DEBBIE KUECHENMEISTER, Applicant

BALL CORP, Employer

FIDELITY & GUARANTY INS CO, Insurer

The employer submitted a petition for commission review alleging error in the administrative law judge's Findings and Order dated November 23, 2001. The applicant submitted an answer and both parties filed briefs. At issue is whether the applicant suffered a non-traumatic mental injury, as a result of a work injury on May 11, 2000.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge concerning his assessment of the credibility of witnesses, hereby reverses the findings and order below, and substitutes the following therefor:

The applicant worked for the employer as a machine operator for 26 years prior to May 11, 2000. For many of those years the applicant worked in the same area as a co-worker, Harriet Gee. The applicant and other workers had problems with Ms. Gee who would start yelling at them for no apparent reason. The applicant testified in 1994, Ms. Gee confronted her at work and during a verbal confrontation also put her hands around the applicant's neck. Subsequent to the incident in 1994, the applicant continued to work for the employer in the same area as Ms. Gee with apparently no further serious problems until May 11, 2000.

On May 11, 2000, Ms. Gee came into the worker's locker room and confronted the applicant, and accused her of picking on Ms. Gee and called the applicant a liar. The applicant testified she did nothing to provoke Ms. Gee, and it was not unusual for Ms. Gee to simply come into a room and start yelling at people. The applicant testified Ms. Gee confronted her just a few inches from her face, and was yelling and swearing at the applicant. Both Ms. Gee and the applicant were given a verbal warning by the employer even though the applicant felt she had not done anything wrong, and other witnesses corroborated her story. The applicant grieved the discipline, and subsequently the discipline was downgraded to a counseling incident. The applicant felt even that level of discipline was unfair, but her union refused to pursue the grievance procedure any further. The applicant believed the employer was biased in favor of Ms. Gee, and always believed her and did not believe the applicant's version when there was a confrontation.

Following the incident on May 11, 2000, the applicant went home and was very upset and had a stomachache, and could not sleep and developed hives. The applicant saw Dr. Alexander on May 25, 2000, for hives and was given antibiotics and pills, and was taken off of work until July 31, 2000. The applicant's hives went away after a couple of weeks, and she underwent counseling with a social worker.

The applicant was never struck by Ms. Gee and had never requested to be moved out of the area where Ms. Gee worked. The applicant claimed she was emotionally upset due to the work incident on May 11, 2000, and was unable to sleep, was not eating, had an upset stomach, diarrhea, was nervous and depressed. The applicant admitted she had previously treated for psychological problems with Dr. Alexander prior to May 11, 2000. Dr. Alexander's notes on July 19, 1999, refer to a depressed mood with crying, and she was experiencing stress at work and at home. On August 23, 1999, Dr. Alexander referred to the applicant taking Zoloft, an anti-depressant. On January 24, 2000, Dr. Alexander's notes indicate the applicant was complaining of sleeplessness and weight loss, and her son had been in an accident. The applicant was placed on Prozac in January 2000, according to Dr. Alexander's notes, and the applicant was subsequently switched to Paxil, another anti-depressant in February of 2000.

The applicant admitted she was concerned about her upcoming wedding and family relationships in August 2000. The applicant believed she was threatened with discharge for any further confrontations with Ms. Gee based on her verbal reprimand, following the incident on May 11, 2000. However, Ms. Shobe, the employer's human resource manager, testified the applicant was not specifically threatened with discharge for any further confrontations. The applicant's reprimand contained standard verbiage that future discipline could be up to and including discharge for similar behavior. Ms. Shobe testified that prior to May 11, 2000, the applicant never complained to management or the company regarding harassment by Ms. Gee, and she had not requested to be transferred out of any work unit where Ms. Gee might be present.

Dr. Alexander completed a WC-16B dated June 30, 2000, in which he stated the applicant suffered a work injury on May 11, 2000, when she had an argument with a co-worker, and due to the emotional stress and strain she developed a headache and rash. Dr. Alexander opined the applicant suffered neurodermatitis, anxiety and depression as a result of the work incident. The medical notes on May 25, 2000, indicate the applicant reported she was seen for a medical check for a rash which had resolved. Ms. Schuster, the applicant's treating social worker, indicated on July 14, 2000, the applicant had been unable to work since May 25, 2000, due to a severely traumatic event, which occurred in her work environment.

