DANIEL R BRAWN, Applicant
COUNTY OF WASHINGTON, Employer
COUNTY OF WASHINGTON, 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
January 30, 2012
brawnda . wsd : 101 : 5 ND6 3.42
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
The applicant has been a sheriff deputy for Washington County since 1990. He has encountered life and death situations on several occasions while doing his job. He particularly recalled an event in 1991 when he did CPR on a child involved in an automobile accident who later died. He also has responded to suicide calls, including situations where he arrived on the scene after someone had killed themselves. He testified about another time when he responded to a call and the suspect, a young man who had been arguing with his girlfriend, shot himself.
The applicant's claim is based on a particular incident occurring on May 8, 2008. On that date, the applicant and his partner were called to check on a person who was acting irrationally. The two officers stopped the man, Marc Rosario. After they stopped him, Rosario took his glasses off and "made what looked like a slashing motion at his wrist," so the officers took him to a hospital for evaluation. While at the hospital, the applicant and his partner met up with a third deputy who searched Rosario's wallet. The third deputy handed the applicant a card from Rosario's wallet to make sure it was not concealing a pocket knife, and the applicant determined it was not. However, the third deputy examined another item which, from a distance, the applicant believed looked like some kind of hunting bandage. The third deputy and the applicant discussed the item, which the third deputy manipulated and put back in the wallet. The applicant then allowed Rosario to have his wallet back.
From the hospital, the applicant and his partner took Rosario in a squad car to the Winnebago Mental Health Center. While he was in the squad car, Rosario--who was handcuffed--removed his wallet from his pocket and took out the item that looked like a hunting bandage. In fact, the item was a miniature scalpel, and Rosario used it to cut open an artery in his neck. The applicant attempted to render first aid and in the process was covered with Rosario's blood. Rosario died on the scene.
The applicant testified that about a week after the event, he began treating with a social worker, Patty Keuck. He saw Ms. Keuck on a number of occasions thereafter for therapy sessions. She referred him to his family doctor, who in turn referred him to psychiatrists, who have prescribed medication.
The applicant did not actually miss work until October 22, 2009, several months after the incident. He awoke early that morning, around 4:00 a.m., and believed that he saw Rosario in the hallway outside his bedroom. His psychiatrist prescribed medication to help him deal with hallucinations. He felt better and in fact returned to work in January 2010. However, the effect of the medication gave him difficulty with his sleep, and he had trouble waking for work in the morning and then staying awake. He saw his doctors again and they took him off work. As of the date of the hearing, he had not returned to work.
The applicant's medical expert, Rajesh Kumar, M.D., opines that the applicant was at least temporarily disabled due to psychological conditions--post-traumatic stress disorder, anxiety, agoraphobia--directly caused by the May 8 incident. Exhibit A. A psychologist who examined the applicant on behalf of the employer, Calvin Langmade, Ph.D., likewise diagnoses post-traumatic stress disorder, which is temporarily disabling. Exhibit 5. Dr. Langmade opined that while the applicant's mental condition was caused by the circumstances of May 8, 2008, the applicant did not sustained unusual stress for similarly-situated employees.
Dr. Langmade's opinion raises the standard of causation for nontraumatic mental injuries originally set out in
School District No. 1 of Brown Deer v. DILHR, 62 Wis. 2d 370 (1974). In that case, 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 services 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. The court explained that its hesitancy is based on the concerns of malingering or opening the floodgates of fraudulent claims.
Thus, the 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.
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.
Indeed, it was that type of situation which the court addressed next in Swiss Colony, Inc. v. ILHR Department, 72 Wis. 2d 46, 51 (1976), where compensation was allowed. The supreme court has since described the School District No. 1 standard 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 v. Employers Mutual Casualty Company, 161 Wis. 2d 253, 268 (1991). The court of appeals also stated that Swiss Colony stands for the proposition that "injury includes emotional stress without physical trauma if it arises from exposure to conditions and circumstances beyond those common to everyday life." International Harvester v. LIRC, 116 Wis. 2d 298, 302 (Ct. App. 1983).
