Opinion
I.C. NO. 963599.
Filed 6 October 2005.
This matter was reviewed by the Full Commission on June 8, 2005 upon the appeal of plaintiff and defendant from an Opinion and Award filed on September 24, 2004 by Deputy Commissioner George T. Glenn who initially heard this matter on October 14, 2003 in Winston Salem, North Carolina.
Plaintiff: Elliot, Pishko, Gelbin Morgan, P.A., Attorneys, Winston-Salem, North Carolina; J. Griffin Morgan, Counsel of Record.
Defendants: Teague, Campbell, Dennis Gorham, Attorneys, Raleigh, North Carolina; George H. Pender, Counsel of Record.
***********
The undersigned have reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Glenn and the briefs and arguments of the parties. The appealing parties have not shown good ground to reconsider the evidence, receive further evidence, rehear the parties or their representatives, or amend the Opinion and Award.
***********
The Full Commission finds as a fact and concludes as matters of law the following, which were entered into by the parties as:
STIPULATIONS
1. All parties are properly before the North Carolina Industrial Commission and the North Carolina Industrial Commission has jurisdiction of the parties and of the subject matter. The parties are subject to and bound by the provisions of the North Carolina Workers' Compensation Act.
2. An employment relationship existed between plaintiff employee and defendant employer on March 18, 1999, and at all times relevant herein.
3. That employer was an approved self-insured and Gallagher-Bassett Services, Inc. was the servicing agent at all times relevant herein.
4. All of plaintiff's medical records with respect to this claim are admitted into evidence.
5. All discovery requests and responses filed by the parties are admitted into evidence.
6. Plaintiff's compensation rate is $560.00, the maximum rate for 1999.
7. The issues to be determined from this hearing are as follows:
a) Whether plaintiff sustained an injury by accident or developed an occupational disease while in the course and scope of his employment with defendant-employer?
b) If so, what, if any, benefits is plaintiff entitled to receive under the North Carolina Workers' Compensation Act?
***********
Based upon all of the competent evidence of record the Full Commission makes the following:
FINDINGS OF FACT
1. Plaintiff's date of birth is January 15, 1942, and he began working for Schlitz Can Company in Winston-Salem, North Carolina in 1995. He operated a can production machine for three years and was promoted to a line supervisor overseeing can production lines in 1979. Plaintiff held this position until 1990, when he was promoted to Assistant Production Manager.
2. In the early 1990s, American National Can (hereinafter "ANC") purchased the Winston-Salem plant from Schlitz Can Company. ANC began a downsizing program, and the plaintiff's position as Assistant Production Manager was eliminated. Plaintiff was offered, and accepted in 1993, his former line supervisor management position. Plaintiff worked as a line supervisor overseeing can production until he stopped working for ANC on March 18, 1999.
3. Since 1975, plaintiff worked a swing shift from 7:00 a.m. to 7:00 p.m. The swing shift required plaintiff to work one 12-hour shift for three days. After working three shifts for three consecutive days, he would be off four days. The following week, plaintiff would work four 12-hour shifts, then would be off three consecutive days. Plaintiff testified that he averaged working 13 to 14 hours each shift. Plaintiff averaged working between 45 and 49 hours each week. Plaintiff also confirmed that he was not required to work 14 days each month due to the unique nature of the swing shift.
4. Plaintiff and other members of plant management were required to attend weekly production meetings. The typical meeting lasted one to two hours but could last longer. Plaintiff was required to attend the production management meeting even if he was scheduled to be off that day. Plaintiff was a salaried line supervisor manager and was not paid overtime to attend the meetings. The primary topics addressed at the production management meetings were production and labor problems. Plaintiff and other former line supervisors testified the general tone of the production meetings was negative as the primary issues being addressed were production and labor problems.
5. Plaintiff testified that before 1993 he enjoyed his job at the Winston-Salem can plant. However, after being downsized by ANC and accepting his former position as line supervisor in 1993, he testified his job duties significantly changed. He testified the 1993 layoffs/downsizing negatively impacted his ability to do his job. Plaintiff and other former line supervisors testified that more job duties were placed on the line supervisor due to other management positions being eliminated. Plaintiff testified that it was harder to do his job because there was more pressure to work with less people. Plaintiff testified that his ability to do his job continued to change as more job tasks were given to him due to cutbacks in the work force.
6. ANC downsized again in 1996 and eliminated another line supervisor position, shop supervisor and quality control positions. Plaintiff testified that it became increasingly harder to do his job because he no longer had the administrative support these positions previously provided him. Plaintiff testified that he felt as if he had twice as much to do following the 1996 downsizing.