Dr. Davison examined the applicant on July 19, 2000, on behalf of the employer. Dr. Davison completed a complete psychiatric evaluation and psychological testing, and found no symptoms of sufficient magnitude to warrant a diagnosis. Dr. Davison opined the applicant should return to work at full duty with no restrictions or limitations, and showed no evidence of permanent partial disability and no evidence of injury at that time. Dr. Davison noted the applicant's thought process was entirely normal, and there was no hint of looseness of association, clang association or flight of ideas. Dr. Davison stated in a letter dated July 9, 2000, the applicant had four psychological tests and a thorough psychiatric interview, and concluded the applicant shows no symptoms of sufficient magnitude to warrant a psychiatric diagnosis.

The employer also included a report prepared concerning the incident in 1994, which included versions by Ms. Gee and the applicant. Ms. Gee contended she had simply tried to talk to the applicant, and the applicant became upset and pushed her which resulted in a more heated argument. There were no witnesses to the incident, and there is no mention in the report that Ms. Gee tried to choke or put her hands on the applicant in any way.

Under Wisconsin law a non-traumatic mental injury is compensable if it arises out of mental stresses which are of a greater dimension then the day-to-day emotional strains and tensions, which all employees must experience in similar employment. School District Number 1 v. DIHLR, 62 Wis. 2d 46 (1976). It is clear in this case on May 11, 2000, the applicant underwent a stressful confrontation with a co-worker which led to a screaming match, and both employees received a subsequent verbal reprimand. The commission consulted with the administrative law judge concerning his assessment of the witnesses' demeanor and testimony as to the work incidents involving Ms. Gee in 1994 and May 11, 2000, and the applicant's version of the nature and onset of her mental problems following the work incident on May 11, 2000. The administrative law judge indicated that he found the applicant's version to be credible, and he noted the applicant's hives following the work incident in May 2000, was a key development which supported her credibility. However, the fact the applicant developed hives does not establish that she suffered a mental injury. The hives are an indication of her reaction to a stressful situation, but the applicant is not claiming a physical injury due to the hives, but a non-traumatic mental injury.

The evidence indicates that the applicant had preexisting problems with anxiety and depression which are documented in Dr. Alexander's notes. Dr. Alexander's notes as late as January 24, 2000, indicate the applicant was complaining of sleeplessness and weight loss, and her son had been in an accident. The applicant was under stress and concerned about her upcoming wedding in August 2000, and she had been prescribed anti-depressants several months before the work incident on May 11, 2000.

Dr. Alexander opined the applicant suffers from anxiety and depression as a result of the work incident on May 11, 2000, however Dr. Alexander does not give any explanation how the applicant's anxiety and depression arose out of the work incident given her preexisting problems. Dr. Alexander simply completed a WC-16B checking all three boxes for causation. Dr. Alexander does not refer to any psychological testing or objective tests, which he performed to diagnose the applicant with depression, or an aggravation of her preexisting condition beyond its normal progression.

Dr. Davison noted the applicant's examination in July 2000 was entirely normal. Dr. Davison did not find any symptoms of sufficient magnitude to warrant a psychiatric diagnosis. Dr. Davison stated he performed four psychological tests on the applicant all of which were within normal limits, and did not reveal any psychiatric problems. Dr. Davison noted the applicant's thought process was entirely normal, and there was no hint of looseness of association and she denied suicidal, homicidal or delusional thinking, and there was no hint of auditory, visual, olfactory or sensory hallucinations.

The commission credits Dr. Davison's assessment. The applicant worked in proximity with Ms. Gee over many many years, and related two incidents in which she had confrontations with Ms. Gee. The applicant never requested to be removed from working with Ms. Gee, and six years passed between the initial incident in 1994 and May 2000. Although the applicant clearly suffered a reaction to the stress of the situation on May 11, 2000, when she developed hives, the commission finds that overall the medical evidence does not establish the applicant suffered a non-traumatic mental injury, as a result of the work incident on May 11, 2000. The applicant had preexisting depression and anxiety in late 1999 and January 2000, which were similar to the subjective complaints the applicant exhibited after the work incident in May 2000. Based on Dr. Davison's report, as well as the applicant's history of similar symptoms prior to the work incident, the commission finds that the evidence was sufficient to raise a legitimate doubt the applicant suffered a non-traumatic mental injury, as a result of the work incident on May 11, 2000. Therefore, the applicant's claim for a work-related non-traumatic mental injury must be dismissed.

Dated and mailed August 9, 2002
kuechde . wrr : 175 : 8   ND § 3.41

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

cc: 
Attorney Steven G. Kmiec
Attorney Daniel L. Zitzer

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