Opinion
BOARD No. 62060-92
Filed: March 12, 1998
REVIEWING BOARD DECISION
(Judges Fischel, Levine and Wilson).
APPEARANCES
Gerard L. Pellegrini, Esq., for the employee.
Frederica H. McCarthy, Esq., for the insurer.
The employee appeals from a decision in which an administrative judge denied and dismissed her claim for benefits based on allegations of a work-related mental injury which caused her to become incapacitated in November 1992. The employee contends that the judge failed to assess the evidence adduced at hearing of a series of events at work that caused her mental incapacity. Instead, the judge limited his analysis to the employee's termination, which he found exempt from coverage of the Act as a bona fide personnel action under G.L.c. 152, § 1 (7A). We agree that the judge's findings inadequately address the employee's claim, and therefore recommit the case.
Chestnut Knoll, the employer, was a "life care" facility where residents paid fees and were then entitled to room, board and medical care for life. (Dec. 767.) Prior to 1986 Chestnut Knoll was managed by a volunteer board of managers, but a consultant hired in 1986 advised the board that Chestnut Knoll would be insolvent by 1994 if changes were not made. Id. One of the changes recommended was the hiring of an executive director. Id. In 1986 the employee was hired as executive director to manage the facility. Id. The board of managers then became a board of directors. Id.
In 1991, the first of a series of incidents occurred which ultimately led to the employee's termination from her employment in November 1992. (Dec. 768.) The incident involved the supervisor of buildings and grounds, whom the employee found to be insubordinate on many occasions. Id. An example was his failure to correct electrical hazards despite orders from the employee to do so. Id. These problems lasted more than a year, and on November 1, 1991 the employee fired the supervisor. Id.
From the facts found by the judge, there was a meeting on November 10, 1992 at which her resignation was sought, followed by the letter of termination which was sent on November 16, 1992.
About that time the employee noticed an increase in direct communication by the board of directors with her staff. (Dec. 769.) Matters that should have been referred by the board to her as executive director were instead taken directly from the board members to staff. Id. The employee found this to be quite troubling. Id. She felt this undermined her authority, and encouraged more staff insubordination. Id. It was evident that the board at times reverted back to their past practice as a board of managers. Id.
The board also brought board work to the employee's secretary without first asking permission of the employee, a practice which the secretary complained about to the employee. (Dec. 769-770.) The employee felt this practice created stress for her because it interfered with the smooth operation of the facility and obscured the chain of command. (Dec. 770.) Time after time the board interacted directly with the staff, to the extreme annoyance of the employee. Id.
Meanwhile, the employee had trouble with the new supervisor of buildings and grounds, whom she accused of falsifying fire drill records by claiming that drills had taken place when they had not. Id. The supervisor also allowed Chestnut Knoll's German Shepard dog to roam the neighborhood unrestrained, a practice about which the employee expressed concern and sought to change. (Dec. 770-771.) The supervisor, encouraged by the board's continuing direct interaction with him, became more arrogant, and would step outside the chain of command. (Dec. 770.) His antagonism to the employee and increased insubordination had a ripple effect on the staff, increasing tensions. (Dec. 771.)
When the new supervisor quit his job on August 21, 1992, the board of directors decided to investigate the resignation without seeking the employee's input. Id. The employee felt demeaned by the board's apparent lack of confidence in her. Id.
Another incident occurred at a picnic in August 1992. (Dec. 772.) It was the custom at Chestnut Knoll to ring chimes to inform the residents that food was ready. Id. The employee was speaking to one of the residents when a young dietary aide came up behind her and rang the chimes. Id. The employee was startled.Id. The chimes made it impossible to be heard. Id. The employee put her hand on the aide's shoulder, and when she could be heard told her to have more courtesy. Id.
The parents of the dietary aide filed an assault complaint with the police and wrote a letter of complaint to the board. Id. The incident prompted the board of directors to demand that the employee write a letter of apology to the aide's parents, even though the employee contended that she had done absolutely nothing wrong, and no hearing was held to air the differing versions of the events. (Dec. 773.) The employee was demeaned by the incident and the board's handling of the affair. Id.
The employee had problems with the board of directors and personnel committee in several other areas, including hiring, the budget, record keeping, and reporting of injuries. (Dec. 774-776.) Finally, with relations between the employee and the board of directors disintegrating, the board excluded the employee from a decision making committee and informed her on September 25, 1992 that the board had decided to hire an independent consultant to review the employer's governance and operations. (Dec. 776-777.) This decision to hire a consultant, without her input, created a stressful situation for the employee. (Dec. 777.)
On November 6, 1992, in the presence of various members of her staff, the consultant had harsh words for the employee's job performance. (Dec. 777-778.) The employee was upset and felt the consultant had acted inappropriately. (Dec. 779.)
On November 10, 1992 the employee was asked to attend a meeting with some members of the board of directors at the office of Chestnut Knoll's law firm. (Dec. 779-780.) The vice president of the board asked for the employee's resignation. (Dec. 780.) The employee asked for an explanation. Id. The vice president said he did not have an explanation but that one would be sent to her by mail. Id.
After the meeting, the employee cried and felt betrayed. (Dec. 781.) By letter sent on November 16, 1992 the employee was fired. (Dec. 780.) Shortly thereafter the employee sought psychiatric care, feeling that she had been brutalized by the board of directors. (Dec. 781.) She had never received psychiatric or psychological treatment at any time prior to that time. Id.