The court of appeals addressed the issue of the School District No. 1 standard as it applies to law enforcement officers in Bretl v. LIRC, 204 Wis. 2d 93 (Ct. App. 1996). Bretl, a police officer, shot and wounded a suspect who had threatened him. Thereafter, Officer Bretl filed a claim for post-traumatic mental stress based on this incident. The record showed that Officer Bretl also had a number of other stressors in his personal life. The commission specifically found that Officer Bretl did not suffer post-traumatic stress syndrome from the shooting incident, thus denying the claim on that basis apart from the legal test in School District No. 1. However, the commission also concluded that--even if the incident had caused the post-traumatic stress syndrome--shooting a suspect in the line of duty was "not outside the norm for a small town police officer." Bretl, at 204 Wis. 2d 104.
In Bretl, the commission considered that Officer Bretl was an experienced officer and member of the city's SWAT team, that the police chief testified that such a shooting incident was not unusual for police officers, that Officer Bretl first fired warning shots, and that Officer Bretl did not intend to (and, in fact, did not) kill the suspect. After assessing the evidentiary details, the commission concluded that
Although clearly the shooting incident was not an everyday event and was an unfortunate incident . . . the incident did not constitute unusual stress of greater dimensions than the day to day emotional strain and tensions experienced by police officers.
Bretl, supra, at 204 Wis. 2d 106.
The court of appeals affirmed the commission in Bretl v. LIRC, noting that the School District No. 1 standard:
mandates the application of an objective test. LIRC is required to determine whether the duties of the job subject the claimant to greater stress than those who are similar situated.
Bretl, 204 Wis. 2d at 106.
However, the court of appeals appended this footnote to its decision affirming the commission:
We add a note of caution. The ALJ decision appeared to adopt a "bright line" rule that law enforcement officers can never contract employment related emotional injuries from shooting a suspect. However, the objective test that was first discussed in
Probst requires LIRC to individually assess each claim. It is clear that LIRC did so in this case. It is not so clear that the ALJ decision did so. We can envision a number of situations faced by a law enforcement officer that exceeds the day-to-day emotional strain all law enforcement officers experience;
e.g., shooting a juvenile carrying a toy gun that resembled a real weapon.
Bretl, 204 Wis. 2d at 107, footnote 1.
In the case now before the commission, both sides provide expert testimony to aid in determining whether the May 8 incident, which caused the development of his disabling psychological condition meets, the "extraordinary stress standard" set out in School District No. 1. The applicant relied on the testimony of Lloyd Uelmen who retired as chief of the West Bend Police Department in 2003. Mr. Uelman testified without contradiction from the employer's expert that while the Washington County Sheriff's department personnel might respond to more traffic fatalities, generally the types of incidents that the West Bend police and the Washington County Sheriff would be involved in would be very similar. (Transcript, page 62).
Mr. Uelmen testified that he believed the facts in this case met the School District No. 1 standard. In his written report at Exhibit C, Mr. Uelmen noted that while police officers may be expected to respond to the scene of a particularly gory accident or crime scene during the course of their career, it is not a day-to-day experience. Further, in both his testimony and his report, Mr. Uelmen placed special emphasis on the fact that Mr. Rosario took his life directly in the presence of the applicant while in custody with him. Specifically, he testified:
I think the thing that probably makes it more unique than anything is that it's out of the ordinary for someone who takes their life directly in the presence of officer while in custody with an officer. I don't recall any incident of that nature during my time on the police department or any place within -- certainly not within the City of West Bend, but any place that I was aware of within our geographical area.
(Transcript, page 65). In his written report, Mr. Uelmen also noted the responsibility that a police officer, such as the applicant in this case, would have when the suspect kills himself while in the officer's custody.
The employer's expert, Washington County Sheriff Dale Schmidt, testified to the contrary. He did not think the situation the applicant was involved in met the School District No. 1 standard. He described one similar incident where a suspect killed himself while in the custody of a deputy sheriff, which was a suicide in a jail. He also testified that it was expected that officers would render medical assistance and in fact did so in various situations frequently.
Asked on cross-examination what he felt would be unusual stress for a police officer, Sheriff Schmidt first stated he couldn't give an example of what that level of stress would be (Transcript, page 99). He later discussed the very same example that the court of appeals did in Bretl, killing a child. However, Sheriff Schmidt also testified that would not be an unforeseeable event, although an unusually highly stressful one. (Transcript, page 102).
