CHERIE L TUCKER, Applicant
MCDONALDS, Employer
UNITED WISCONSIN, Insurer
The applicant submitted a petition for commission review, alleging error in the administrative law judge's Findings and Order issued in this matter on September 15, 2008. McDonald's and United Wisconsin (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue are whether or not the applicant sustained a nontraumatic mental injury arising out of and in the course of her employment with the employer, and if so, what are the nature and extent of disability and liability for medical expense.
The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses his Findings and Order. The commission makes the following:
The applicant, whose birth date is March 1, 1974, began her employment with the employer as a cashier/cook on July 26, 2005. On March 14, 2008, she was taking orders at McDonald's drive-through when a male customer started complaining to her about his food order that had been "messed up" by a co-worker the previous day. The applicant and the customer began arguing with each other and cursing at each other. When the customer pulled up to the food delivery window to receive his food they were still arguing. The applicant told the customer to talk to the assistant manager, and she slammed shut the window.
The customer came into the restaurant and approached the assistant manager, Paulette Agnew. The applicant then came up to both of them and began arguing again with the customer, while Agnew tried to talk to the customer. Agnew told the applicant to go back to her work, but for a time the applicant continued to argue with the customer. The applicant eventually backed off, and Agnew was able to calm down the customer after promising him a replacement meal. The customer left, but as he was walking to his car the applicant went back to the drive-through window and began another verbal exchange with him, that included her cursing at him. At this point the customer pulled out a handgun from his belt, but did not point it at the applicant. The applicant then yelled two or three times: "What are you going to do mother fucker, shoot me?" The customer got in his car and drove away.
The applicant was upset, shaking, and crying shortly after the incident, but she continued to work and finished her shift, which lasted about 4 1/2 more hours. She did not ask to go home. The applicant did talk to the restaurant manager, Terrence Eggleston, when he arrived about 40 minutes after the incident. She was very upset and told Eggleston about the customer and the handgun. After Eggleston listened to her, took statements from co-workers, and reviewed the store videotape of the incident, he let the matter drop because he "...did not feel like it was a major incident that had happened."
The applicant telephoned Eggleston after she had gone home that evening, and after learning from him that he did not intend to contact the police, she went that evening to the police station herself and reported the incident. The police took the report but there is no indication of whether or not they performed an investigation. The applicant has not returned to work since the day of the incident.
The applicant became emotionally distraught after the incident and secured an appointment with her physician for Monday, March 17, 2008. Her physician referred her to a psychiatrist, Dr. Victoria Fetter, who began treatment and diagnosed: "PTSD (held up at gunpoint)." Dr. Fetter completed a WKC-16-B dated April 4, 2008, in which she described symptoms of post traumatic stress disorder (PTSD) for a diagnosis, indicated the applicant was unable to work, and also indicated that the applicant should have psychotherapy "at least two times a month for a few years."
On April 25, 2008, the applicant underwent a psychological evaluation from Dr. Terrill L. Bruett, a psychologist. Dr. Bruett had the correct history of the incident, indicating in his clinic note that the customer "proceeded to show her that he had a gun in his waistband." Dr. Bruett recounts that the applicant is unable to get over the incident, has nightmares, cries frequently, is depressed, and has trouble sleeping. Dr. Bruett also noted that the applicant has a history of sexual abuse from her maternal uncle from ages 6 to 12, and that even though she reported the abuse, her mother did not believe her. She told Dr. Bruett she would like to go back to work, but is certain she could not go back to the fast food industry because of the incident. The employer offered to bring her back to work at a different restaurant, but she did not accept this offer, and has not worked elsewhere since the incident of March 14, 2008.
Dr. Bruett opined that the applicant's testing showed a high degree of emotional instability, and that the work incident exacerbated her emotional problems, so that she now exhibits a high degree of paranoia and depression. Dr. Bruett further opined that the traumatic work exposure caused significant emotional problems, and that therapy will be needed for at least a year ". . . to solidify her return to work when she is able to do that in the next 2 to 4 months." Dr. Bruett completed a WKC-16-B dated June 9, 2008, which referred to his report of April 25, 2008, and indicated the applicant was permanently unable to work in the fast food industry.
