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

JACQULINE E STIEFEL, Applicant

UNITED CEREBRAL PALSY OF NORTH CENTRAL WISCONSIN, Employer

UNITED WISCONSIN, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996014016

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 November 30, 1999
stiefja.wsd : 175 : 1 ND § 3.41

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant asserts in her petition for commission review that the administrative law judge erred in determining that the applicant did not establish that her work for the employer subjected her to extraordinary stress and that she failed to meet her burden of establishing that she suffered a nontraumatic mental injury as a result of her work for the employer, and specifically as a result of harassment from her supervisor. In order to establish a claim for nontraumatic mental injury under the doctrine provided in School District No. 1 v. DILHR, 62 Wis. 2d 370, 377-78 and 215 N.W. 2d 373 and Probst v. LIRC, 153 Wis. 2d 185, 450 N.W. 2d 478 (1989), the applicant must establish that she was subject to work related stress in the form of harassment from her supervisor which was greater than these day-to-day emotional strain and stresses which similarly situated employes experience. The applicant testified that on several occasions she was berated and harassed by her supervisor Nancy Majik-Rowe which led to the onset of her post traumatic stress syndrome, anxiety attacks, and depression. However, a review of the evidence in the record, including the applicant's testimony as well as the testimony of Ms. Ludwig the employer's personnel coordinator, indicated that Ms. Majik-Rowe treated other employes in the same manner and that she did not single out the applicant for harassment or to berate her. Ms. Ludwig testified that she felt that she could not continue her investigation into the applicant's complaints against Magik-Rowe after meeting with Majik-Rowe and receiving treatment similar to that described by the applicant. Although Ms. Majik-Rowe's supervisory style may have been abrupt and authoritarian the evidence did not establish that the applicant was treated differently than other employes under Ms. Majik-Rowe's supervision.

Ms. Majik-Rowe testified that she did not specifically harass the applicant or treat her differently than other employes and that she did not threaten her with termination or make other intimidating statements attributed to her by the applicant. The commission credits Ms. Majik-Rowe's testimony.

The applicant contends that there is a second test even if the extraordinary stress test is not met which includes an alternative belittle-berate test for liability for a nontramatic mental injury. However, the commission finds that under the Supreme Court's holding in the School District No. 1 case, that in order to prevail in a claim for nontramatic mental injury that the applicant must establish that the work related stress was of greater dimension than the every day demands and stresses suffered by similarly situated employes, including situations involving alleged supervisory harassment. There is no separate belittle-berate test for specific instances of stress related to harassment from a supervisor.

Dr. Lean, a psychiatrist who performed an examination of the applicant on behalf of the employer, diagnosed the applicant with major depression in near full remission. Dr. Lean noted that it was his concern as well as the concern of Dr. Blackwell that the treatment the applicant received seemed to focus on victimization issues and empowerment of the applicant due to a prior history of incest and abuse, although the therapist claimed that the applicant's illness was probably work related. Dr. Lean noted that there was apparently some suicidal gesture approximately 25 years earlier in the applicant's life and there was also some indication of unstable relationships earlier in her life. Dr. Lean opined that the alleged incidents at work were not a substantial contributing factor to her illness. Dr. Lean opined that the applicant's illness was a result of gradually developing depression since at least January 1995, and possibly longstanding characterologic difficulties. Dr. Lean noted that the applicant had received paxil in January 1995 for depression prior to the alleged incidents in the fall of 1995 and February 1996 relating to Ms. Majik- Rowe.

Dr. Blackwell who performed a review on behalf of the employer indicated in his report dated August 1, 1996 stated that the applicant's history is not consistent with a diagnosis of depressive dysthymia which would require symptoms on a daily basis for two years and that the history and score on the beck depression scale indicated a major depression with possible accompanying panic disorder, and a diagnosis of post traumatic stress syndrome was questionable. Based on a review of the evidence in the record including the testimony of Ms. Majik-Rowe as well as Ms. Ludwig and given the credible reports of both Dr. Blackwell and Dr. Lean, and given the evidence of the applicant's prior emotional problems and her treatment for victimization and abuse and non-work related stress, as well as her treatment for depression in January of 1995, the evidence was sufficient to raise a legitimate doubt that the applicant was subjected to unusual stress in the workplace of greater dimensions than that experienced by similarly situated employes, and also whether the applicant's subsequent nontraumtic mental problems were related to her work for the employer or to some pre-existing cause. Therefore, the applicant's claim for benefits was appropriately dismissed.

cc: ATTORNEY PETER C GUNTHER
KELLEY WEBER PIETZ & SLATER SC

ATTORNEY JOSEPH DANAS JR
BORGELT POWELL PETERSON & FRAUEN SC

Appealed to Circuit Court. Affirmed August 23, 2000.

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