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

MICHAEL BARRY, Applicant

COUNTY OF WALWORTH SHERIFFS DEPARTMENT, Employer

DEPARTMENT OF EMPLOYE TRUST FUNDS, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1994-045604


The applicant seeks compensation for duty disability under Wis. Stat. § 40.65. He alleges two distinct bases for his entitlement to duty disability.

The applicant first claims he is entitled to disability duty based on a nontraumatic mental injury suffered while performing his duty. The employer and the insurer (collectively, the respondent) concede the applicant was a protective service participant who has a disability, specifically a psychological or mental disability, that prevents him from working as a patrol officer. However, the respondent disputes that the applicant suffered a compensable nontraumatic mental injury while performing his duty.

The applicant also claims he is entitled to duty disability based on a physical injury or injuries, under both traumatic and occupational disease theories, suffered while performing his duty. The respondent disputes that the applicant has sustained permanent disability from a physical injury or injuries.

Hearings were held before an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development in this matter on February 17 and August 23, 2000. On April 17, 2001, the ALJ issued her decision finding the applicant eligible for duty disability benefits based on a compensable nontraumatic mental injury while the applicant was performing his duty on June 24, 1991. The employer filed a timely petition for review.

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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in 1955. He has been patrolman for the Walworth County Sheriff's department since 1982. His duties include investigating traffic accidents.

During his career with the employer, the applicant responded to numerous traffic accidents involving fatalities. For example, in May 1986, the applicant responded to a fatal accident involving a girl, Kelly Amon, about her son's age. In 1987, he responded to an accident involving a car full of family members and resulting in two deaths, including that of an eleven-month-old child. At issue in this case, however, are certain particular fatal motor vehicle accidents to which the applicant responded in 1991 and 1992.

The most troubling accident, and primarily identified in the medical reports as causing the applicant's post-traumatic stress syndrome, occurred on June 24, 1991, (1)  and involved Darroll Evenson. Mr. Evenson was the brother of the applicant's first wife, to whom the applicant was married from 1976 to 1989.

The applicant had known Mr. Evenson since the applicant met his former wife in 1974. At that time, Mr. Evenson would have been about 12 and the applicant about 19. The applicant and young Evenson played sports together, and hunted and fished together. Indeed, the applicant bought Mr. Evenson his first rifle.

Even after the applicant divorced Mr. Evenson's sister in 1989, the two men remained friends. The applicant still went to his former wife's family's gatherings. In fact, the applicant, Mr. Evenson, and the applicant's son would all three hunt together.

On June 24, 1991, the applicant arrived at the scene of an accident to observe a truck with extensive damage. He grabbed his medical kit, tried to open the driver's door, but could not. He opened the passenger door and noticed the victim was Mr. Evenson.

According to the applicant, the injuries were about the worst he had ever seen. The applicant described it as grotesque. Mr. Evenson had been partially decapitated, so that his face between his mouth and eyes were sheered away. Blood and tissue were coming out of the gaping wound. Mr. Evenson could not speak, though he was still alive and his eyes were open. The applicant had the sense that Mr. Evenson's eyes were pleading for help.

The applicant testified he held Mr. Evenson's hand until the rescue squad arrived. February 2000 transcript, page 101. In another hearing involving the applicant's claim for benefits under Wis. Stat, ch. 102, the applicant testified that he only held Evenson's hand for a second. July 8, 1997, transcript, page 24. Another responding officer, Gibby Maas, who actually arrived at the scene first, did not recall the applicant holding Mr. Evenson's hand, but merely looking at Mr. Evenson, and commenting about how severely injured he was. August 2000 transcript, page 40. Mr. Maas verified, though, that the applicant approached the passenger side of the vehicle, and that Mr. Evenson was still alive when the applicant saw him.

After the accident, the applicant went to his squad car and told the dispatcher the victim was a family member. He gave the dispatcher numbers so the family could be notified. The applicant was sent to bring Mr. Evenson's father (the applicant's former father-in-law) to the hospital. The applicant went to the emergency room waiting area with Mr. Evenson's family. At some point, the applicant went into the emergency room itself and saw Mr. Evenson struggling with the medical staff on the gurney. A helicopter was called to take Mr. Evenson to another hospital. However, Mr. Evenson died before he was transported.