As the parties point out in their briefs, the commission has considered a number of other cases where law enforcement officers have sought duty disability for mental stress: Balistreri v. City of Madison, WC Claim No. 87043556 (LIRC January 20, 1994), aff'd Case No. 95-02646 (Wis. Ct. App. September 26, 1996); Joseph Eells v. City of River Falls, WC Claim No. 92071843 (LIRC June 3, 1994), aff'd sub nom. Eells v. LIRC, Case No. 95-0367 (Wis. Ct. App. September 6, 1995); Stephen J. Highman v. Dunn County Sheriff's Department, WC claim nos. 1993024207, 1992040723, 1994060086 (LIRC June 3, 1999), aff'd sub nom. Highman v. LIRC, Case No. 00-0801 (Wis. Ct. App. November 14, 2000); Michael Barry v. County of Walworth Sheriff's Department, WC Claim no. 1994-045604 (LIRC August 8, 2001), aff'd sub nom. Walworth County v. Barry, Case No. 01CV704 (Wis. Cir. Ct. Walworth County April 2, 2002); and Cimaroli v. Dept. of Corrections, WC Claim No. 2000-018039 (LIRC August 3, 2006). Consistent with the case-by-case objective approach mandated by Bretl, where the court disavowed a bright line rule against claims brought by law enforcement officers, the commission has denied compensation in some of these cases (Balistreri, Eells, and Highman), and paid compensation in others (Barry and Cimaroli).
After carefully considering the facts of this case, the commission concludes the ALJ properly found the School District No. 1 standard has been met and it affirms his decision finding a compensable injury. The commission's prior cases involving law enforcement officers, while instructive, do not support a denial of compensation in this case. In Balistreri, the commission concluded that watching a friend die in a burning car did amount to extraordinary stress, but also that the incident did not actually cause any disability. In Bretl, while the officer involved was a member of a SWAT team, and while he shot and wounded the suspect, he did not kill him. In Joseph Eells--the case most factually similar to this one--while the police officer saw a young man commit suicide by shooting himself in the head, and in fact felt some blame for the incident, the officer was not as directly responsible as the applicant here who actually had Rosario in his custody.(1) Again, the applicant returned to Mr. Rosario his wallet containing the surgical knife with which he killed himself, which both the applicant and his expert acknowledge was a mistake. Further, while the commission described the scene in Eells as grisly, and while the officer checked for a pulse, he did not attempt to render aid and become drenched in blood, as did the applicant here.
The applicant did not have a close personal relationship with Mr. Rosario, as did the officer in the Barry case where the commission allowed compensation. Indeed, in an early mental-mental case--not involving a police officer--the commission found compensable a claim by a worker who witnessed his friend die in an industrial accident. International Harvester v. LIRC, 116 Wis. 2d. 298, 301 (Ct. App. 1983). However, the court of appeals in International Harvester found it significant, as did the commission, that the worker involved had helped the coworker obtain the job in which the coworker was killed, causing the worker to feel responsible for his friend's death. Id., 116 Wis. 2d at 301. The applicant here testified that he felt responsible for the death of Mr. Rosario, and that responsibility is an important factor in the School District No. 1 analysis, as Mr. Uelman stated.
In short, the circumstances of this case makes the case one that resulted in a situation of greater dimension than the day-to-day emotional strain and tension that similarly-situated sheriff deputies must experience. The commission, concludes, too, that it was an event "unexpected and unforeseen" and "so out of the ordinary from the countless emotional strains and differences" that deputy sheriffs encounter daily without serious mental injury. The commission concludes that the ALJ properly found a compensable injury in this case.
cc:
Attorney Scott Butler
Attorney Paul Riegel
Laurie R. McCallum, Commissioner (Dissenting)
I respectfully dissent from the majority decision.
The standard to be applied in this case is whether the event which triggered the claimant's psychological injury was of "greater dimensions than the day-to-day emotional strain and tension which all employees must experience," and was a "fortuitous event unexpected and unforeseen." School District No. 1 of Brown Deer v. DILHR, 62 Wis. 2d 370 (1974).
