STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

KATHLEEN HILMOE, Applicant

AURORA HEALTH CARE INC, Employer

EMPLOYERS INS OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997011995

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.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed: July 29, 1998
hilmoka.wsd : 175 : 7 ND § 3.41

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant asserts in her petition for commission review that the administrative law judge erred in determining that the applicant was not subjected to unusual stress in the workplace resulting in a non-traumatic mental injury. The applicant states that the administrative law judge's order was not based on pertinent information supplied by the applicant and the medical records provided by her treating physicians. The applicant states that there was no counter proof from the employer's physician nor did the employer offer testimony at the hearing to rebut the applicant's testimony of the direct threats on her life and others that she received from a co-employe. The applicant admitted in her testimony that the co-employe made dirty looks at her and that the co-employe made it clear to her and others in the department that she did not like the applicant and was unhappy with being seated near the applicant. However, the evidence did not establish that the applicant was threatened by the co-employe, and the applicant did not inform the employer that she had been threatened.

Further, the administrative law judge appropriately noted that the applicant's objections to being seated next to a certain co-employe were addressed by the supervisors in a timely manner. The applicant was allowed to sit in another cubical and the change was made in a manner to disguise the applicant's move from the co- employe, so that retaliation by the co-employe was unlikely.

The evidence indicated that the employer responded promptly to the applicant's concerns about being seated near the co- employe. Also, the applicant was upset when her supervisor did not give her permission to work overtime on Saturdays as she had in the past but such decision was certainly within the supervisor's discretion. The commission agrees with the administrative law judge that the situation and conditions described by the applicant were part of the ordinary office friction and not extraordinary stress required in worker's compensation to support a finding of a non-traumatic mental injury. The evidence indicates that the applicant became upset with the actions of the co-employe as well as the employer's response, but it does not establish that her response was due to unusual stress in the workplace. Therefore the applicant's claim for a non-traumatic mental work injury was appropriately dismissed.

cc: ATTORNEY MICHAEL T SHEEDY 
CASTELLANI SHEEDY & ASSOCIATES

ATTORNEY JOSEPH G GIBART
STILP & COTTON

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