The applicant spent the next day making funeral arrangements with his ex-wife, and driving around family members. He was not offered any kind of "critical debriefing" by the employer; the employer has no policy offering such a briefing. Instead, the sheriff's department apparently left him a message saying he was absent without leave, though the applicant testified he had told a superior he would not be in to work.

The applicant returned to work thereafter. However, about three months after the Evenson accident, the applicant began noticing changes in himself. He became withdrawn and less sociable. He began experiencing trouble sleeping. He started losing weight. He began having nightmares and flashbacks about Mr. Evenson's accident and injuries. He continued to work, but these symptoms increased.

Ten months after the Evenson accident, between May 8 to 10, 1992, the applicant responded to three traffic fatalities in three days. The May 8, 1992, traffic death involved Jayne Davis. The applicant knew her personally, and had ridden in her car. Twenty-four hours later, he responded to an accident resulting in the death of a thirteen-year-old girl. The next day, May 10, he responded to an accident with a third fatality, though he does not provide specific details. A month later, in June 1992, he responded to another accident resulting in another child's death.

The applicant was eventually diagnosed with post-traumatic stress disorder. His mental and physical condition continued to deteriorate. His post-traumatic stress disorder grew worse; he became depressed; and he abused alcohol. Following a work-related traffic accident at a high rate of speed, the applicant suffered back and neck problems which have been diagnosed as chronic myofascial pain. He was taken off work when he suffered an exacerbation of back pain in October 1994 while reaching into a file cabinet at work.

The applicant was eventually referred to a psychiatrist, Federic Will, M.D. The applicant complained of nightmares, flashbacks, inability to sleep, chronic anxiety, frequent thoughts of death, and chronic pain. In November 1994, Dr. Will placed the applicant in a psychiatric hospital for post-traumatic stress, depression, anxiety and alcohol abuse.

The medical and psychological experts agree that the Evenson accident played a causal role in the applicant's disability from work. John M. Rohr, M.D., opined that responding to the accident caused the applicant to suffer from a post- traumatic stress disorder, which evolved into a major depression. He thought the applicant's prognosis was poor, and that the psychological trauma probably precluded a return to work as a peace officer. Exhibit B.

John R. Marshall, M.D., opined that responding to the Evenson accident, coupled with responding to the fatalities of May and June 1992, caused the applicant to experience post-traumatic stress syndrome which completely disabled him from employment as a police officer. Exhibit I, practitioner's report on form WKC-16-B and attached letter. Dr. Marshall added that he has been a consultant to the Madison Police Department for twenty years, and has never heard of an officer experiencing anywhere near a similar series of traumas.

Kenneth Robbins, M.D., who was retained by the employer's attorney, diagnosed post-traumatic stress disorder, caused as a result of witnessing a number of traumatic events at work. Dr. Robbins's note particularly mentions the death of the applicant's brother in law, that is, the Evenson accident. Dr. Robbins emphasized the applicant's drinking problem, and the possible relationship between that and his depression. However, Dr. Robbins flatly opined that the applicant should not return to police work, as doing so would likely worsen his post-traumatic stress disorder. Exhibit 2.

Dr. Will, as noted above, also diagnoses post-traumatic stress disorder. His November 22, 1994, intake note relates this condition to physical altercations, as well as automotive incidents and accidents in the line of duty. His November 28, 1994 discharge summary notes flashbacks involving the Evenson accident. A colleague, Thomas J. Goral, M.D., reported in a note documenting an evaluation on November 22, 1994, that the applicant's post-traumatic stress syndrome was related to the traumatic experience of investigating an accident involving a close relative who was badly injured and died in a motor vehicle accident. Dr. Will opined that the applicant was permanently disabled, and should not return to work as a police officer. Exhibit EFT-1, items E and I.

As noted above, the applicant is seeking duty disability benefits under Wis. Stat. § 40.65 available to a "protective occupation participant" under certain circumstances. A "protective occupation participant" is a public employee whose activities require exposure to a high degree of danger and also require a high degree of physical conditioning. A protective occupation participant is entitled to a duty disability benefit if: (a) the employee is injured while performing his or her duty or contracts a disease due to his or her occupation; (b) the disability is likely to be permanent; and (c) the disability causes the employee to retire from his or her job, or results in a reduction in pay, an assignment to light duty, or adversely affects promotional opportunities within the service. Wis. Stat. § 40.65(4).