At respondents' request, Dr. Calvin Langmade, a psychologist, evaluated the applicant on July 21, 2008, and recounted a lengthy history of the applicant's preexisting problems. These include the extended period of incest, and the PTSD he believes stemmed from that abuse; preexisting depression; abuse of alcohol, cocaine, and marijuana, with the marijuana abuse ongoing; and being put out of her house by her mother at age 13. Dr. Langmade also emphasized the fact that the applicant verbally went toe-to-toe with the customer, engaged in a shouting and cursing match with him, and taunted him to shoot at her. He opined that this does not present the picture of an individual who was frightened or intimidated by the customer. He also emphasized the fact that the applicant was able to finish her shift, and that Dr. Fetter's history inaccurately talked about being "held up at gunpoint." Dr. Langmade opined that the applicant has chronic PTSD related to anxiety and depression from her past experiences, a narcissistic personality that causes her to exaggerate her illnesses, ongoing substance abuse, and recurrent depression, but no work-related psychological injury. Instead, he opines that there has been a mere manifestation of preexisting psychological problems.
On July 30, 2008, Dr. Langmade submitted a supplemental response to Dr. Bruett's report. Dr. Langmade reiterated his opinions from his first report, and contrasted them with Dr. Bruett's opinion. In response to Dr. Langmade's report, Dr. Bruett submitted an undated letter in which he emphasized the fact that the applicant had been working for well over two years prior to the work incident, but thereafter was emotionally distraught and unable to return to work.
The applicant had substantial preexisting psychological problems. The employer had also reprimanded her in the past for using profanity and arguing with co-workers. Accordingly, it is no surprise that the applicant became argumentative and loud with the complaining customer, and cursed at him just as he cursed at her. However, it is well settled that employers take employees "as is,"(1) and the applicant's preexisting psychological and personality problems cannot in themselves defeat her claim. Respondents argue that the applicant's confrontational actions against the customer turned an ordinary customer complaint into a more serious event, and therefore her claim should be denied because she allegedly stepped out of the scope of her employment by escalating the confrontation.(2) Respondents also assert that a customer complaint about poor food or service is not such an unusual event as to satisfy the "unusual stress" standard for allowing recovery for nontraumatic mental injuries.(3)
Unlike the worker in Vollmer, it was the customer, not the applicant, who began the confrontation. The applicant did prolong the incident by going back to the drive-through window and yelling again at the customer after he had left the building and was headed to his car. This was an impulsive act, that the commission infers was the result of the applicant's continuing anger stemming from the incident originally begun by the customer. It was certainly unsatisfactory behavior, but merely constituted a continuance of the customer-originated dispute, and did not involve a physical assault as occurred in Vollmer. Had the customer not subsequently revealed in threatening fashion that he had a handgun, the entire incident would have amounted to no more than a verbal confrontation, albeit one involving strong emotion and cursing. The applicant acted inappropriately and unwisely, both in the language she used and in the degree of anger she exhibited towards the customer. However, her actions were not so disconnected from her employment duties as to have taken her outside the scope of her employment.
The commission agrees with the respondents that a customer complaint, with an ensuing argument, is not such an unusual event as to meet the unusual stress test of School District Number 1. However, it is unusual for a worker to have a handgun threateningly exhibited to her in the midst of an argument. The applicant credibly testified that after the confrontation was over, she was emotionally "tore up," and "scared." She was required to contact the police herself. Since the incident, she has experienced ongoing symptoms of depression, insomnia, nightmares, hypervigilance, crying spells, and generalized anxiety. The applicant has submitted credible medical support for her psychological disability, a disability that is in strong contrast to her ability to work for the employer for over two years prior to the work incident. In consultation with the commission, the administrative law judge indicated that he did not believe the applicant was malingering. This is consistent with the commission's inferences drawn from the evidence, including the applicant's steady work record prior to the work incident, as well as Dr. Bruett's and Dr. Fetter's medical opinions.