7. Plaintiff also testified that during this period it became difficult to discipline the employees he was supervising. This was due to issues related to the union contract. Plaintiff testified that the union issues caused him additional job stress as he was not receiving support from management.
8. In 1998, plaintiff testified that ANC hired management/time consultants to evaluate the plant operations in order to increase productivity. According to plaintiff, the consultants recommended ANC eliminate additional management and hourly employees. This placed additional job demands on the line supervisor's position and caused plaintiff additional stress as he felt he was not being given added support to properly do his job.
9. Four former ANC employees testified on behalf of plaintiff. Bob Martin, Tom Woods, Neal Dan and James Fant all held the line supervisor position at various times between 1993 and 1999. They confirmed the line supervisor management position became harder to perform due to ANC's downsizing of staff. All four former line supervisors confirmed plaintiff's testimony that the position became increasingly more stressful. Mr. Martin, Mr. Woods and Mr. Dan were offered severance packages and elected to take early retirement. These three former line supervisors testified that the increasing levels of stress due to an increase in job duties was the primary reason they elected to take early retirement. All three are currently working in positions for other companies they described as having significantly less workplace stress. Mr. Fant is currently on long term disability due to conditions caused by a stroke.
10. Plaintiff identified in discovery and testified at his hearing the following work conditions at ANC caused his work-related stress: (1) cutbacks in workforce requiring him to take on a heavier workload; (2) new job duties requiring him to work 13 to 14 hours per day; (3) being required to attend meetings on scheduled days off; (4) supervisors' demands to handle a constantly increasing workload while at the same time providing no support. Plaintiff was unable to identify any additional situations at work that caused him stress other than the items identified above.
11. Plaintiff testified that his employment was the most stressful the 8 to 10 months before he left his employment in March 1999. He stated the management changes required him to work harder, be more productive with less help and incur changes in the manner in which he performed his job.
12. Plaintiff sought psychiatric care from Dr. McCauley in March 1999. Dr. McCauley noted in his initial interview on March 19, 1999, the following medical history provided to him by plaintiff: "I am stressed from my job, from the physical and mental demands from the new owners, which have been getting worse for the past eight to ten months. As a result, I hate my peers and I feel like bashing them with arguments and I cannot forget what's been happening for more than a year."
13. Dr. McCauley also documented the following in his March 19, 1999 medical record: "He [plaintiff] attributed his symptoms to the amount of demands at work with inadequate staff assistance. As a result, he stated he was having to rush and work 13 hours a day, 3 to 4 days a week and having to attend compulsory meetings without pay, due to his having been on a salary. He described his other supervisors as being distressed and his immediate supervisors giving him negative feedback with increasing expectations. He stated the stressors have been this way for the past 13 to 14 months."
14. Plaintiff also described the job stressors to Dr. Elliott. Dr. Elliott was the IME physician selected by the Industrial Commission nurse after the parties were unable to agree upon a psychiatrist. Dr. Elliott's IME report states the following history given to him by plaintiff: "He [plaintiff] presents reporting that he left work at the American Can Plant on March 18, 1999. He reports he began having difficulties between eighteen months to two years prior to that date. In the 1½ to 2 years prior to his leaving in March 1999, he reports that things became significantly more stressful on his job. He states that time check consultants came in and began cutting back on workers, demanding higher productivity."
15. Three physicians and one psychologist testified in this matter: Dr. Artigues is a forensic psychiatrist selected by defendants to perform an IME. Dr. Artigues is board-certified in general and forensic psychiatry and is in private practice in Cary, North Carolina, and teaches at the Duke University Medical School. Dr. Artigues' IME evaluation included meeting with plaintiff for over two hours, listening to a complete set of the workers' compensation hearing tapes, reviewing plaintiff's medical records, Dr. Elliott's IME report and interviewing plaintiff's wife.
16. Dr. Artigues could not render an opinion that plaintiff was suffering from depression. Dr. Artigues reviewed the list of plaintiff's depressive symptoms identified by Dr. McCauley in 1999. Dr. Artigues testified that plaintiff did not give a history of having a current depressed mood, crying, decreased appetite, sleep disorders, inability to experience pleasure or suicidal or homicidal thoughts. Dr. Artigues testified that plaintiff's current condition is that he is angry at his former employer. Dr. Artigues confirmed that plaintiff has no psychiatric symptoms until he is faced with dealing with his former situation at work. At that time, he becomes extremely angry. Dr. Artigues confirmed that anger is not a psychiatric diagnosis and is not identified in medical authorities as a psychiatric condition.
