BRYAN D JACKSON (DEC'D), Applicant

CNA FINANCIAL GROUP, Employer

CONTINENTAL CASUALTY 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 August 27, 2009
jacksbr . wsd : 175:9 ND 3.36, 3.41

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The applicant in this case, the deceased employee's widow, asserts in her petition for commission review the administrative law judge erred in determining the applicant failed to establish that Mr. Jackson sustained a non-traumatic mental injury arising out of his employment while performing services growing out of and incidental to that employment. The applicant states the commission should conclude that the deceased did experience an accident causing mental injury arising out of his employment, and the credible medical evidence demonstrated the work incident on July 31, 2006 was a substantial factor in triggering the bout of mental illness which resulted in his suicide three days later. The applicant states that Mr. Jackson's guilt or remorse over the email incident and his removal from the workplace, his suspension and mandatory psychiatric evaluation, all led him to obsess over the email episode and his co-workers' reaction to removal from the workplace.

However, the administrative law judge appropriately noted the first link in the chain that must be established is a compensable injury, and the claim is that the applicant sustained a non-traumatic mental injury as a result of the circumstances of his suspension at the employer on July 31, 2006. Pursuant to School Dist. No. 1 v. DILHR, 62 Wis. 2d 370, 377-78 (1974), 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 the statute be found. The administrative law judge appropriately noted the application of an objective test must determine whether the duties of the applicant's job subjected the applicant to greater stress than those who are similarly situated.

In this case the evidence indicates the applicant was not subjected to unusual stress that similarly situated employees were subjected to. The evidence indicates the employer acted reasonably in removing the applicant from the premises on July 31, 2006 following his email on July 25, 2006. The employer reasonably could have interpreted the email as being threatening, and the applicant was suspended from employment and removed from the premises with a security escort on July 31, 2006. The commission agrees with the administrative law judge that similarly situated employees sending threatening emails would undoubtedly be subjected to the same or similar types of actions resulting in similar emotional stress and strain as those experienced by Mr. Jackson.

The evidence indicates the applicant had a history of treatment for depression. The deceased underwent an evaluation with Dr. Patel on August 2, 2006, which concluded the deceased was not a threat to employees at work. In addition Dr. Voelkel concluded the applicant was neither suicidal nor homicidal on August 2, 2006. Given the evidence of the employer's actions on July 31, 2006 in response to the applicant's email, the evidence does not establish that the applicant was subjected to greater stress or emotional strain and tension than those experienced by similarly situated employees. Therefore it was not established the applicant suffered a non-traumatic mental injury arising out of his employment while performing services growing out of and incidental to that employment on July 31, 2006. The commission affirms the administrative law judge's order dismissing the applicant's claim.

cc: Attorney Thomas M. Domer
Attorney Joseph Danas
Asst. Attorney General Corey Finkelmeyer
Abby Butler

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2009/09/18