Claims for duty disability are handled initially by the Department of Employee Trust Funds (DETF). A person applying for duty disability benefits must submit to DETF a certification of disability from at least two physicians, and a statement from his or her employer stating that the injury or disease causing the disability was duty-related. DETF then determines whether the person is entitled to duty disability benefits. If unsatisfied with DETF's determination, the person may "appeal" to the Department of Workforce Development (DWD.) In hearing the appeal, DWD is required to follow the general procedures used in worker's compensation claims.

In this case, the applicant submitted two statements from physicians certifying that he has post-traumatic stress syndrome, that the injury precludes a return to law enforcement work, and that the impairment from law enforcement work was caused by responding to the fatal accident involving his brother-in-law. Indeed, as outlined above, the employer's independent medical examiner opined that the applicant has post-traumatic stress disorder as a result of incidents he viewed at work, that his post-traumatic stress condition will likely worsen if he returns to police work, and that he should not return to police work. See exhibit 2.

DETF concluded that the applicant had reports from two physicians certifying the applicant's duty disability. However, the employer refused to certify that the condition was duty-related. Consequently, DETF denied the claim under Wis. Stat. § 40.65(2)(b). See Exhibit ETF-1, item M. As outlined above, the applicant appealed to DWD. Following a hearing, the presiding ALJ found that the applicant's condition was in fact duty-related. The employer appealed to the commission.

Also as outlined above, the respondent concedes that the applicant was a protective occupation participant and that he had disability that caused him to retire. In other words, the respondent does not dispute that the applicant has post-traumatic stress syndrome, or that the condition disables him from employment as a police officer. Nor really does the respondent dispute that the events the applicant witnessed at work resulted in a nontraumatic mental injury and the disabling post-traumatic stress condition. Rather, the employer's position on appeal, as at the hearing before the ALJ, is that the psychological problems which prevent the applicant from working were not caused by sufficient mental stress under the standard-sometimes referred to as the "extraordinary stress" standard-required to establish liability for a non-traumatic mental injury by School District No. 1 of Brown Deer v. DILHR, 62 Wis. 2d 370 (1974.) (2)

In School District No. 1, the court explained that despite the broad definition given to "accident" under this state's worker's compensation law, the term does not encompass every occurrence or event which befalls an employee while performing service growing out of or incidental to employment. The court noted that the worker's compensation statute was not intended as accident insurance or a health insurance measure. The court found that to be especially true of cases involving alleged mental injuries. Id., at 62 Wis. 2d 374-376.

The court observed, too, that it has always exercised a degree of hesitancy in granting compensation for mental injuries, especially those injuries of nontraumatic causation. The court explained that its hesitancy is based on the concerns of malingering or opening the floodgates of fraudulent claims.

Thus, the court held, that in order to be compensable,

"mental injury nontraumatically caused 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, at 62 Wis. 2d 377-78.

The court went on to say that the facts of the case in School District No. 1, where a high school guidance counselor claimed a mental injury from the receipt of critical remarks from students, showed only "an occurrence encountered by numerous other employees in their day-to-day employment." However, the court also said it did not intend to "close the door" to those situations in which compensation may be warranted, stating:

"In refusing to find the employer liable under ch. 102, Stats., in the instant action, however, we do not intend to close the door to those situations in which compensation may be warranted. We do not believe 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 be denied compensation. The common sense viewpoint of the average man would deem such a situation to be accidental and liability would be found under sec. 102.03 (1) (a). Such a situation would undeniably be so out of the ordinary from the countless emotional strains that an employee encounters daily that this court could effectively evaluate the mental injury allegedly incurred."

School District No. 1, at 62 Wis. 2d 378.

Indeed, it was that type of situation which the court addressed next in Swiss Colony, Inc. v. ILHR Department, 72 Wis. 2d 46, 51 (1976), where compensation was allowed. The supreme court has described the School District No. 1 standard as an objective test, summarizing it as: "Would a person of ordinary sensibility be emotionally injured or mentally distressed in the absence of unusual circumstances." Jensen v. Employers Mutual Casualty Company, 161 Wis. 2d 253, 268 (1991). The court of appeals also stated that Swiss Colony stands for the proposition that "injury includes emotional stress without physical trauma if it arises from exposure to conditions and circumstances beyond those common to everyday life." International Harvester v. LIRC, 116 Wis. 2d 298, 302 (Ct. App., 1983).

