MONICA VAN DYKE, Applicant

TANDEM TRANSPORT INC, Employer

ACUITY INSURANCE CO, Insurer

In March 2009, the applicant filed an application for hearing seeking compensation for a mental injury after having been repeatedly harassed by her employer for refusing illegal assignments. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on September 14, 2010, and February 1, 2011. Before the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $800.

The primary issue now before the commission, as it was before the ALJ, is whether the applicant sustained an injury arising out of her employment with the employer, while performing services growing out of and incidental to her employment. If such an injury is established, ancillary issues include the nature and extent of disability and the respondent's liability for medical expenses.

On May 16, 2011, the ALJ issued his decision finding the applicant permanently and totally disabled due to a non-traumatic mental injury caused by her employment. The respondent filed a timely petition for commission review.

The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and consulted with the ALJ concerning witness credibility. Based on its review, the commission makes the following:

The applicant was born in 1960. She drove a school bus for ten years before becoming an over-the-road truck driver in 1998. In 2001 she began working for JDC Logistics, a sister company to the employer, Tandem Transport. Both companies were owned by Jeffrey Lorino. Tandem Transport drivers are union members, while JDC Logistics drivers are not.

For much of her employment with JDC Logistics, the applicant drove "primary runs" from a city in Canada to a city in the United States. The schedule was regular, allowing her to leave on the same day of the week and return home on the same day of the week. Sometimes, however, the applicant would do relay runs or runs within Canada. While the applicant is a United States citizen, she was able to do these intra-Canada runs because she was "landed," a status similar to having a "green card" in the United States. Drivers who are American citizens normally cannot do internal runs in Canada--this is considered illegal "cabotage"--though they can do runs from a city in the United States to a Canadian city and vice versa.

In late 2004, the applicant married another United States citizen. In July 2005, she moved to Michigan to live with her new husband. When the applicant moved to Michigan, she lost her status as being "landed" in Canada. Around this time, she and her husband, who was also a driver for JDC Logistics, arranged to transfer to the employer, Tandem Transport, because it was union work. The owner, Jeffrey Lorino, agreed to the transfer because both were reliable drivers.

The applicant testified that after she surrendered her landed status and moved to the United States, Lorino still wanted her to do intra-Canada runs illegally. When she refused, she testified, he began making harassing phone calls to her, using abusive and profane language. She testified he fired her several times but would re-hire her after the union intervened. She testified that she and her husband were denied the regular "primary" runs that they had previously been getting, and given "on the board" or irregular runs--which kept the couple from spending time together--as a punishment for getting married and for the applicant moving to Michigan.

The applicant contends that Lorino was upset that the applicant had married without his permission, and that he wanted the applicant to retain her landed status so she could continue to move loads within Canada. This would shorten the distances that would be traveled by American drivers who were paid in then more valuable U.S. dollars while at the same allowing Lorino to shift other primary routes to Canadian drivers who were paid in then cheaper Canadian dollars. By moving to Michigan, the applicant foiled this scheme, leading to Lorino's abusive conduct which caused her nervous breakdown.

The applicant's union steward, Earl Schneider, testified about his own dealings with Lorino. Schneider himself had been taken off a dedicated or "primary" route but fought with Lorino about it. He also testified that he had had a number of confrontations with Lorino involving the applicant, other workers and himself. He described Lorino as a hot-tempered man who, on one occasion, "came across the table" at Schneider during a union negotiation. Schneider intervened with Lorino on the applicant's behalf six to eight times during her confrontations with Lorino, which Schneider said was more often than he intervened for other employees. February 1, 2011 transcript, pages 90 and 91.

Jeffrey Lorino testified at the hearing as well. He testified that he was appalled by the testimony of the applicant and Schneider. He testified that during his dealings with the union, it was the union representatives who were profane and threatening. He denied that he had repeatedly fired the applicant and denied as well that he made abusive or threatening phone calls. He did acknowledge calling the applicant at home on a couple of occasions, but testified that this was done to attempt to deal with problems that she herself had raised.

The medical records first mention "nightmares and trouble sleeping" in December 2005 when the applicant sought sleeping pills from her primary doctor, Arshad Aqil, M.D. (exhibit 1). Dr. Aqil reported that the applicant was very upset with her work with long hours and not much relief and also stressed about her sister's death (occurring the prior month.) After a couple of visits--during which she mentioned difficulty with sleeping, a lot of stress at work, and severe anger and anxiety toward management, he referred her to a psychiatrist.

Accordingly, the applicant began seeing a psychiatrist, Jain Syed, M.D., on March 7, 2006. He noted she had not previously seen a psychiatrist, and documented work stress--her refusal to do illegal runs, the employer's complaints about the miles driven, and being given bad U.S. routes--and stated a diagnosis of adjustment disorder. During subsequent visits to Dr. Syed, she continued to complain of problems at work, including not being given good runs. She was seen in August 2006 for chest pains from a panic disorder. Dr. Syed noted continued problems with panic attacks and, in January 2007, advised her to stop driving and seek social security disability.

At one point, the employer, Tandem Transport, and its sister company, JDC Logistics, employed nearly 1,700 drivers. The companies moved freight mainly in the automotive industry, which, during the period at issue (2005 to 2007), was in a significant downturn. Indeed, Lorino's companies ultimately went bankrupt. Lorino testified that he was attempting to keep his company afloat in a tough economy and in a particularly troubled industry while at the same time making necessary software upgrades and dealing with customers.

