Wis.LIRC WC Decision: Highman - June 3, 1999 - ND �3.41 - Non-traumatic Mental Injury - police officer - stress - altercations with suspect, use of deadly force, investigation and DA decision to only charge suspect w. misdemeanor - not so out of ordinary from stresses and strains of similarly situated workers - no compensable injury; ND �8.28 - evidence

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

STEPHEN J HIGHMAN, Applicant

DUNN COUNTY SHERIFFS DEPT, Employer

DEPARTMENT OF EMPLOYE TRUST FUNDS, Respondent

WORKER'S COMPENSATION DECISION
Claim Nos. 1993024207, 1992040723, 1994060086

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 June 3, 1999
highmst.wsd : 132 : 1 ND � 3.41 � 8.28

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant has petitioned for commission review of the adverse findings and order of the administrative law judge. The applicant's claim is for a non-traumatically caused mental injury. While the doctors disagree on the diagnosis, and how much work was responsible for applicant's mental condition, the doctors essentially agree that applicant's work was, at least in part, responsible for his mental injury. However, in a case in which the mental injury is non-traumatically caused, the non-traumatic mental injury:

. . . must have resulted from a situation of greater dimensions than the day-to-day emotional strain and tension which all employees 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 serious mental injury will liability under ch. 102, STATS. be found.

School District No. 1 v. DILHR, 62 Wis. 2d 370, 377-78 (1974).

The applicant was engaged in two altercations with suspects. One required that he use deadly force. It has not been shown that the use of deadly force or altercations with suspects are events that are extraordinary or outside the day-to- day experiences of small town police officers. Further, that an investigation ensued from what the applicant himself described as a use of deadly force cannot be considered unusual. Indeed, the record indicates that the sheriff had to conduct an investigation once the deadly force allegation was made.

The applicant argues that the things that happened, and failed to happen, subsequent to the Berg incident only make sense when they are understood as being done by Sheriff Zebro and Dunn County in furtherance of the express intent to use the Berg incident as a means to get rid of the applicant. The applicant argues that the delay between time of the incident, January 27, 1991, the hearing of February 6, 1991, and the sheriff's contention that Undersheriff Palmer recommended dismissal when Undersheriff Palmer testified he recommended counseling, and the lapse of three months between the February 6, 1991 meeting, and formal action taken by Dunn County, showed a pattern of actions and inactions on the part of the sheriff and Dunn County to get rid of the applicant. The applicant also notes that during this period of time Sheriff Zebro tried to increase the pressure on the applicant to resign by referring the case for criminal prosecution. Applicant finds fault with the sheriff's failure to refer his case for prosecution back in January, as soon as, what the applicant considered to be, the complete investigation was done. Mr. Forjan also found significant fault with the investigation. However, pointing out deficiencies in the investigation does not establish a conspiracy. That an investigation does not go as smoothly as possible is not extraordinary.

Mr. Nowicki, the respondent's expert, testified that it is not uncommon for an officer who uses excessive force to be investigated and suspended. Likewise, criminal charges against an officer while not common, do happen, and are not extraordinary. It is not uncommon to be attacked/assaulted by a suspect nor is it uncommon for a D.A. not to follow an officer's charging recommendation. Further, Mr. Nowicki testified that unless the officer is seriously injured, it is rare for a suspect to be charged with battery to a peace officer. Rather, the typical charge is simple battery, which is a misdemeanor. Mr. Nowicki indicated that in his opinion there was nothing unusual or extraordinary about the investigation or the way it was handled. Finally, Mr. Nowicki testified that while yearlong investigations were not everyday occurrences, they were not unheard of. Further, the ALJ found that the length of the investigation was outside the norm.

An evidentiary issue arose relevant to the length of the investigation. Namely, Mr. Forjan had done a survey of a number of community police departments of similar size to Dunn County, inquiring how long after an investigation takes place it is before the officer is notified that the allegations have been sustained and/or disciplinary action is taken against the police officer. The findings were recorded in Exhibit O. The ALJ did not admit Exhibit O into the record on relevancy grounds. According to the applicant's petition, the ALJ did not admit the survey because it did not include neighboring sheriff's departments. The commission believes that Exhibit O was clearly relevant to the issue of what is a normal investigation. The comparison is with similarly situated employes, which can certainly encompass employes who work in departments and communities of like size as the applicant. See e.g., Bretl v. LIRC, 204 Wis. 2d 93 (Ct. App. 1996) The standard does not necessarily require proximity. The commission has considered Exhibit O when reviewing this case and finds that, while the ALJ should have admitted it into evidence, considering Exhibit O does not change the outcome in this case. Further, one of the points sought to be made by the introduction of Exhibit O was in fact accepted by the ALJ, namely, that the length of the investigation was unusually long. (1 )

Sheriff Zebro was concerned that applicant was becoming a liability. However, Sheriff Zebro was not relying on one witness's testimony in the Berg incident. Applicant had been reprimanded previously, before Zebro was the sheriff, for excessive use of force. In 1988, when applicant was on the drug unit, then Sheriff Risler reprimanded the applicant based on an incident in which it was alleged he used excessive force to effect a search warrant. Sheriff Zebro testified that a number of incidents made him question the applicant's methods such as the applicant throwing things around during a house search, putting a gun in a suspect's ear, and handcuffing a suspect behind the back after being told the suspect had an injured shoulder. Later, when Zebro was sheriff, applicant was pulled off the drug unit because of allegations of using excessive force during an arrest. After an October of 1990 arrest, all five of the other agents involved wrote letters stating they believed that the applicant's conduct was excessive and inappropriate. Given applicant's employment history, he has not demonstrated that it was unforeseen or unexpected that his use of deadly force would generate concerns in supervisory personnel that applicant was exposing the employer to liability.