The School District No. 1 "extraordinary stress" standard applies in cases, such as this one, involving a claim for duty disability under Wis. Stat. § 40.65. See Random Lake v. LIRC, 141 Wis. 2d 559, 565-66 (Ct. App. 1974). Consequently, the commission has previously considered cases where law enforcement officers have sought duty disability for mental stress.

For example, in Balistreri v. City of Madison, WC Claim No. 87043556 (LIRC, January 20, 1994), aff'd Case No. 95-02646 (Wis. Ct. App. September 26, 1996), a police officer claimed stress from several work-related events, including helplessly watching a friend die in a burning car, run-ins and undue criticism from a supervisor, and lack of backup support on duty. The commission concluded that, except for the burning car incident, none of the events amounted to extraordinary stress. The commission went on to find that the burning car incident, while amounting to extraordinary stress and occurring on duty, did not have any lasting or long term disabling effect on the worker. The commission therefore denied compensation.

In Joseph Eells v. City of River Falls, WC Claim No. 92071843 (LIRC, June 3, 1994), aff'd sub nom. Eells v. LIRC, Case No. 95-0367 (Wis. Ct. App. September 6, 1995), a police officer claimed injury from observing the suicide of a young man in a car with shotgun whom he had been dispatched to check on. When the officer approached the car, the young man shot himself in the head. The officer checked the victim's pulse, etc., and was disturbed by the grisly scene. While the ALJ found the claim compensable, the commission reversed, noting that while witnessing suicide was clearly not an everyday event, it was not extraordinary stress of greater dimensions than the day-to-day strains experienced by police officers.

In affirming the commission in Eells, the court of appeals considered the argument that the commission misapplied the School District No. 1 case by comparing the stresses and strains suffered by the worker in question to those similarly employed. Mr. Eells argued that the commission should have made the comparison with all employees, not just those similarly employed. However, the court of appeals noted that the School District No. 1 case described an accident as a fortuitous event unexpected and unforeseen. The court of appeals went on to observe that the nature of a person's job determines what is expected or foreseen, and concluded the commission did not err in its "similarly situated" application of the School District No. 1 standard.

Recently, the commission considered another similar case, Stephen J. Highman v. Dunn County Sheriff's Department, WC claim nos. 1993024207, 1992040723, 1994060086 (LIRC, June 3, 1999), aff'd sub nom. Highman v. LIRC, Case No. 00-0801 (Wis. Ct. App. November 14, 2000). There, the applicant's claim for disability from a non-traumatic mental injury arose from two altercations with suspects. One required that he use deadly force. The ALJ denied compensation, citing School District No. 1.

The commission affirmed, concluding it was not 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. The commission further concluded that the fact that an investigation ensued from what the applicant himself described as a use of deadly force could not be considered unusual, as the sheriff had to conduct an investigation once the deadly force allegation was made. In affirming the ALJ, the commission also reiterated the observation made by the court of appeals in Eells that:

"[t]he comparison [under the School District No. 1 case] 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 commission also notes a relatively recent reported decision, Bretl v. LIRC, 204 Wis. 2d 93 (Ct. App. 1996). There, Mr. Bretl, a police officer shot and wounded a suspect who had threatened him. Thereafter, Mr. Bretl filed a claim for post- traumatic mental stress on this incident. The record showed that Mr. Bretl also had a number of other stressors in his personal life. The commission in this case specifically found that the applicant did not suffer post-traumatic stress syndrome from the shooting incident, thus denying the claim on a straight medical basis apart from the legal test in School District No. 1. However, the commission also concluded that shooting a suspect in the line of duty was "not outside the norm for a small town police officer." Bretl, at 204 Wis. 2d 104.

In Bretl, the commission considered that officer Bretl was an experienced officer and member of the city's SWAT team, that the chief of police testified that such a shooting incident was not unusual for police officers, that officer Bretl first fired warning shoots and did not intend to (and in fact did not) kill the suspect. After assessing the evidentiary details, the commission concluded that

"Although clearly the shooting incident was not an everyday event and was an unfortunate incident . . . the incident did not constitute unusual stress of greater dimensions than the day to day emotional strain and tensions experienced by police officers."