The insurer resisted her claim for workers' compensation benefits for her mental injury. (Dec. 761.) The employee was examined by an impartial medical examiner, a psychiatrist, who opined that the employee was temporarily and totally emotionally disabled. (Dec. 781.)
It was the opinion of the § 11A medical examiner that the employee suffered from post traumatic stress disorder causally related by history to the events which she described to him as occurring at work. (Impartial Medical Report, Employee's Ex. 2.) The judge denied the employee's claim on the basis that her termination was a bona fide personnel action within the meaning of the § 1 (7A) exclusion from compensability. (Dec. 781.) The judge concluded:
G.L.c. 152, § 1 (7A) provides, in pertinent part:
No mental or emotional disability arising principally out of a bona fide, personnel action including a transfer, promotion, demotion, or termination except such action which is the intentional infliction of emotional harm shall be deemed to be a personal injury within the meaning of this chapter.
I find that the employee suffered a psychiatric injury as a result of her termination as executive director of Chestnut Knoll. However, the termination which caused the injury was a bona fide personnel action within the meaning of § 1 (7A), and therefore is not compensable.
(Dec. 786-787.)
The employee argues on appeal that the judge failed to address a component of her claim for benefits that was independent of the termination. The employee points to the exception to the § 26 definition of a "personal injury", within the meaning of the Act:
General Laws c. 152, § 26 provides, in pertinent part:
If an employee . . . receives a personal injury arising out of and in the course of his employment . . . he shall be paid compensation . . . .
Personal injuries shall include mental or emotional disabilities only where the predominant contributing cause of such disability is an event or series of events occurring within any employment.
G.L.c. 152, § 1 (7A) (St. 1991, c. 398, § 13). The employee claims error in the judge's omission to address whether her claim makes out a "series of events" at work that constituted a "predominant contributing cause" of her mental disability. Because our review of the record indicates that the impartial medical examiner gave an opinion as to causal relationship between such a series of events and the employee's mental state — independent of her termination from employment — recommittal is appropriate.
The impartial examiner gave his causal relation opinion in answering the following hypothetical questions based on the events leading up to the termination:
Q: Doctor, with reference to the history that you received from this patient with reference to the factors that have been discussed, with reference to the incident with the individual with the electrical work, with reference to the incident with the chimes, where the young lady rang the chimes behind her, and with reference to the undercutting of her authority, were these factors that led to the stress disorder from which she suffered?
The judge did not rule on the objections of counsel at the deposition.
A: I believe so.
Q: [A]ssuming, Doctor, that these incidents, for example, with reference to the chimes incident, assuming that this incident that as a result of it, that without any hearing or without Mrs. Golec being allowing [sic] the opportunity to give her opinion as to what had happened but that in fact even after a Mrs. Peck had examined the incident and assured Mrs. Golec that the facts were as she stated that she was required to send a letter of apology to this young lady or the family at a time when there was a threat of criminal complaint for assault, that she was forced to send this letter of apology by the board of directors, that she was forced to do it under the supervision of the board's lawyer who tried to place words into the letter which she would not accept, that she was required to obtain counsel to assist her in framing a letter, that this continued on for a period of time of almost two months before she gave in and sent a letter that was satisfactory to the board of trustees; Doctor, is that the type of stressful situation that would have produced the stress disorder which you found?
[Objection.]
A: I believe it would contribute to it.
. . .
Q: Let's assume, Doctor, also that after she had sent the letter of apology in . . . the matter of the chimes, that she received a letter from Mrs. Peck which was Exhibit 12 in the case in which Mrs. Golec was advised that they were going to hire an independent consultant to help bring the parties together; and that in the letter it specifically states that he was going to be asked to look into the matter of the alleged assault, being the Grasetti matter and also the resignation of the individual who was not conducting the fire drills required by state law; assuming further that after this fellow was hired that in a meeting very shortly after being hired that he abused Mrs. Golec and condemned her in front of her subordinates, her staff, that she was criticized by this consultant, do you have an opinion as to whether or not that type of activity would effect and cause the type of disorder which you diagnosed?
[Objection.]
A: Yes, I believe it would.
Q: Doctor, based upon the information that you've received here this morning, is it still your opinion that Mrs. Golec suffers from a traumatic [sic]?
A: Post-traumatic stress disorder.
Q: Post traumatic stress disorder as a result of her being undercut at her place of employment and the factors which we've discussed here about the various incidents that occurred?
A: I believe so.
(Impartial Dep. 38-41.)
While the judge properly sought to apply the provisions of § 1 (7A), he limited his analysis to the fact of termination. He failed to do the same for the incidents he found to have occurred leading up to the termination. These multiple events were relied upon by the § 11A expert in forming his expert opinion. Where a case presents both stressful events and bona fide employer actions, each must be assessed independently of the other under the statutory criteria. Beckett v. Cummings Alden, Inc., 10 Mass. Workers' Comp. Rep. 641, 644 (1996).
On recommittal, the judge should make specific findings on whether: (1) the incidents were a "series of events" that (2) constituted a predominant contributing cause of the employee's disability, which (3) were not excluded from compensability as bona fide personnel actions, or (4) were intentionally inflicted emotional harm in the guise of a bona fide personnel action. Id. at 644; G.L.c. 152, § 1 (7A); Walczak v. Massachusetts Rehabilitation Comm'n, 10 Mass. Workers' Comp. Rep. 539, 514-542 (1996).
The case is recommitted. So ordered.
______________________________ Carolynn N. Fischel Administrative Law Judge
______________________________ Frederick E. Levine Administrative Law Judge
______________________________ Sara Holmes Wilson Administrative Law Judge