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

MARK D LAMBERT, Applicant

FRITO LAY MADISON, Employer

LUMBERMENS MUTUAL CASUALTY COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93066895

The administrative law judge issued his findings of fact and interlocutory order in this case on December 19, 1994, following a hearing on November 15, 1994. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts and that, at the time of the alleged injury, the applicant's average weekly wage would result in the maximum compensation rates under sec. 102.11, Stats. No compensation has been paid.

The issues are whether at the time of the alleged injury the applicant was performing services growing out of and incidental to employment and whether injury arose out of the applicant's employment. If a compensable injury is established, the issues would also include the nature and extent of disability. Liability for medical expenses would also be at issue.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside his findings of fact and interlocutory order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born on February 25, 1959. He began working for the employer in 1989. He started as a relief driver, and shortly after starting got his own route. He averaged 50 to 60 hours per week in these jobs.

In 1991 he was promoted to district sales manager. His duties included managing 13 people, and his hours increased to 60 to 70 per week. Shortly after his promotion, the employer changed its pay structure and reduced the pay of the route drivers the applicant supervised. The applicant also found it hard to deal with his subordinates who were upset at having to take a pay cut. He wanted his salespeople to like him and his management style.

The applicant testified that the long hours the applicant worked added to his stress because he could not see his family. However, one to three hours of the applicant's work day was spent commuting from his home to his district. The applicant testified he did not move closer because he hoped to return to the Green Bay district, and because of his wife's job.

The applicant testified that his supervisor was rude, demanding and "managed by fear." The two would converse every other week for several hours by telephone. The applicant described these conversations as unpleasant, and stated that the supervisor seemed worried about his own job. He never specifically threatened the applicant with termination, however. Further, there is no evidence in the record that the applicant was singled-out for unusually harsh criticism compared to other district managers.

On one occasion, the supervisor contacted the applicant, asked why he had "dropped the ball" regarding sales expectations and told the applicant to clear his calendar for a day-long market tour the next day. The applicant did so. The next day, June 15, 1993, he reported to work "feeling like a wreck" in anticipation of the tour. Upon reporting in, the applicant learned the meeting had been canceled. This was a triggering event, causing the applicant to break down and cry in the office. He testified that he was fearful of his losing his job from this incident, but later admitted he did not think the supervisor would terminate him.

The applicant saw his doctor, Bruce A. Bachhuber, M.D., that evening. Dr. Bachhuber put the applicant on a medical leave of absence for until early August. Dr. Bachhuber also imposed a 40 hour per week restriction as a condition of returning the applicant to work. The employer refused to allow the applicant to return to work when the leave ended.

The record contains a letter from Dr. Bachhuber to the employer dated May 2, 1994. The letter states that the applicant suffered stress-related symptoms for which the doctor began treating him on June 15, 1993. He diagnosed hypertension, gastritis and migraines, all of which were caused by work. Dr. Bachhuber also referred the applicant to a psychologist who agreed the applicant's symptoms were work related stress, and that the applicant needed a leave of absence.

After treatment including the leave of absence, the applicant's blood pressure was under control and his migraines and gastritis symptoms went away. On March 7, 1994, Dr. Bachhuber increased the applicant's hours to 45 per week with travel time, but not more than ten hours per day. Dr. Bachhuber indicated that if the applicant surpassed those hours his symptoms would likely recur. His opinion also indicates the applicant reached a healing plateau as of March 7, 1994.

The respondent submitted a report from its psychologist, Thomas Groh, Ph.D., who found the applicant functioning well and without significant stress-related problems at the time of his report in September 1994. Dr. Groh did acknowledge a "well documented ... variety of stress related complaints and depression in the spring of 1993 when he left his employment with Frito Lay." Dr. Groh noted that the stress experienced by the applicant was the same as for any similarly-situated district sales manager, and suggested that the applicant was not suited by temperament or personality to such work. He concluded that the applicant had reached an end of healing without permanent disability.

A nontraumatic mental injury is not compensable under the workers compensation statutes, even if caused by work, 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 v. DILHR, 62 Wis. 2d 370, 377-78 (1974).

In announcing this stringent causation standard for cases of nontraumatic mental injury, the court noted its hesitancy in granting compensation for such mental injuries, especially those caused by nontraumatic 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 the 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 commission applies School District No. 1 to require stress, strain, and tensions greater than the day-to-day stresses that all similarly-situated employes must experience. The similarly situated test was approved by the court of appeals in Probst, 153 Wis. 2d 185-86.

In this case, the applicant testified that he was fearful of losing his job following the June 14 conversation with his supervisor. However, he also testified that he did not think the supervisor would fire him. He admitted that he was never specifically threatened with the loss of his job, and that he received periodic pay raises. The commission cannot find on this record that he was criticized and berated by the supervisor for a significant period of time, such that his supervisor's conduct was "so out of the ordinary from the countless emotional strains" that workers encounter daily as contemplated under at School District No. 1, supra, at 62 Wis. 2d 378.

While the applicant worked 70 hour weeks toward the end of his tenure, much of that was driving or commuting time. The commission also acknowledges that the applicant experienced significant job-related stress from supervising others, and from dealing with the day-to-day demands of his own supervisor. However, none of these stressors were extraordinary or unusual for someone in the applicant's position. Sales jobs are necessarily driven by quotas and the pressure to increase numbers. These pressures are magnified when one is a supervisor of 12 or 13 sales representatives. The commission concludes that the applicant has not met the School District No. 1 standard in this case.

ORDER

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

Dated and mailed July 31, 1995
ND § 3.41

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge found the applicant to be a very credible witness, and that he believed entirely what the applicant said. The commission does not disagree with this credibility assessment.

Instead, the commission reverses because, accepting the applicant's largely uncontested testimony as true, the facts in this case do not show stress that reaches the emotion strains and tension from the applicant's job does not meet the threshold set out in School District No. 1.

cc: ATTORNEY WILLIAM B KULKOSKI
OLSON KULKOSKI GALLOWAY & VESELY SC

ATTORNEY JAMES C RATZEL
OTJEN VAN ERT STANGLE LIEB & WEIR SC

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