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

LOUIS SALIMES, Applicant

TOWN OF CALEDONIA, Employer

EMPLOYERS INSURANCE OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92051641

The administrative law judge issued his findings of fact and interlocutory order in this case on October 1, 1993, following hearings on November 11, 1992, and March 24 and August 2, 1993. 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 an average weekly wage of $573.42. The issue in this case is whether the applicant has proven a compensable non- traumatic mental injury and, if so, the nature and extent of disability therefrom and liability for medical treatment expenses. 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, who was born on March 6, 1956, began working for the employer's police department in 1985. He alleges that work-related stress caused a psychological injury on March 26, 1992.

According to the applicant, his problems began in 1989, when the current incumbent, Jeffrey Meier, became chief of police. Indeed, Chief Meier believed the problems started even earlier when, as assistant chief, he criticized the applicant about the way he wrote a ticket. The stress on the relationship increased because Chief Meier believed the applicant gave inadequate notice about time off the applicant needed for reserve duty, causing the chief scheduling problems. The notice problem began in 1988 and continued throughout the employment relationship. On one occasion, the applicant was told he would have to pay for a day he took off for Army Reserve training because the applicant's shift was not covered, but that demand was later retracted. The applicant explained that he gave the chief notice of the reserve activities as soon as he learned of them. The chief required the applicant to provide signed, written orders to verify his requests for time off.

Problems also developed in 1989 over a class the applicant took for training as an evidence technician. The applicant complained that the class was valueless, that he learned nothing, and refused to do evidence technician duties until prodded. In response, the chief refused to count the applicant's attendance in the class when determining pay raises, which were in part based on such course attendance. Because the evidence technician coursework was not counted, the applicant fell short of the required number of credits for a raise. He grieved the issue, it went to arbitration, and the arbitrator decided in the applicant's favor in 1990. The arbitrator found that the applicant was "arbitrarily singled out" for disparate treatment. See Exhibit G.

The applicant also received a five-day suspension in 1991, arising from an incident occurring on December 30, 1990. The applicant was the shift commander for a night shift and a young woman who served as dispatcher engaged in horseplay by crawling around on the floor and tying officers shoes together. The applicant testified he reprimanded the dispatcher, but did not report the incident to higher-ups. When the chief learned of the incident, he investigated. When questioned, the applicant denied that the horseplay occurred, because he did not want to get the dispatcher in trouble. The chief later learned the applicant's denial was false, and suspended him for lying during an investigation. Exhibit 9. The applicant grieved the suspension and it was reduced to a three-day suspension by agreement before it reached arbitration.

The applicant also received a written warning in 1991 for sitting at a clerk's desk. The chief had previously issued a written directive instructing officers not to sit at the clerk's desk because she complained they disturbed her papers. The applicant was the first officer given a written warning for violating this directive.

The applicant also testified that the chief unfairly refused to pay him over-time for work he did in association with the SWAT team. The chief claimed the applicant did the work voluntarily. The applicant then quit the SWAT team. He eventually blamed the chief for his dissociation from the SWAT team. The applicant also testified he was reprimanded for writing to a sidearms manufacturer on the employer's stationary, even though his inquiry was work-related.

The file also contains considerable testimony about the applicant's refusal to testify at a drunk driving trial where he was arresting officer. At the time, the applicant was on sick leave for his psychological condition. Hearsay evidence in the record indicates that assistant district attorney prosecuting the case was upset, particularly after the chief told her that the applicant had recently done paratrooper training with the reserves. This led to an angry exchange of letters. The applicant's psychologist eventually wrote a note stating that the applicant should not have had to testify at the hearing. This incident occurred after the applicant stopped working on March 26, 1992.

The medical experts agree that the applicant has a psychological disorder. The respondent's independent medical examiner describes the condition as "adjustment disorder with mixed emotional features, and more importantly, a personality disorder not otherwise specified (with significant obsessive compulsive features.)" The applicant's psychologist describes the condition as "adjustment reaction with mixed emotional features." His psychiatrist describes his condition as anxiety and depression.

The experts also agree that the applicant was temporarily disabled by the condition. More specifically, his psychologist and psychiatrist opined he was disabled beginning on March 25, 1992, and his psychologist later released him for work on January 9, 1993. The respondent's expert did not dispute the applicant's inability to work while on leave, and opined that he could return within one month from the date of his report, January 6, 1993.

