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

PATTI J COOK, Applicant

FORT HOWARD PAPER CO, Employer

UNITED STATES FIDELITY & GUARANTY COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997062954

The applicant filed an application seeking compensation for disability and medical expenses from a psychological injury caused by physical and mental harassment by co-workers. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and average weekly wage that exceeds the statutory maximums for disability compensation purposes. However, the respondent denied the occurrence of an injury from an accident or occupational exposure arising from the applicant's employment with the employer while the applicant was performing services growing out of and incidental to that employment. Although the respondent paid some medical expense, it did not pay any compensation for temporary or permanent disability.

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development held hearings in this matter on September 28, 1998, January 5, 1999, and March 9, 1999. The record was closed on March 19, 1999.

The issues before the ALJ (and now before the commission), were whether the applicant sustained an injury as a result of accident or disease arising out of employment, whether the applicant is entitled to temporary disability compensation for the periods of time listed in exhibit G, and whether the respondents were liable for the medical expenses and medical mileage documented in exhibit F.

On June 15, 1999, the ALJ issued an order finding a compensable injury; awarding payment of temporary disability, medical expense, and medical mileage; and retaining jurisdiction to permit adjustment of the disability award under Wis. Stat. § 102.30. The respondent filed a timely petition for review.

The commission has considered the petition and the positions of the parties, consulted with the ALJ concerning witness credibility and demeanor, and reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Work incident and medical treatment.

The applicant was born in 1958. She has a high school diploma, and was a home-maker until 1991, when she began working at Krueger International. She began working for the employer, a paper mill in Green Bay, in 1992.

The applicant worked in the rewinder department on the D-crew. At some point, the applicant complained to her supervisor (Mark Dalke) and the department head (Mike Stankevitz) about her D-crew coworkers' work habits. According to the applicant, the coworkers retaliated by engaging in acts such as taking her tools and tampering with personal property she kept at the jobsite.

According to the applicant, she complained to her supervisors, but was dissatisfied with their response. The employer's witnesses admitted pranks or acts of horseplay occurred in its plant, though they were by no means confined to the applicant. The employer had a rule against horseplay, but it was difficult to enforce when the employer never could determine for certain who was responsible.

In 1994, the applicant transferred to A-crew. She testified, however, that she continued to be harassed and complained to A-crew supervisor Mary Compton and department head Stankevitz. Ms. Compton, however, denied the complaints, or at least denies knowing that "someone was out to get" the applicant; if she had known, she testified, she would have investigated.

In late December 1994, the applicant applied for a transfer out of the rewinder department completely. The transfer form signed by the applicant listed the reason for the transfer request as: "Personal-getting off seven day swing." See exhibit 8.

On January 7, 1995, the applicant worked the 3:00 p.m. to 11:00 p.m. shift with the A-crew. The crew ordered and ate pizza. Shortly thereafter, the applicant passed around some "Hershey Kiss" candies from a drawer on the employer's premises where she kept personal belongings. She kept one candy kiss for herself, and put it in her mouth. According to the applicant, the candy became stuck to the roof of her mouth. She testified she then noticed a burning sensation in her mouth, spit the candy out, drank water, and eventually went to the bathroom and vomited.

Her supervisor, Mary Compton, was contacted. Ms. Compton gave the applicant permission to leave, and she gave the remainder of the candy kiss to Ms. Compton who locked it away.

The applicant testified that she bought a Popsicle on the way home. She did not go the hospital that day, but ate the Popsicle and rested. She testified that after arriving at home, her lips continued to swell.

The applicant's husband convinced her to call department head Stankevitz the next day. Mr. Stankevitz advised her to get medical treatment.

The applicant then went to the emergency room at St. Vincent's Hospital in Green Bay on January 9, 1995. The treating doctor took a history of the onset of a hot, burning sensation in the mouth after eating candy. The doctor noted the applicant complained of blistering on the tongue. On examination, the doctor noted slight edema (1) to the lateral tongue, and some erythema (2) and edema to the roof of the soft palate.

The emergency room doctor noted the etiology of the condition was not clear, but that a caustic material seemed most likely. See last page of exhibit E, January 8, 1995 report of Dr. Boardman. The applicant was told by the emergency room doctor to avoid rough or acidic foods in the near future that might irritate her mouth. The applicant testified at the hearing that she was treated for sulfuric acid.

Thereafter, the police were contacted. The investigating officer (Kenneth Brodhagen, Jr.) stated that while the applicant first only wanted the candy tested, she later demanded he interview coworkers. The employer did not investigate the matter further, as the police were involved. Supervisor Stankevitz did indicate that the applicant told him she did not want to get anyone in trouble, and would not name "who did it." The applicant returned to work on January 10, and was told not to discuss the incident with coworkers.