The applicant's medical expert, treating psychiatrist Syed, states in a practitioner's report that the applicant attributed her disability to the fact "her employer forced her to make illegal movement trucking freight into Canada" and that "when she refused she was terminated." He opined this caused her disability, and he diagnosed major depressive disorder and panic disorder with agoraphobia. He rated permanent partial disability to the body as a whole at 6 percent, but also stated she could not work.

The respondent's expert psychiatrist, Joseph Burgarino, M.D., does not attribute any part of her psychological disability to the exposure at work, but rather to the recent death of her sister. In his initial report, he thought she had reached a plateau of healing without permanent partial disability as of May 1, 2006. In a subsequent report dated September 6, 2007, he opined that she was permanently totally disabled. He added that while the work stress might have played some role in her mental condition "it was not a material contributory causative factor, nor did the stress itself rise to the level of being extraordinary."

This case 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.

Thus, the supreme 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 supreme court later 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).

In School District No. 1, a high school guidance counselor claimed a mental injury from the receipt of critical remarks from students. The court concluded those facts 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). In that case, the worker, Schillinger, worked for a growing company where her responsibilities increased dramatically over the years. She had a demanding job, and worked long hours without respite, and had no vacation in the year of her breakdown. Schillinger also had a difficult supervisor, described as very aggressive, brusque, and emotionally cold, and who would belittle any decision Schillinger made. The commission found a compensable injury from mental stress in that case. In a subsequent case, 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).

On the other hand, Probst v. LIRC, 153 Wis. 2d 185 (Ct. App. 1989) involved an owner of a company that began to experience financial problems. The commission denied her claim for compensation because her stress was not unusual for business owners. In Probst, the court of appeals approved the commission's "similarly-situated test," under which the commission looks at the everyday stress experienced by workers doing the same job. Id., at 153 Wis. 2d 191. See also Bretl v. LIRC, 204 Wis. 2d 93, 106 (Ct. App. 1996).

In determining whether the School District No. 1 standard has been met, again, the commission looks at the everyday stress experienced by workers doing the same job. As the testimony in this case indicates, jobs in the trucking industry are demanding and stressful generally.

The applicant and union steward Schneider admit that rough language is common between drivers, between drivers and dispatchers, and between the drivers and Lorino. This is substantiated by Exhibit 3, which documents exchanges between the applicant and her dispatcher in 2004, before she married and moved to Michigan. Further, the applicant's employment overlapped a particularly stressful time in the segment of the trucking industry--transporting materials for the automobile industry--that the applicant worked in. Schneider's own testimony indicates that he experienced job stress as the applicant claims she did--unfavorable routes and confrontations with Lorino about work.

The commission notes that during her first visit with Dr. Aqil, the applicant described stress from her long hours without much relief and her sister's recent death. While subsequent notes do mention her conflict with Lorino, the commission is persuaded that the conflict--as well as her assignment of routes--arose from the business interests of Tandem Transport and JDC Logistics. The trucking industry was experiencing the effects of poor economy and, as the applicant suggests, the employer had a financial motive to assign primary routes to Canadian drivers whom it could pay with Canadian dollars.

The commission notes, as well, that Lorino approved the applicant's and her husband's transfer from JDC Logistics to the union employer, Tandem Transport, which both parties agree was more favorable employment. The switch to union employment occurred in July 2005, around the time the applicant moved to Michigan, and certainly after her marriage in late 2004. September 14, 2010 transcript, page 21. The transfer undercuts the contention that Lorino was angered at the applicant because of her remarriage--or even her move to Michigan.

While a personal bad motive, of course, is not required to establish unusual stress under the School District No. 1 standard, the absence of such a motive in this case supports the conclusion that the applicant was experiencing only the day-to-day stress common to truckdrivers generally. In sum, while the applicant experienced job stress, and while it likely was greater than she had experienced earlier in her career, the commission cannot conclude it was "so out of the ordinary from the countless emotional strains and differences that employees encounter daily without serious mental injury" or "of greater dimensions than the day-to-day emotional strain and tension" which similarly situated workers experienced. Because the School District No. 1 standard has not been met, the applicant's claim for a non-traumatic mental injury must be denied and the application dismissed.

The findings and order of the administrative law judge are reversed. The application is dismissed.

Dated and mailed
June 6, 2012
vandykm . wrr : 101 : 5 ND6 3.42

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission conferred with the presiding ALJ concerning witness credibility and demeanor. He stated that the applicant and her husband struck him as modest, honest, and hardworking people. While the applicant became upset when describing her dealings with the employer in her testimony, he found her credible. The ALJ also described union representative Schneider as very credible, and his testimony as open, candid, responsive, and "not over the top." On the other hand, the ALJ described Lorino as incredible, very careful and restrained in his testimony, and not responsive to the questions put to him on cross-examination.

The ALJ specifically stated that he believed the applicant's testimony that Lorino called the applicant, rather than vice versa, as well as Schneider's testimony that Lorino was difficult to deal with. However, the commission does not believe, for the reasons stated above, that Lorino harassed the applicant or gave her less desirable routes to punish her for marrying without his permission or for adversely affecting the finances of his companies by moving to Michigan. Lorino allowed the couple to transfer to union employment after the marriage and around the time the applicant left Canada. The commission concludes his assignment of routes to the applicant and her husband--as with union representative Schneider and other drivers--was motivated by the business needs of his trucking companies.

The commission is persuaded that Lorino was a difficult man to work for, particularly in a stressful occupation like over-the-road trucking, and that the applicant may have had more conflict with him than most other drivers as Schneider testified. The commission also appreciates that even the respondent's medical examiner believed the applicant's work stress might have played some role in her mental condition. However, as stated above, the commission cannot conclude the legal standard set out in School District No. 1 has been met.

cc: Attorney Kellett Koch
Attorney David Kania

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