Bretl, supra, at 204 Wis. 2d 106. However, the court of appeals appended this footnote to its decision affirming the commission:

"We add a note of caution. The ALJ decision appeared to adopt a `bright line' rule that law enforcement officers can never contract employment related emotional injuries from shooting a suspect. However, the objective test that was first discussed in Probst requires LIRC to individually assess each claim. It is clear that LIRC did so in this case. It is not so clear that the ALJ decision did so. We can envision a number of situations faced by a law enforcement officer that exceeds the day-to-day emotional strain all law enforcement officers experience; e.g., shooting a juvenile carrying a toy gun that resembled a real weapon."

Bretl, at 204 Wis. 2d 107, note 1.

In the case now before the commission, both sides provide expert testimony to aid in determining whether the incidents observed by the applicant in his duties, and which caused the development of his disabling post-traumatic stress syndrome, meets the "extraordinary stress standard" set out in School District No. 1.

The applicant's expert is Stephen Sheets. He is retired from the City of Madison Police Department. He was a street officer, then went into training, eventually was promoted to lieutenant and became director of training.

Mr. Sheets testified that the City of Madison has a critical incident policy providing for debriefing whenever an officer encounters an extraordinary event in his or her duties. An event triggering debriefing includes a gory situation, a high profile accident involving a celebrity, a death caused by the officer, a death of a fellow officer, or a situation where the victim has a relationship with the officer. February 2000 transcript, page 65. In these cases, the officer has no choice; he must undergo debriefing.

As a supervisor, Mr. Sheets was trained to identify situations requiring this kind of critical incident debriefing. February 2000 transcript, page 67. Asked to identify the kinds of incidents identified in his training regarding the critical incident policy as most stressful or most extraordinary, Mr. Sheets responded that there was no "hierarchy." However, he was taught that the death of a child, an attempt to save a child, a relationship between the police officer and the victim, and the "goriness" or "awfulness" of the injuries, were most critical in a critical incident. February 2000 transcript, page 69. His own experience in administering the program bore those criteria out.

Mr. Sheets went on to testify that he would give the Evenson traffic fatality a very high ranking for stress. He pointed out that the applicant and Evenson had known each other for years, that they had had one-on-one social interactions, that it was not a simple "passing on the street" kind of relationship. He also identified the gore and disfigurement from the collision as a factor.

Mr. Sheets also testified that the events of May 1992, ten moths after the death of Evenson, would have been "near the top in terms of terrible" given the involvement of the child, and the proximity of the accident. February 2000 transcript, page 71.

On cross-examination, Mr. Sheets identified six events in four years when he ordered officers into critical debriefing. These were two incidents of suicide involving mutilated bodies, including one involving a fellow officer's son. He identified a gory accident involving a motorcyclist, and one case where a baby wandered into a creek and drowned.

The employer's expert was Edward Nowicki. He has been involved in law enforcement in a rural setting, albeit part-time, since 1979. He is currently a training officer for the Twin Lakes Police Department, a position he had held since 1981. He has experience as a City of Chicago officer and detective. He was also police chief of Silver Lake, Wisconsin, a small town in rural western Kenosha County, from 1979 to 1981. He also was a full-time police training specialist for many years at Milwaukee Area Technical College.

Mr. Nowicki testified it was not an everyday occurrence for a law enforcement officer to know a victim, but it was more likely in a rural setting like Walworth County. August 2000 transcript, page 83. He never arrested anyone he knew or came across a victim who was someone he knew while working as a Chicago police officer.

However, Mr. Nowicki testified that-in his employment as a small town officer-he regularly saw accidents involving people he knew in the community who were badly injured. He has responded to 10 or 12 fatalities, all in his employment in Silver Lake or Twin Lakes, Wisconsin. August 2000 transcript, page 84. One of these involved a dispatcher he knew very well. August 2000 transcript, page 90.

Mr. Nowicki cited, too, the examples of an officer whose brother murdered their grandmother, and of the Choctaw, Oklahoma, chief of police who responded to a call to discover his wife and child were dead. These types of incidents, Mr. Nowicki testified, "can happen, [d]oesn't happen every day but it goes with the turf." August 2000 transcript, page 97.

Asked to identify events he thought extraordinary for law enforcement officers, Mr. Nowicki identified the Columbine High School incident, the bombings of the federal building in Oklahoma City and of the World Trade Center in New York, and a large passenger airliner crashing. August 2000 transcript, page 91. Asked about a recent incident in Milwaukee, where two Milwaukee County sheriff's deputies died in a helicopter crash, Mr. Nowicki testified that that would be "pushing the line" if a responding officer knew the officer, but that it would still be part of the normal scope of an officer's duties. August 2000 transcript, page 92. He observed that if a law enforcement officer does not undertake these unpleasant duties, no one else can. August 2000 transcript, page 92.