17. Dr. Artigues has treated approximately 100 patients in her private practice for job-related stress issues over the past three years. She confirmed that approximately half of these patients complained of job stress of a similar nature to those identified by plaintiff. Dr. Artigues said that plaintiff's situation in which he did not feel supported by supervisors, which he was asked to do more work in less time, and which he did not feel supported by his under-staff, and having to attend difficult and frustrating meetings, could happen in any workplace.
18. Dr. Artigues also stated that the list of job stressors and duties identified by plaintiff at the hearing and in discovery were not characteristic of and peculiar to his employment with ANC. Her expert opinions are based on her experience as a clinical psychiatrist who has and is currently treating patients with job-related stress issues. Dr. Artigues also stated that plaintiff was not at a greater risk of developing psychiatric issues when compared to the general public. Dr. Artigues testified that any worker has an increased risk who is working in a situation in which productivity demands are increasing and the number of people available to do that work is decreasing. The situation is not unique to ANC and can happen in any employment job or occupation.
19. Dr. Artigues also confirmed the three MSNBC business articles and the NISOH literature on stress provided to her by defendants and attached to her deposition confirmed her general ideas about the U.S. work force that she already had. She said the articles published by MSNBC and NISOH confirmed her belief that productivity demands for workers were increasing in spite of the fact that many corporations have layoffs, and that this results in people being expected to work harder and that job stress is on the rise as a result.
20. Plaintiff retained Jerry Noble, PhD, to perform an IME. Dr. Noble diagnosed plaintiff as being depressed and said that plaintiff's working conditions at ANC was a causal factor in plaintiff developing depression.
21. Dr. Noble also testified plaintiff's job at ANC exposed him to a greater risk of suffering from depression than members of the public generally. The basis of his opinion was the business management theory developed by Dr. Karasak in the 1970s. Based on the control-demand model, Dr. Noble felt that plaintiff's job at ANC placed high work demands upon him yet gave him a very low level of discretion in how he performed his job. Dr. Noble testified that any employee in any industry or profession that has demands at work coupled with low levels of discretion is at a greater risk of developing depression than the general public.
22. Dr. Noble also testified that he has treated employees who have had jobs that have high demands but low levels of discretion from every major industry group, including professionals, service and manufacturing industry employees. These jobs included insurance administrators, hospital administrators, informational systems employees, teachers and electricians. Dr. Noble confirmed that all these employees had the common denominator of having a high demand job with low level of discretion and were, therefore, at a greater risk of developing depression.
23. Dr. Noble did not identify specific factors unique to plaintiff's job that led to the development of plaintiff's psychological issues.
24. Dr. Elliott diagnosed plaintiff with depression and confirmed that plaintiff's working conditions at ANC were a significant contributing factor to plaintiff having developed depression.
25. Dr. Elliott testified that plaintiff was at a greater risk of developing depression due to the working conditions described to him by counsel for plaintiff. Dr. Elliott confirmed that the basis of his opinion was Dr. Karasak management theory which stated that any individual with a high demand/low level of job control was at a greater risk for stress in his or her job.
26. Dr. Elliott testified that all of the job stressors identified by plaintiff were not unusual or unique to his position at ANC. Dr. Elliott confirmed that the job stressors identified by plaintiff could exist in any job or profession. Dr. Elliott did not identify specific factors unique to plaintiff's job that led to the development of plaintiff's psychological issues.
27. Dr. McCauley, plaintiff's treating psychiatrist, testified and continued to maintain a diagnosis of depression. Dr. McCauley testified that the working conditions at ANC caused plaintiff's depression. Dr. McCauley said plaintiff was at a greater risk of developing depression due to the job stressors identified by plaintiff. However, Dr. McCauley did not identify specific factors unique to plaintiff's job that led to the development of plaintiff's psychological issues.
28. There is no competent evidence in the record to establish that plaintiff's working conditions at ANC exposed him to unique or peculiar job stressors to which the general public is not exposed. The greater weight of the evidence is that the job stressors plaintiff experienced at ANC can occur in any profession or industry. The working conditions which brought on plaintiff's increased level of stress are not characteristic of and peculiar to his line management supervisor position with ANC because these working conditions can occur in any industry, trade or profession.
***********
Based on the foregoing findings of fact, the Full Commission makes the following:
CONCLUSIONS OF LAW
1. Plaintiff's psychological issues are not due to causes and conditions characteristic of and peculiar to plaintiff's employment with defendant as a line supervisor; rather his psychological condition is an ordinary disease of life to which the general public, not so employed, is equally exposed. Plaintiff, therefore, has failed to prove that he sustained an occupational disease as a result of his employment with defendant-employer. N.C. Gen. Stat. § 97-53(13); see Lewis v. Duke University, 163 N.C. App. 408, 594 S.E.2d 100 (2004).