The claimant failed to notice a blade which Marc Rosario (Rosario) then used to take his own life. I disagree with the majority that this incident is so out of the ordinary for a law enforcement officer as to justify an award of benefits.
It is not unusual for law enforcement officers to have contact with suicidal individuals, to witness suicides, or even to play a role in suicides. In fact, the term "death by cop" has entered our vernacular to label those increasingly common incidents in which a suicidal individual deliberately acts in a threatening way in order to provoke a lethal response from a law enforcement officer.
Law enforcement officers are often responsible for monitoring unstable or desperate individuals, and screening them for items they could use to hurt themselves or others, and are necessarily aware that these screening efforts, like the claimant's here, are not always successful.
The majority relies upon the fact that the claimant considered himself responsible for Rosario's death. However, unlike those circumstances where a police officer actually takes a life, here, Rosario was the instrument of his own death, not the claimant.
Certainly, some circumstances, whether due to a personal relationship between the officer and the individual who has been killed or injured(2) or the age of this individual(3), or to the unpredictably abhorrent nature of the incident(4), would satisfy the standard enunciated in School District No. 1, as that standard has been applied to the law enforcement community. None of these circumstances is present here.
The claimant in fact testified to his exposure to successful suicides during his two decades of law enforcement experience, including at least one where he was present but unable to prevent the death of a young man who was familiar to him. The claimant concedes that neither this incident, nor any of the other suicides, caused him any psychological injury. It seems incongruous that he now claims such injury in a circumstance where he was also unable to prevent a suicide but had no history with the individual.
In my opinion, the majority here has not adequately distinguished the facts here from those in Eells v. City of River Falls, WC Claim No. 92071843 (LIRC June 3, 1994), aff'd sub nom. Eells v. LIRC, Case No. 95-0367 (Ct. App. 1995). In that case, a law enforcement officer had contact with a young man over a period of hours and, when the officer shined his flashlight into the car in which the man he knew to be agitated and armed was sitting, the young man took the gun he was holding and killed himself. Although the claimant failed to detect the instrument by which a determined Rosario took his life, the action of the officer in Eels appears to have directly triggered the fatal gunshot. Certainly a shotgun blast in a mouth would have created a scene as least as grisly as a razor blade to a blood vessel. And yet, the commission concluded in that case that the incident did not rise to the level of unusual stress for a law enforcement officer. In my opinion, the facts in Eells are even more compelling than those here, and the majority decision inconsistent with the result in that case.
The claimant contends that the evidence of record, including the testimony of Sheriff Schmidt, does not establish that the Rosario incident fell within the scope of what a Washington County deputy sheriff could reasonably expect to experience in carrying out his duties. However, in my opinion, this contention is disingenuous. Although Sheriff Schmidt testified that he had not seen an incident exactly like the one at issue, he testified, consistent with the testimony offered by the claimant, that, in his experience, deputies had witnessed suicides, had individuals in their custody who had committed suicide, and had administered lifesaving aid to suicide victims.
I also find the reliance upon the testimony of retired Chief Uelman misplaced. As characterized by the majority, his testimony was that, while police officers may be expected to respond to a particularly gory accident or crime scene, it was not "a day-to-day experience." Of course, particularly gory scenes are not routine, everyday events for law enforcement officers. That is not equivalent to stating that they are unforeseen and extraordinarily unusual, the standard to be applied here.
The record fails to establish that the claimant's experience with Rosario was unforeseen and extraordinarily unusual for a law enforcement officer. Officers are responsible at times for monitoring suicidal individuals, and are necessarily aware that, despite their best efforts, certain of these individuals, intent on taking their own lives, will be successful. Officers are also responsible for rendering aid to injured individuals, and are necessarily aware, given the range of possible injuries to the human body, that the scenes of injury could be horrific. These are the elements present here, and there is nothing which, in my opinion, would take these circumstances outside the range of the reasonably foreseen for an experienced law enforcement officer such as the claimant.
Appealed to circuit court. Affirmed July 11, .2012. Appealed to Court of Appeals. Affirmed January 9, 2013.
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