given to "accident" under this state's worker's compensation law, the term does not encompass every occurrence or event which befalls an employee while performing service growing out of or incidental to employment. The court noted that the worker's compensation statute was not intended as accident insurance or a health insurance measure. The court found that to be especially true of cases involving alleged mental injuries. Id., at 62 Wis. 2d 374-376. The court observed, too, that it has always exercised a degree of hesitancy in granting compensation for mental injuries, especially those injuries of nontraumatic causation.
Thus, the School District No. 1 court held, that in order to be compensable:
"mental injury nontraumatically caused must have resulted from a situation of greater dimensions than the day-to-day emotional strain and tension which all employees 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 serious mental injury will liability under ch. 102, Stats., be found."
School District No. 1, at 62 Wis. 2d 377-78. See Swiss Colony, Inc. v. ILHR Department, 72 Wis. 2d 46, 51 (1976).
The court went on to say that the facts of the case in School District No. 1, where a high school guidance counselor claimed a mental injury from the receipt of critical remarks from students, showed only "an occurrence encountered by numerous other employees in their day-to-day employment." However, the court also said it did not intend to "close the door" to those situations in which compensation may be warranted, stating:
"In refusing to find the employer liable under ch. 102, Stats., in the instant action, however, we do not intend to close the door to those situations in which compensation may be warranted. We do not believe that an average man who, after being criticized and berated by an employer or whomever for a significant period of time, suffers a mental injury should be denied compensation. The common sense viewpoint of the average man would deem such a situation to be accidental and liability would be found under sec. 102.03 (1) (a). Such a situation would undeniably be so out of the ordinary from the countless emotional strains that an employee encounters daily that this court could effectively evaluate the mental injury allegedly incurred."
School District No. 1, at 62 Wis. 2d 378.
On appeal, the applicant appeals, asserting that her disability was caused by extraordinary work stress, including:
Increased duties as Safety and Environmental Manager.
Being assigned human resources duties, and subsequently being named Human Resources Manager for the Kenosha plants and assuming all the responsibilities that go with the job.
A 33 to 43% increase in hours worked.
Increased worries about safety risks.
The commission, like the ALJ, is persuaded that the applicant's work duties did not meet the standard for compensability set out in School District No. 1. There is no evidence the employer expressed dissatisfaction with the applicant's performance, much less that she was criticized or berated. While her responsibilities increased, that is a common occurrence in the workplace, particularly for workers who do their jobs well. Further, Dr. Roehirch's opinion raises a significant question as whether the applicant was subjected to unusual stress at work, as opposed to simply being unusually susceptible to the adverse effects of workplace stress.(1)
cc:
Attorney John P. Higgins
Attorney Ahmed Quereshi
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]