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

DAWN MARIE LAVIA, Applicant

CITY OF WAUSAU POLICE DEPARTMENT, Employer

WAUSAU UNDERWRITERS INSURANCE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93072669

An administrative law judge (ALJ) for the Worker's 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.

ORDER

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

Dated and mailed August 31, 1995
ND § 3.41

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

MEMORANDUM OPINION

Upon review, the commission agrees with the ALJ that the applicant has not met the standard for proving a compensable nontraumatic mental injury under School District No. 1 v. DILHR, 62 Wis. 2d 370 (1974). In School District No. 1, an examiner and the predecessor of this commission allowed benefits for nontraumatic mental injury to a high school guidance counselor caused by inclusion on a list, prepared by students, of staff members whom the students thought should be fired. The supreme court reversed the award, however, holding that a nontraumatic mental injury is not compensable under the worker's compensation statutes, even if caused by work, unless:

" [I]t 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, outlined by the ALJ in his decision: 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. This "similarly-situated test" was approved by the court of appeals in Probst, 153 Wis. 2d 185-86. In this case, as the employer and ALJ point out, the applicant was not singled out for disparate treatment, the employer's three other dispatchers had to deal with the same conditions she did, and work stress caused by change must be expected by all workers. Applying the School District No. 1 standard to this case, the commission concludes that the ALJ properly held the applicant's injury was not compensable.

cc: ATTORNEY MARK W PARMAN
STILP COTTON AND WELLS

ATTORNEY STEVE M JACKSON
CARROLL PARRONI POSTELWAITE GRAHAM SIEDOW & JACKSON SC

Appealed to Circuit Court. Affirmed May 6, 1996.

[ Search WC Decisions ] -  [ WC Legal Resources ] - [ LIRC Home Page ]