Upon returning to work on January 10, 1995, the applicant began or continued to experience an odd taste in her mouth. She passed out, and was taken by ambulance back to St. Vincent's emergency room. At the emergency room she complained of a three minute episode of dyspnea (shortness of breath), a two-day history of "not being herself" with chest discomfort, and a metallic taste in her mouth. The treating doctor thought the applicant may have been hyperventilating. He diagnosed dyspnea, anxiety, and dysgeusia (metallic taste).

Meanwhile, the police continued their investigation. Officer Brodhagen interrogated several coworkers. See notes in respondent's exhibit 1. They did not provide any information about who poisoned the candy, or even whether it had been poisoned. However, someone evidently implicated a coworker in some of the prior horseplay.

After contacting several testing companies, Officer Brodhagen located a laboratory to test the candy kisses. Two tests were done. See exhibits 5 and 10. One tested for pH (or acidity), another for the presence of certain chemicals using some type of lubricant as a control. The tests were negative, meaning that no poison or other foreign substance was present in the candy kisses.

However, the negative test result did not conclusively prove the candy was not adulterated. During the two weeks before the candy samples were tested, the candy kisses were in a Tupperware container. An employer of the testing laboratory, Nancy Ruiz-Garcia, spoke with Officer Brodhagen and told him that the way the candy had been packaged when sent to the laboratory prevented the laboratory from ruling out a volatile agent which might have evaporated from the candy kisses.

Meanwhile, the applicant had continued to seek treatment for the burns on her mouth. She saw Pat Teske, CFNP, an associate of the applicant's family doctor, on March 3, 1995. The applicant complained to Ms. Teske of having had chemical burns on the roof of her mouth arising from a "prank" at work two months past when something was sprayed on a piece of candy. Ms. Teske noted blisters, reddening and lesions were described in the applicant's mouth two months. Ms. Teske diagnosed these as "aphthous ulcers of the oral cavity." Ms. Teske also diagnosed sinusitis, bilateral OM (3), and pneumonitis. Ms. Teske went on to prescribe Floxin, an oral antibiotic. (4) During a follow- up examination on March 16, 1995, Diane Larsen, RCN, reported that all of these conditions, including the aphthous ulcers, had resolved. See exhibit E.

On March 12, 1995, she was examined by Richard G. Potts, D.O., regarding chest tightness and shortness of breath on referral by her family doctor, Peri Aldrich, M.D. Dr. Potts noted equivocal evidence for airways hyper-responsiveness, but ruled out occupational exposure and specifically, the candy kiss incident, as the cause.

In April 1995, the employer granted the applicant's December 1994 request for transfer to the "towel department." However, she claimed that the D-crew continued to making harassing remarks to her periodically. According to the applicant, she was told by the management personnel to whom she complained that she should toughen up, that women had to expect such treatment in the industrial setting, that if one woman cried about it they all looked bad, and that she was no longer just a mother. On the other hand, her current supervisor in the towel department, Patrick Cousineau, testified the applicant is an above average worker, who works hard and gets along with her coworkers.

The applicant testified that she lost work time in 1995 and 1996 due to headaches, sleeplessness and depression which she attributed to the work incident. Transcript 1, pages 4, 5, and 6. Indeed, she used her sick time and personal time for these reasons.

Indeed, job stress and harassment were noted in the medical records for April 10, 1995; a treatment note dated June 7, 1995 indicated the applicant had suffered severe emotional stress at work and had been evaluated, treated and started on an antidepressant as a result; a note dated July 21, 1995 mentioned increasing problems at work and headaches; a note from February 1996 mentions continuing but significantly decreased work stress; a note for December 1996 mentions two weeks of headaches for which she took vacation time from work.

In February 1997, depression and post-traumatic stress were diagnosed. She began treating with Prozac. She continued to complain of headaches, though they would resolve, and feelings of fatigue. She had trouble sleeping and when she did sleep, she cried in her sleep.

In May 1997, she told her family doctor Aldrich that she felt depressed, and complained of headaches. She appeared quite fatigued and began to weep during the exam. She mentioned taking 5 to 6 NoDoze per day, and that she tried to stop but could not. The applicant testified that she had taken 6 to 8 NoDoze pills per day since about the time of the candy kiss incident. Synopsis 2, page 1.

Dr. Aldrich diagnosed depression, possible fibromyalgia. She also diagnosed fatigue related to NoDoze. She took the applicant off work, and made an appointment for the applicant to be screened at Bellin Psychiatric.