The administrative law judge was understandably troubled over the fact that the applicant yelled and cursed at the customer after he had revealed that he had a handgun, essentially daring him to shoot at her. The administrative law judge inferred from this behavior that the applicant was not frightened or intimidated by the handgun, and it is argued that seeing a handgun was not unusually stressful for her as an individual. However, the commission infers from all of the evidence presented that the applicant was acting out of blind rage when she taunted the customer about shooting at her. Her behavior in this respect was irrational, and is explained by her obvious lack of control over her emotions at the time of the incident. The commission additionally infers from the symptoms the applicant has experienced subsequent to the incident, the medical opinions of Dr. Bruett and Dr. Fetter, and the fact that the applicant felt the need to contact the police about the incident as soon as she learned her supervisor did not intend to do so, that she did perceive the incident to be threatening and unusually stressful.
Finally, respondents take issue with the validity of Dr. Fetter's medical opinion, given the fact Dr. Fetter took an incorrect history on March 22, 2008, indicating that the applicant had been "held up at gun-point." Additionally, in her WKC-16-B dated April 4, 2008, Dr. Fetter described the work incident as the applicant working in a drive-through when "... a man came and put a gun to her head, or something to that effect." Clearly, Dr. Fetter should have been more careful in securing and describing the exact circumstances of the incident, and her inaccuracies do diminish the usefulness of her opinion on causation. However, Dr. Bruett did have an accurate understanding of the facts, his causation opinion is credible, and Dr. Fetter's diagnosis of the applicant's disability is consistent with that given by Dr. Bruett.
The commission therefore finds that on March 14, 2008, the applicant sustained a nontraumatic mental injury arising out of and in the course of her employment with the employer. As a result of this injury, she was temporary totally disabled from March 15, 2008, through the date of hearing on August 7, 2008. This was a period of exactly 22 weeks, which at the applicable rate of $190.67 per week, amounts to a total of $4,194.74. The applicant's attorney is entitled to a 20 percent fee plus $1,452.05 in costs to be subtracted from the applicant's award. The applicant sustained reasonable and necessary medical expenses as partially detailed in Applicant's Exhibit I (the exhibit notes the fact that billing records from Dr. Fetter were not yet received). The expenses include $84.84 due St. Mary's Family Health; $24 due Nakoda Cognitive Behavioral Services; $11 due the applicant for reimbursable prescription expense; and $59.06 due the applicant for medical mileage expense. There is also indication of $2,026.21 in third party payments, and the applicant may choose to request reimbursement to the third party under the interlocutory provisions of the commission's Order.
Dr. Bruett's opinions regarding the possible need for additional psychological treatment, and/or additional disability are accepted as credible. Accordingly, the commission's Order will be interlocutory with respect to all issues, except with respect to the issue of work causation, which is determined herein on a final basis.
Now, therefore, this
The Findings and Order of the administrative law judge are reversed. Within thirty days from this date, respondents shall pay to the applicant the sum of one thousand nine hundred three dollars and seventy-four cents ($1,903.74); to the applicant's attorney, Gordon R. Leech, fees in the amount of eight hundred thirty-eight dollars and ninety-five cents ($838.95) and costs in the amount of one thousand four hundred fifty-two dollars and five cents ($1,452.05); to St. Mary's Family Health the sum of eighty-four dollars and eighty-four cents ($84.84); to Nakoda Cognitive Behavioral Services the sum of twenty-four dollars ($24); to the applicant as reimbursement for reimbursable prescription expense the sum of eleven dollars ($11); and to the applicant as reimbursement for medical mileage expense the sum of fifty-nine dollars and six cents ($59.06).
Jurisdiction is reserved for such further Findings and Orders as may be warranted.
Dated and mailed May 28, 2009
tuckech : 185 : 5 ND § 3.41
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc: Attorney Gordon R. Leech
Attorney Thomas M. Rohe
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