KIM R KESS, Applicant

MILWAUKEE TRANSPORT SERVICES INC, Employer

MILWAUKEE TRANSPORT SERVICES INC, Insurer

The self-insured employer submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on July 1, 2004. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are the nature and extent of disability and liability for medical expense attributable to a conceded mental injury, which arose out of and incidental to the LIRC incident occurring on February 22, 2003.

The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's Findings and Interlocutory Order, except as herewith modified:

The applicant was subjected to unusual stress when she reasonably concluded that she had been shot at while driving the employer's bus on February 22, 2003. The fact that the incident may have involved only a pellet gun, or possibly only a BB gun, does not change the fact that she reasonably believed she had been shot at while driving the bus. Being shot at with any weapon is not an everyday occurrence.

Dr. N. Timothy Lynch evaluated the applicant in April 2003. He opined that the work incident temporarily aggravated the applicant's underlying conditions of depression, dysthymia, and anxiety. He further opined that the applicant had reached a healing plateau from this temporary mental injury by April 16, 2003, and that her ongoing psychological condition was related to marital distress, as well as generalized anxiety related to other unresolved trauma from her personal life. He also indicated in testimony that he believed the applicant had a 'post-traumatic type symptomatology related to other conditions.'

Dr. Drapes' opinion that the work incident caused post-traumatic stress syndrome is accepted as credible. In his hearing testimony, even Dr. Lynch conceded that he could not say that no part of the applicant's current psychological condition was attributable to the work incident. He believed the applicant's emotional responses on the post-traumatic stress scale were 'far more preponderant' with respect to the applicant's personal stressors than with respect to the work incident. However, he acknowledged that the great majority of the applicant's therapy with Dr. Drapes involved discussion of the work incident. Dr. Lynch would only state that he found this fact 'interesting,' but it is clearly a fact that supports Dr. Drapes' opinion.

Dr. Drapes credibly opined that as a result of the work injury, the applicant was temporarily totally disabled between April 29, 2003 and April 14, 2004 (a period of 50 weeks and 2 days yielding total compensation in the amount of $26,859.88). Dr. Drapes indicated the applicant is capable of returning to employment that does not involve driving a bus, but also indicated that additional psychotherapy may be needed. Accordingly, this order will be left interlocutory with respect to additional disability and/or psychological treatment for periods subsequent to the date of hearing (May 12, 2004).

The rest and remainder of the administrative law judge's Findings and Interlocutory Order are affirmed and reiterated as is set forth herein.

NOW, THEREFORE, this

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

David B. Falstad, Commissioner (dissenting):

The applicant has experienced an unfortunate set of circumstances in her personal life including sexual assault by a relative when she was young, assault at gunpoint by a former husband, separation from her husband approximately one month prior to the work incident, and sexual assault of her 12-year-old daughter resulting in the birth of a granddaughter for whom the applicant acts as guardian and caregiver. When these stressors are measured against the single incident of someone shooting a pellet gun or BB gun at her bus while she drove it through a bad neighborhood, it is evident that Dr. Lynch's opinion is credible.

Dr. Lynch's examination confirmed that the applicant became tearful and upset when recounting each of the above incidents. He demonstrated the even- handedness of his opinion by acknowledging that the applicant also responded with tears and distress when describing the work incident, but credibly explained that the emotion she attached to that incident did not constitute an ongoing psychological injury. He noted that she had no startle response or other typical symptoms of post-traumatic stress disorder associated with the work incident, and that while the incident did result in a temporary anxiety reaction, her ongoing psychological symptoms were related to the stress of her failing marriage, the situation with her daughter and granddaughter, and generalized anxiety related to prior unresolved trauma. The applicant may have spent the majority of her therapy time with Dr. Drapes discussing the work incident, but she knows that she must keep that incident at the forefront in order to continue receiving worker's compensation. Given the fact that the damage to the window of the bus the applicant was driving was minor, and the fact that the applicant conceded that rocks and other objects are routinely thrown at buses, it is simply not credible that this incident was so traumatic as to have resulted in post-traumatic stress disorder.

Fortunately, the majority's decision does not address the issue of permanency, because it is found that the applicant continues to be temporarily totally disabled up to the date of hearing. Hopefully, the applicant will continue to improve in her ability to cope with what I believe are her preexisting emotional problems, and return to work, as I am quite certain she will be able to do.

/s/ David B. Falstad, Commissioner

cc:
Attorney Israel Ramon
Attorney Peter M. Silver

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