Evidently after this visit, the applicant stopped taking the NoDoze. In a follow-up visit, C. Fries (a nurse practitioner associated with Dr. Aldrich), diagnosed post- traumatic stress syndrome, depression, and increased stress upon returning to work.

In July 1997, the applicant started treating with a psychiatrist, Chris Larson, M.D. He noted a history of harassment at work, and complaints of sleeping problems, depressed mood, poor concentration, weight loss, decreased energy. He noted that she took Zoloft, Prozac and Amitriptyline. However, he did not note the prior use of NoDoze. See exhibit A. Dr. Larson's July 3, 1997 note also specifically states that when the candy kisses were been tested, six of them were found to have been tainted with an acidic chemical.

The applicant continued to see Dr. Larson on a monthly basis, and saw a therapist as well. Dr. Larson kept the applicant off work for much of this time until November 1997.

2. Expert medical opinion.

As noted above, the applicant seeks compensation for temporary disability for the time she was off work from May to November 1997. She relates this absence to post-traumatic stress caused by work stress and specifically the physical effects of the alleged January 1995 candy-poisoning incident. Both sides, of course, offer medical reports on this issue.

The applicant's treating psychiatrist, Dr. Larson, diagnosed post-traumatic stress disorder secondary to past harassment; major depression, single episode, moderate severity; migraine headache; and severe psychological stressors. He treated this condition with Prozac and Amitriptyline. He opined that these conditions were directly related to a two-year history of harassment by coworkers at the employer's plant, and required extensive psychotherapy and medication.

Dr. Larson's opinion assumes the candy kiss was in fact tainted, and in fact that chemical testing disclosed an acidic agent. See exhibit A. He bases his opinion in part on the trauma from the lack of action taken by her employer despite the "medically serious injuries that have taken place on the job for her."

Dr. Larson noted that the applicant's disability may have pre-dated the point at which he began treating her in July 1997. His December 1997 practitioner report also states that her disability ended on November 5, 1997, and that she could return to work on that date. Exhibit D.

The applicant also submits the report of Dr. Aldrich, the applicant's family doctor, whose report essentially restates the diagnosis and opinion given by Dr. Larson. Exhibit C. His report, too, assumes as a fact that the applicant did consume a candy kiss that had been tampered with, and that resulted in throat burning and a respiratory disorder. He opined the two-year history of harassment, including the food tampering episode, caused the psychological condition and contributed to the applicant's stress-related headaches.

Finally, the applicant submits a report from a social worker, Bill Secor, MSW. However, Mr. Secor is not a practitioner qualified to express expert medical opinion on causation or extent of disability under Wis. Stat. § 102.17(1)(d). In addition, Mr. Secor mistakenly assumes that certain pranks allegedly directed at others in the workplace (razor blades in work gloves and the telephone) were directed at the applicant.

For its part, the respondent relies on the report and hearing testimony of Darold Treffert, M.D. His opinion is especially significant for its mention of the applicant's use of NoDoze. Dr. Treffert cited various reports where the applicant referred to her "living on NoDoze" or being addicted to them. His notes indicate she took them for a two-year period following the January 1995 candy kiss incident ending until the treatment with Dr. Aldrich in May 1997. At the hearing, Dr. Treffert re-emphasized that Dr. Larson did not consider the NoDoze use, and that this was a material omission which well might have resulted in a different opinion on post-traumatic stress.

Dr. Treffert opines that the applicant did develop psychiatric symptoms for which she sought treatment. He described these as psychological and stress-induced somatic symptoms as a result of the alleged work harassment. However, he thought her condition was best classified as an "Adjustment disorder with anxiety and depressive features." He did not think that she had post-traumatic stress disorder because, in his opinion, she had experienced, witnessed or confronted no event or events that involved actual threatened death or serious injury, or a threat to physical integrity, that resulted in a response of intense fear, helplessness or horror." He also explained that her actual condition was only transient, and was contributed to by the NoDoze use.

Dr. Treffert further opined that the candy incident was not the most upsetting incident to the applicant psychologically. He concluded instead that she was most affected by the "put-down" of sorts she felt by supervisors who implied that being a mother was somehow less worthy a vocation than being a millworker. He also concluded that the horseplay and the mother put-down comments did not constitute "unusual stress" under the School District No. 1 causation standard applied in cases of nontraumatic mental stress. (5) Dr. Treffert went on to opine that the only event that would exceed typical workplace events was the candy kiss incident--assuming it did occur-though, again, he did not feel that incident was even the principal psychological stressor.

