Wis.LIRC WC Decision: Cannizzaro - January 10, 1995 - ND � 5.18 � 5.20 - Schedule / Non-schedule injury; "physical-mental" condition

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

ANN CANNIZZARO, Applicant

COUNTY OF MILWAUKEE, Employer

COUNTY OF MILWAUKEE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93013757

An administrative law judge (ALJ) for the Workers' Compensation Division of the Department of Industry, Labor and Human Relations 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, except that it makes the following modifications:

1. After the final sentence in the first paragraph of the findings of fact, insert:

"The applicant's stress was not only increased by concerns about her future and her job security, but also by performing her duties of collecting accounts and dealing with patients as part of a department that was in the process of closing."

2. Delete the third sentence of the first full paragraph on the page 3 of the decision and substitute:

"Based on the increased asthmatic symptoms the applicant experienced when the stress of doing her job increased, the significant improvement in her asthmatic condition when she was transferred to a new department, and the many contacts the applicant had with Dr. Bertran for treatment of her asthmatic condition, Dr. Bertran's opinion is more credible."

ORDER

The decision of the administrative law judge, as modified, is affirmed.

Dated and mailed January 10, 1995
ND � 5.18 � 5.20

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The applicant alleges, and the ALJ found, that she was temporarily disabled by asthma caused by stress at work. The self-insured employer argues that the ALJ erred in not applying the "unusual stress" standard of School District No. 1 v. ILHR Dept., 62 Wis. 2d 370 (1974).

Before reaching the arguments made by the employer in its brief, the commission wishes to explain its amendment of the ALJ's Findings of Fact. The applicant testified, credibly, that she experienced stress not only from her concerns about job security but also from trying to collect accounts and deal with patients as part of a department that was being closed down. The distinction is an important one. If the applicant's stress had been due solely to her concerns about job security, the commission would not have found that her injury occurred while the applicant was performing services growing out of and incidental to her employment or that the accident or disease causing injury arose out of the applicant's employment. Section 102.03 (1)(c), Stats.

As noted above, the employer's brief asserts that the applicant's job stress should have to meet the "unusual stress" standard of School District No. 1 to result in compensable disability. The employer points out that disability from a mental injury is often accompanied by physical symptoms. This is clearly true, and the line between the disabling mental factors (such as depression and schizophrenia) and accompanying physical complaints (weight loss, sleeplessness) is sometimes hard to draw. Nonetheless, the fact remains that School District No. 1 and its progeny are limited to cases where the claimant is seeking compensation for the disability from the mental condition, not for the accompanying physical symptoms. Stated another way, the School District No. 1 standard is limited to so-called "mental-mental" cases, not the "mental-physical" case at issue here.

A non-traumatic mental injury caused by work is not compensable unless:

"It resulted from a situation of greater dimensions than the day-to-day emotional strain and tension which all employes 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 mental injury will liability under Ch. 102, Stats., be found."

School District No. 1, at 62 Wis. 2d 377-78 (1974). In announcing this more stringent causation standard, the court noted its hesitancy in granting compensation for such mental injuries, especially those caused by non-traumatic events, because the court was (1) concerned about opening the floodgates to fraudulent claims and (2) reluctant to assign a specific work cause to conditions like depression or anxiety which could probably be triggered by any, or many, events.

The courts have adhered to its School District No. 1 formulation in a number of succeeding cases: Swiss Colony, Inc. v. ILHR Department, 72 Wis. 2d 46, 51 (1976); Probst v. LIRC, 153 Wis. 2d 185, 190-91 (Ct. App., 1989); Random Lake v. LIRC, 141 Wis. 2d 559, 562 (Ct. App., 1987); and Jensen v. Employers Mutual Casualty Company, 161 Wis. 2d 253, 268 (1991). The supreme court has described the test 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, at 161 Wis. 2d 268. 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 commentators who have written on the subject distinguish between so-called mental-mental cases (where a mental or emotional stimulus causes primarily a "nervous" injury without physical manifestations) and mental-physical cases (where a mental impact or stimulus results in a distinct physical injury.) The commentators also describe School District No. 1 as dealing with the mental-mental category. Larson, 1B Workmen's Compensation Law, sec 42.23 (b) (1993) and Note, Eligibility for Worker's Compensation in Cases of Nontraumatic Mental Injury: The Development of the Unusual Stress Test in Wisconsin, 1987 Wis. L. Rev. 363.

This case is not the classic "mental-mental" case, where psychological factors (such as stress or mental cruelty) cause a mental injury resulting in disability (such as depression). Rather, this is a "mental-physical" case, since the psychological factor (stress) allegedly resulted in a physical injury causing disability (bronchial asthma). The employer, however, contends the School District No. 1 rule should apply since nearly every reported "mental- mental" also involved some physical symptoms. The employer argues that when the court used the term "nontraumatic mental injury" in School District No. 1, it meant any claims of stress-induced disability, including those arising from physical conditions such as asthma.

However, in School District No. 1 and all of its progeny, the claim for disability was based on a psychological condition itself, not some physical manifestation or symptom of it. The court itself distinguished between mental and physical injuries, with the former being covered by the School District No. 1 case. See: Swiss Colony at 72 Wis. 2d 55. This tracks the language of the worker's compensation statutes which defines "injury" as including mental and physical harm. Section 102.01 (2)(c), Stats. Further, the restatements of the School District No. 1 test in both Jensen and International Harvester both emphasize disability by mental or psychological injury. In this case of course, the harm and disabling condition, the asthma, were physical.

Finally, the courts and the commission have awarded compensation in a number of mental-physical cases (where stress caused disability associated with a physical condition) without mentioning the School District No. 1 standard. In Manitowoc County v. ILHR Department, 88 Wis. 2d 430, 437 (1979), the court found liability for a police officer's heart attack caused by the stress of a high speed chase, without any showing or finding that high speed chases were unusual for police officers. The commission likewise held that the School District No. 1 standard did not apply in a recent case involving mental-physical disability. James Lust v. UPS Oshkosh, claim no. 91024033 (November 22, 1994).

In short, the administrative law judge did not err by failing to apply the School District No. 1 standard.

Pamela I. Anderson, Commissioner (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I found Dr. Hong's explanation of the situation much more credible than Dr. Bertran's opinion. I do not believe that the job stress was the trigger for her asthma attack because the applicant had had six previous instances of hospitalization in the fall or winter months. The applicant was a smoker and had bronchitis prior to her admission to the hospital.

The applicant also knew that she would be placed elsewhere when the collections department shut down. Dr. Bertran's narrative does not talk about job stress as a direct cause of the asthma attack but only as an aggravation of her condition.

For these reasons, I would reverse and find that there was no work causation of the applicant's asthma attack. I would dismiss the claim.

Pamela I. Anderson, Chairman

cc:
ATTORNEY MARK GRADY
PRINCIPAL ASSISTANT CORP COUNSEL

Appealed to Circuit Court. Affirmed January 12, 1996.

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