The record also supports the conclusion that the applicant's condition was caused by work. The applicant's psychologist and psychiatrist each marked both the direct causation and the occupational disease causation box on their practitioner's report. The independent medical examiner gives a somewhat more guarded opinion, stating that the applicant was experiencing moderate to severe stress from being off work, litigating his worker's compensation claim and the reported stress at work. The IME goes on to state that the applicant's adjustment disorder:

"implies a maladaptive reaction to an identifiable psychological stressor or stressors. I realize that there is a dispute as to fact as to the nature of the work stressors, but in any event, [the applicant] was apparently finding work stressful, and may have experienced other stresses, as well. The nature of his reaction was mixed with an increase in anxiety, depression, and compulsivity."

Exhibit 1, Feinsilver report dated January 6, 1993, page 10. However, the independent medical examiner later stated that he would offer no opinion as to causality.

In sum, the applicant's experts opined that work caused the applicant's condition and the independent medical examiner gives, at best, a noncommittal opinion. The commission thus concludes that there was at least some causal relationship between work and the applicant's disability.

That does not mean the applicant's disability is automatically compensable, however. A nontraumatic mental injury, even if 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 v. ILHR Dept., 62 Wis. 2d 370, 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 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) and Jensen v. Employers Mutual Casualty Company, 161 Wis. 2d 253, 268 (1991). The supreme court has described the test as objective, summarizing it as: "[w]ould a person of ordinary sensibility be emotionally injured or mentally distressed in the absence of unusual circumstances?" Jensen, at 161 Wis. 2d 268. The commission has consistently required stress, strain or tension greater than the day-to-day stresses, strains and tensions that all employes in the same occupation and field must experience. This "similarly- situated employe" test was approved by the court of appeals in Probst, 153 Wis. 2d 185-86.

Extreme criticism by a superior has been recognized as a basis for compensation. The supreme court has stated 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 not be denied compensation. School District No. 1, at 62 Wis. 2d 378. Indeed, the commission and the supreme court allowed the payment of benefits for mental injury to an employe for that type of stress in Swiss Colony.

The issue, then, is whether the stress experienced by the applicant in his relationship with the chief was "so out of ordinary" from the countless emotional strains and differences that similarly-situated employes encounter daily without serious mental injury. The applicant's expert testified that the applicant's stress from dealing with the chief was unusual or above normal because of the accumulation of incidents over time, and its effect on the applicant's ability to make a living. However, the question of whether an applicant is subjected to unusual stress is not a medical question but a factual question to be decided by the commission. See: Probst, at 153 Wis. 2d 191-92.

The commission cannot conclude that the stress applicant suffered meets the School District No. 1 test. Employes are necessarily subject to discipline and supervision, and discipline and supervision are not always fair. It is not unusual that a supervisor may favor or disfavor one employe in comparison with others. Supervisors are human and capable of petty or unfair behavior, particularly where personality conflicts are involved. Of course, such behavior should not be condoned and, indeed, was subject to remedy by grievance in this case. However, that does not mean that the applicant's treatment by Chief Meier results in a compensable injury

In this case, four incidents stand out: the chronic problem with the applicant's Army reserve duty schedule, the suspension for mis-statements during the investigation of horseplay, the written warning for sitting at a clerk's desk, and the denial of the credits for the evidence technician training. Each of these could be viewed as involving some overreaction by the chief. Indeed, a dispatcher testified that the applicant was disciplined for things other officers seemed to get away with. However, the applicant had in fact violated rules in some cases, and it is not unreasonable to expect that a police department takes rule violations, particularly those involving honesty in an investigation, more seriously than other employers. Further, the record in this case discloses relatively few incidents over a period of about 3 years, some of which were subject to recourse under a grievance process.

In sum, the chief's treatment of the applicant, while no doubt at least a contributory cause of the applicant's nontraumatic mental injury, fails to meet the objective standard set out in School District No. 1. This is not to say that the chief treated the applicant fairly. The arbitrator found otherwise with respect to the computation of training credits incident, and the dispatcher's testimony indicates that the applicant was subject to disparate treatment. Everyone agrees the two did not get along. But the commission must conclude that the incidents of unpleasant and even unfair treatment in the workplace, manifesting itself in five or six major incidents over three years time, were not "so out of the ordinary from the countless emotional strains and differences" that all employes must experience. School District No. 1, at 62 Wis. 2d 377-78.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

MODIFIED INTERLOCUTORY ORDER

The decision of the administrative law judge is reversed. The application is dismissed.

Dated and mailed at Madison, WI, September 29, 1994.
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 credible witness, although nervous. The chief seemed calmer and could look the administrative law judge in the eye as he testified. The commission does not dispute the administrative law judge's credibility impression at all in this case. The differences in the versions of events given by the witnesses seem to be based on normal differences of perspective. Rather, the commission reverses because it disagrees with the administrative law judge on the legal issue of compensability under School District No. 1.

Appealed to Circuit Court. Affirmed June 8, 1995.

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