Asked if the Evenson accident would have been an extraordinary event as pertains to similarly-situated law enforcement officers, Nowicki responded:

"It's not something you see everyday but it's something that you do experience as a police officer going about your duties, particularly when you are assigned as a patrol officer and patrolling rural highways."

August 2000 transcript, page 83. Asked essentially the same question later on, he gave the same answer. August 2000 transcript, page 88. He reiterated that the experiences of the applicant were not beyond the realm of what officers encounter in similar situations. August 2000 transcript, page 105.

Mr. Nowicki testified, too, about the May 1992 fatal accident involving Jayne Davis (the acquaintance of the applicant who died in a car the applicant had ridden in.) Nowicki testified it was not pleasant, or something one saw everyday, but it was not "out of the ordinary that you encounter in your duties as a police officer." August 2000 transcript, page 89. He noted that officers are required, mandated, to perform such duties. Mr. Nowicki went on to opine that nothing in the applicant's testimony stuck out in his (Nowicki's) mind as something that any officer under similar circumstances would not encounter in performing his or her duties. August 2000 transcript, page 90.

Police officers, including especially rural police officers assigned to highway patrol, must expect to encounter fatal motor vehicle accidents involving gory injuries. The commission acknowledges, too, that a rural officer can expect that some of these accidents will involve persons known to the officer. However, the commission concludes that the applicant in this case nonetheless has established that his mental injury meets the standard set out in School District No. 1.

First, the Evenson accident that the medical experts primarily identify as the source of the applicant's disabling post-traumatic stress disorder was not merely a fatal accident involving gory injuries. Rather, it was an extremely gruesome, fatal accident involving a 25-year old young man, Darroll Evenson, whom the applicant had known since Mr. Evenson was twelve. The applicant encountered Mr. Evenson while he was still alive, and understandably believed Mr. Evenson's eyes conveyed a plea for help. The applicant provided the emergency dispatcher the numbers of the Evenson family. He brought Mr. Evenson's father to the hospital. He helped make the funeral arrangements.

Despite the fact the applicant had divorced Mr. Evenson's sister two years before the accident, the commission is satisfied that Mr. Evenson and the applicant remained close. The men did the type of things, family hunting trips and reunions, that occur between former in-laws following an amicable divorce from a marriage that produces children. Mr. Evenson was the uncle of the applicant's son; it is entirely credible to the commission that Mr. Evenson, the applicant, and the applicant's son still hunted and fished together at the time of the accident. Indeed, there is little in the record to question the applicant's testimony about the relationship between the men.

The commission notes too the lack of divergence in expert medical opinion. The doctors agree that the applicant has post-traumatic stress syndrome, and that it disables the applicant from working as a police officer. The medical experts, including an independent examiner retained by the employer, point to the Evenson accident as the cause of the disabling post-traumatic stress syndrome. While it may be mixing analytic apples and oranges, the commission believes the unanimity among the medical experts provides some evidence that the Evenson incident was unusually stressful.

Moreover, the applicant's expert police officer, Mr. Sheets, was more credible than the employer's expert, Mr. Nowicki. In his tenure as a part-time police chief and training officer in rural Wisconsin since 1979, Mr. Nowicki could only point to one fatal accident involving someone, a dispatcher, whom he knew. In that case, Mr. Nowicki did not know the dispatcher as well as the applicant knew Mr. Evenson, he did not describe the dispatcher's injuries to be gruesome as Mr. Evenson's, and he apparently did not come upon the dispatcher in the throes of death.

Instead, to relate an experience as bad or worse than that experienced by the applicant, Mr. Nowicki had to turn to the anecdotal experiences of others. The commission does not doubt Mr. Nowicki's testimony about the officer who came upon his dead grandmother and found out his brother was a suspect happened, or about the tragedy of the Oklahoma sheriff who responded to an accident involving his fatally injured wife and child. But while Mr. Nowicki can point to other unusual tragedies affecting police officers personally, that does not mean what happened to the applicant was not extraordinary.