3. Discussion.

The ALJ, as noted above, found for the applicant and awarded temporary disability for the periods requested, as well as medical expense of about $6,000, in what is for all intents and purposes a final order. (6)

Regarding medical causation, the ALJ concluded that the applicant suffered actual physical effects from the poisoned candy and that the incident contributed to her mental condition. Thus, the ALJ reasoned, the case presented a situation where a physical stimuli or injury case caused mental or psychological disability, so that the School District No. 1 "unusual stress" test does not apply. He noted the effects of the poisoned candy could not be separated out from the other incidents of harassment. He also noted that the ridicule that the applicant sustained from the supervisors and management personnel (not that she was no longer "just" a mother, was making other women look bad, etc.,) would not have occurred but for the candy poisoning incident.

The respondent petitioned for review, contending the ALJ lacked sufficient evidence upon which to conclude the applicant was poisoned, asserting it is equally possible she burned her mouth on the pizza she ate just before the candy kiss. The employer also contends there is no basis for the conclusion that the police investigation was inept. The employer also asserts that even if the applicant was injured by the candy, since the physical manifestation of her symptoms cleared quickly, they could not be associated with mental disability two years later.

In the commission's view, the principle issue in this case is whether the applicant has established that the candy kiss was tainted or somehow poisoned at the workplace, thus causing a physical injury. The commission is left with considerable doubt on this issue.

The commission acknowledges that the applicant testified, credibly to the ALJ, that she noted an immediate burning sensation when she put the candy kiss in her mouth. This testimony is borne out to some extent by her complaints of harassment by the D-crew. The applicant's testimony is also supported by the report of burns on the applicant's tongue and the roof of her mouth from the emergency room examination the next day, and the emergency room doctor's opinion that a chemical burn was the most likely cause.

On the other hand, none of the applicant's coworkers experienced any problems with the candy kisses that the applicant distributed to them. In addition, the applicant did not seek treatment on the date of injury, but instead went home, ate a Popsicle and rested. In the commission's view, a person who actually believed she had been poisoned would more likely have sought immediate medical treatment, especially if she continued to experience symptoms like puffiness of the lips upon reaching home.

In addition, when the applicant saw the emergency room doctor the day after the alleged poisoning incident, the doctor stated that the etiology of the edema and erythema on the applicant's mouth and tongue was unclear, but was most likely chemical burns. The doctor did not opine that the appearance of the edema and erythema established that they could have only been caused by a caustic chemical, or even that their appearance itself made a chemical origin more likely. Rather, the commission reads the note to mean that the edema and erythema could have been caused by something else (such as eating a pizza or other hot food), but that in reliance on the applicant's history (the candy had an abnormal taste and order, and burned her mouth) the doctor assumed they were from a caustic chemical.

This reading of the emergency room doctor's note is borne out by the report of Dr. Potts, who described the emergency room visit in his report of March 12, 1995. Dr. Potts noted that the applicant's slight edema and erythema observed in the emergency room on January 8, 1995 were:

"felt to be due to a chemical irritation or an allergic reaction to chocolate. She was told to avoid chocolates and to use Benadryl on a p.r.n. basis."

Exhibit E, March 12, 1995 report of Potts, page 1.

The commission also notes the applicant's willingness to associate the allegedly poisoned candy kiss to her presenting symptoms during her examination by certified nurse practitioner Teske two months later on March 5, 1995. At that time, the applicant had a presenting symptoms of congestion; sinusitis, an inner ear inflammation, and aphthous ulcers were diagnosed. These conditions all resolved within two weeks of the applicant's March 1995 appointment with Ms. Teske, after a course of antibiotics. Under these circumstances, the commission must question the applicant's statement to Ms. Teske that the symptoms were the continuing effects of the January 7, 1995, candy kiss incident, as opposed to a subsequently-arising seasonal illness that was resolved with the antibiotics that Ms. Teske prescribed.

In addition, the commission questions the applicant's credibility based upon her representations to Dr. Larson that six of the candy kisses were later found to have been tainted with an acidic chemical. Instead, as noted above, the chemical testing was inconclusive. Similarly, it appears the applicant conveyed to Mr. Secor, at least, the impression that the applicant's coworkers had put razorblades in her work gloves and on her telephone; in fact, these alleged incidents involved other workers. The commission also noted that while the applicant initially only wanted the police to test the candy and refused to tell supervisor Stankevitz who she thought had tampered with the candy kiss, she later demanded a full investigation and complained to her medical providers about the employer's lack of action on the investigation.