The applicant's theory depends a great deal on Sheriff Zebro having and exercising authority over the special prosecutor or the Dunn County D.A.'s office. While the sheriff can refer charges to the D. A., it is ultimately the district attorney's decision whether or not to file charges. The applicant alleges, but offers no evidence, that the special prosecutor was acting on the prodding or insistence of the sheriff. (2) The assistant district attorney who handled the Hulback case, Ron Smeltzer (now Judge Smeltzer) testified that it is common for deputies who refer cases to the district attorney's office to make recommendations on what to charge. Judge Smeltzer testified that he factored into his decision to charge Mr. Hulback with a misdemeanor the fact that Mr. Hulback was close to 60 years old and that ultimately the case would be plead as a misdemeanor.

While the applicant made general allegations that he was not supported by his fellow officers, felt antagonism, and was afraid to do his job, the only incident occurring after applicant returned to work on March 14, 1992 was the second altercation in June of 1992. (3 ) Applicant offered hearsay testimony that some members of the department said they stayed away from him because they were afraid of what Sheriff Zebro do them and that Sheriff Zebro had threatened them. Similarly, the applicant testified that some members said they would not help the applicant, would not back him up, and would not cover him. However, Deputy Dicus testified that after applicant returned in March of 1992 Deputy Dicus did not interpret any animosity toward applicant and applicant appeared to be treated the same way as any other sheriff's deputy. Applicant did not submit any evidence that he was subject to belittling by his colleagues, that he was subject to cruel pranks or jokes by his colleagues, that his fellow officers failed to back him up, and he did not give any other specific instances of antagonism or lack of support after he returned to work in March of 1992. (4 ) There is no credible evidence that applicant was unfairly criticized or reprimanded or disciplined by Sheriff Zebro between his return in March and the incident in June, or June to October 1992 when he spoke with the D.A. This is not to say the applicant didn't believe there was antagonism, but it was not established.

Applicant's case rests on the allegation that the sheriff and Dunn County in general, apparently in cahoots with the district attorney, were trying to get rid of him through a systematic plan. The next step in this alleged plan was apparently to push the applicant over the edge by refusing to file felony charges against the suspect involved in the June of 1992 altercation. There are only allegations, and no actual evidence, that the district attorney chose to file misdemeanor charges against the suspect rather than felony charges because he was directed to do so by Sheriff Zebro. Absent a "conspiracy," all the applicant has established is that the district attorney used prosecutorial discretion in deciding what to charge a particular suspect. Applicant admitted that it was not unusual for the district attorney's office not to prosecute on the charges that the sheriff's deputy wanted.

The commission agrees with the ALJ that two altercations, an investigation occurring because of an admitted use of deadly force, and a prosecutor's decision to charge a suspect with a misdemeanor rather than a felony, does not constitute extraordinary stress and strain in the job of a small town police officer. However, the commission does not agree that the motives of the individuals involved, i.e. whether there was intentional foot dragging are determinative or irrelevant. The investigation may have lasted longer than is normal, but it can not be said that it was so out of the ordinary from the other stresses and strains similarly situated workers encounter on a daily basis without serious mental injury.

For the above reasons, the commission affirms the findings and order of the administrative law judge.

cc: ATTORNEY DONALD P OMEARA
BAXTER OMEARA & SAMUELSEN SC

ATTORNEY DOUGLAS M FELDMAN
LINDNER & MARSACK SC

ATTORNEY ROBERT F WEBER
DEPT OF EMPLOYE TRUST FUNDS

Appealed to Circuit Court. Affirmed February 14, 2000. Appealed to the Court of Appeals. Affirmed November 14, 2000.

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Footnotes:

(1)( Back ) While the ALJ could have admitted Exhibit N it appears that Mr. Forjan's expert opinion was thoroughly established through his live testimony. Failing to admit the summary of Mr. Forjan's opinion simply does not rise to the level of prejudicial error.

(3)( Back ) The applicant and Sheriff Zebro testified that other deputies had been jealous of the applicant when he was on the drug unit because he got a take-home car. Again, there were no specific incidents of the deputies acting on such jealousy.

(4)( Back ) Applicant did testify that prior to January of 1991, when Undersheriff Palmer was his supervisor, Palmer told him he dressed funny, looked sloppy off duty, and on two occasions spelled his name "H-Y-M-E-N" on time sheets. [Tr. 8/26/97, pp. 13-14] Undersheriff Palmer did not recall, but did not deny writing H-Y-M-E-N on applicant's time sheets. Undersheriff Palmer indicated such locker room humor was not uncommon. [Tr. 12/10/97, p. 208]