Further, Mr. Nowicki acknowledged the efficacy of the "critical incident" debriefing discussed by applicant's expert Sheets. The commission by no means equates a "critical incident" justifying debriefing with an extraordinary event meeting the School District No. 1 standard. However, the "critical incident" protocol makes the point that while a law enforcement officer's duties are stressful, some events are unusually so, and therefore warrant the critical incident debriefing. Both Mr. Nowicki and Mr. Sheets testified that the Evenson accident was an event that would have warranted critical debriefing if such a policy had been in place in Walworth County.

Moreover, Mr. Nowicki's testimony seems to limit the "extraordinary stress" standard for rural police officers to cases of mass murder (such as terrorist bombings or school shootings) and large airplane crashes. He would not describe responding to the death of two fellow officers in a helicopter crash as unusually stressful, nor really did he say the Oklahoma sheriff who came upon his wife and child killed in a car crash experienced extraordinary stress. Instead, he testified these events "went with the turf." This leads to the concern that Mr. Nowicki sets the bar for a rural police officer too high. Mr. Nowicki's it-comes-with-the-territory testimony indicates that he comes close to applying the very type of bright-line test that the Bretl court cautioned against.

The employer points out that police expert Sheets characterized the same events- investigating the death of an acquaintance, investigating a gory accident, investigating the death of child-as both extraordinary and expected in the duties of a police officer. In other words, officer Sheets testified that a police officer may reasonably expect to investigate gory accidents, accidents involving children, and accidents involving acquaintances. However, the Evenson accident was not simply extremely gory, nor did the accident involve a passing acquaintance or someone the applicant merely "knew." It was gruesome accident involving a close friend and a former in-law.

The commission believes this distinction is relevant. Despite referring to the situation causing mental stress as being a "fortuitous event unexpected and unforeseen" -- that is, an "accident" -- the School District No. 1 test does not rest on "foreseeability" in an absolute sense but rather a comparative one. Thus, the court compares the event causing stress to the day-to-day strains and tensions experienced by workers generally, and inquires whether the event was "so out of the ordinary from the countless emotional strains and differences that employees encounter daily without serious mental injury." Indeed, the court went on to observe that an "accident" could encompass a situation where a worker is criticized or berated over a significant period of time. That situation, while undoubtedly foreseeable in almost any occupation or profession in an absolute sense, would still "undeniably be so out of the ordinary from the countless emotional strains that an employee encounters daily that [the] court could effectively evaluate the mental injury allegedly incurred." Id. at 62 Wis. 2d 378.

The employer asserts that the commission should apply a similarly-situated test, comparing the applicant's stress to that experienced by other rural highway patrolmen. The commission agrees. However, the similarly situated test does not preclude an award in this case.

The facts of this case, the applicant's investigation of an accident where he encountered a close friend and former in-law gruesomely injured and in the throes of death, establish a situation compensable under the School District No. 1 standard, even for a rural highway patrolman. The commission acknowledges that an event of this nature is not unknown to police officers. However, that does not preclude the commission from determining that it was also so out of the ordinary when compared to the day-to-day emotional strain and tension that a rural policeman experiences and encounters without mental injury as to be compensable.

In sum, the applicant suffered a compensable non-traumatic mental injury while performing his duty on June 24, 1991. The injury caused a permanent mental disability that caused the applicant to retire. He is therefore entitled to duty disability benefits.

Like the ALJ, the commission concludes that it is not necessary to reach the applicant's other claims raised at the hearing.

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

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed. Accordingly, the Department of Employee Trust Funds shall compute benefits payable to the applicant pursuant to Wis. Stat. § 40.65 and shall review the benefits and adjust them on a periodic basis as required by the statute.

Dated and mailed August 8, 2001
barrymi . wrr : 101 : 1 ND § 3.41

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


cc: 
Attorney Bruce F. Ehlke
Attorney Douglas M. Feldman
Attorney Robert F. Weber


Appealed to circuit court. Affirmed April 9, 2002.

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Footnotes:

(1)( Back ) This is the date given in Officer Maas's report at exhibit 10, and which he verified by his testimony, August 2000 transcript, page 33. For the purposes of analysis, of course, it does not matter whether the accident occurred on June 24 or June 26.

(2)( Back ) For general discussions of the "extraordinary stress" standard, see Neal & Danas, Worker's Compensation Handbook § 3.41 (4th ed. 1997) 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. 

 


uploaded 2001/08/13