Further, commission notes that the emergency room physician did not note that the applicant's lips were swollen as she complained, and he reported only edema and erythema, not the blistering that the applicant testified to. Beyond that, the applicant did not consistently describe her conduct immediately after putting the allegedly poisoned candy in her mouth, sometimes indicating she rinsed her mouth and vomited relatively soon after consuming the candy, on other occasions indicating she brushed her teeth and vomited some length of time after putting the candy in her mouth. Finally, she has variously described the adulterating substance as BenGay or Flex-All products, some type of spray, an acidic chemical, and (at the hearing) sulfuric acid. The commission does not expect the applicant to identify the exact chemical agent the applicant claims was used, but the inconsistency on this point  --  as well as the dramatic change from a topical lotion to a corrosive acid -- cannot be disregarded.

In sum, the commission cannot find that the edema and erythema on the applicant's mouth and tongue noted in the emergency room on January 8, 1995, were actually caused by the candy kiss. The commission therefore concludes that the applicant has failed to establish that she was injured by the candy kiss on January 7, 1995. Thus, this is not a case where a physical injury caused the applicant's psychological disability. Rather, nontraumatic mental stress coupled with the applicant's self-prescribed NoDoze use caused her applicant's psychological disability. Consequently, the commission is faced with the question of whether the applicant's disability is compensable under the standard set out in School District No. 1.

On this point, the commission must reject the opinion of Drs. Larson and Aldrich, who assumed the applicant was in fact poisoned by her coworkers and sustained a significant medical injury as a result. Rather, the commission adopts the opinion of the respondent's independent medical examiner, Dr. Treffert. While he diagnosed an adjustment disorder caused by work stress, he concluded from his interview with the applicant that the most significant psychological stressors were the comments from supervisors about not being "just a mother" and suggesting she "toughen up." He also described the applicant's NoDoze use as a contributing factor. On this point, the commission notes the temporal coincidence of the NoDoze use -- which continued into 1997 -- with the applicant's claim for additional disability beginning in May 1997 (or more than two years after the events of January 1995 and the harassment involving the members of the D-crew.)

The respondent cannot be held responsible for the applicant's self-prescribed NoDoze use, at least under the facts presented in this case. Moreover, the comments from the applicant's supervisors do not establish a mental injury arising from an employment situation of greater dimension that the day-to-day emotional strain and tension which all employes experience. School District No. 1, at 62 Wis. 2d 377. Nor, in the commission's view, was such emotional strain and tension caused by the stress of the applicant's relationship with the D-crew coworkers, a stressor which Dr. Treffert describes as causally less significant anyway. Consequently, the applicant's claim for temporary disability and medical expenses arising from her psychological condition must be denied.

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

ORDER

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

Dated and mailed May 25, 2000
cookpa2.wrr : 101 : 3   § 3.41

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, 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. He described her appearance at the hearing as appropriately dressed, and not "flaky." He stated she became genuinely teary-eyed about how much she liked her job, and he felt she honestly wanted to work for the employer. He emphasized particularly that when the applicant transferred to the towel department she had no more problems with coworkers and that her supervisor there described her as a good worker. However, for the reasons discussed in the body of the decision, the commission disagreed with the ALJ's impression of the applicant's credibility on the question of whether the candy kiss was in fact tainted.

cc: ATTORNEY WILLIAM KULKOSKI
OLSON KULKOSKI GALLOWAY & VESELY SC

ATTORNEY THOMAS L SCHOBER
SCHOBER & ULATOWSKI SC

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Footnotes:

(1)( Back ) The presence of unusual amounts of fluids in subcutaneous tissue; i.e. swelling. Dorland's Illustrated Medical Dictionary, (26th ed., 1985).

(2)( Back ) Redness of the skin caused by congestion of capillaries. Dorland's Illustrated Medical Dictionary, (26th ed., 1985).

(3)( Back ) The commission infers that Ms. Teske's reference to noted dull TM on examination of the applicant's ear referred to the condition of her tympanic membrane, and that bilateral OM refers to otitis media or an inflammation of the middle ear.

(4)( Back ) Physicians Desk Reference, page 1712 (47th ed. 1993).

(5)( Back ) In cases of disability from nontraumatic mental stress, the so-called mental-mental cases where mental stimuli causes a psychological disability, the applicant must show the mental stress or stimuli was "unusual," or beyond the normal everyday stress that must be endured by similarly situated workers. On the other hand, when a physical injury causes the psychological disability, the usual straight causative test applies. See School District No. 1 v. DILHR, 62 Wis. 2d 370, 378 (1974) and Note, Eligibility for Worker's Compensation in Cases of Nontraumatic Mental Injury: The Development of the Unusual Stress Test in Wisconsin, 1987 Wis. L. Rev. 363, 365.

(6)( Back ) The ALJ retained jurisdiction only to determine the amount of the temporary disability award which should go to a non-industrial insurer for reimbursement.