2. Plaintiff's claim for workers' compensation benefits should be denied.
***********
Based upon the foregoing findings of fact and conclusions of law, the Full Commission enters the following:
ORDER
1. Under the law, plaintiff's claim must be and is hereby denied.
2. Each side shall pay their own costs.
This the 10th day of August 2005.
S/_______________ DIANNE C. SELLERS COMMISSIONER
CONCURRING:
S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER
DISSENTING:
S/_____________ THOMAS J. BOLCH COMMISSIONER
Under appropriate circumstances, work-related depression or other mental illness may be a compensable occupational disease. See Jordan v. Central Piedmont Comm. College, 124 N.C.App. 112, 476 S.E.2d 410 (1996). However, the claimant must prove that the mental illness or injury was due to stresses or conditions different from those borne by the general public. See Woody v. Thomasville Upholstery, Inc., 355 N.C. 483, 562 S.E.2d 422 (2002) (adopting dissent in 146 N.C.App. 187, 202, 552 S.E.2d 202, 211 (2001)); and Lewis v. Duke University, 163 N.C. App. 408, 594 S.E.2d 100 (2004). Thus, the claimant must establish both that his psychological illness is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment and that it is not an ordinary disease of life to which the general public is equally exposed. Id.
The majority, in applying the above standard, found that plaintiff's mental conditions, including depression, were not causally related to his duties as a line supervisor for defendant-employer, and thus not occupational diseases. However, the majority has erred in ignoring the credible evidence of record establishing that plaintiff's mental conditions were a consequence of the high work demands placed upon plaintiff, coupled with a low level of discretion in performing his job. In finding that plaintiff has failed to prove that he sustained an occupational disease despite the credible evidence of record to the contrary, the majority has created a presumption that any type of mental injury causally related to typical work-related stress cannot be compensable no matter how great or severe that stress may be. The majority fails to consider that typical work-related stress can exceed a threshold in which it surpasses the normal level of work-related stress as borne by the general public.
The evidence of record shows that plaintiff was exposed to a high degree of stress that exceeded what one would term as typical work-related stress. Plaintiff's treating psychiatrist, Dr. McCauley, testified that plaintiff's working conditions caused plaintiff's depression, and further testified that plaintiff was at a greater risk of developing depression due to the job stressors identified by plaintiff. Moreover, Dr. Noble, who performed an independent medical examination (IME) of plaintiff, testified that plaintiff's working conditions were a causal factor in the development of plaintiff's depression, and further testified that plaintiff's job exposed him to a greater risk of suffering from depression than members of the general public. Despite this credible evidence of record, the majority gave greater weight to the testimony of Dr. Elliot, who also performed an IME of plaintiff, in finding that plaintiff's work-related stressors were not unique to his employment. It is well settled that "the evidence tending to support plaintiff's claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence." Doggett v. South Atl. Warehouse Co., 212 N.C. 599, 194 S.E. 111 (1937), cited with approval in Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998). In the present case, where the opinions of two distinguished medical experts are at odds, the testimony of the medical expert that supports plaintiff's position should be given greater weight so as to ensure that the evidence is viewed in the light most favorable to plaintiff. Id.
As the North Carolina Supreme Court stated in Johnson v. Asheville Hosiery, Co., 199 N.C. 38, 153 S.E. 591 (1930), the Worker's Compensation Act is to be liberally construed to effectuate the broad intent of the Act to provide compensation for employees sustaining an injury arising out of and in the course of the employment, and no technical or strained construction should be given to defeat this purpose. Id. Based on the majority's application of Lewis as it relates to N.C. Gen. Stat. § 97-53(13), the majority has erred in failing to award compensation to plaintiff, despite the credible evidence of record that it was work-related stress, and such stress alone, that caused plaintiff to develop his psychiatric conditions. This Commission cannot idly permit employers to subject employees to abnormal and severe levels of stress without recognizing that typical work-related stress can exceed a threshold in which it surpasses the normal level of work-related stress as borne by the general public. Although the Court of Appeals has continued to uphold Woody in cases such as Lewis, the intent of the Workers' Compensation Act will not be sustained until this Commission, the courts, or the General Assembly finds that injury or disease resulting from severe levels of stress in the workplace can be compensable when supported by credible evidence. For these reasons, I respectfully dissent.
This 22nd day of August 2005.
S/_____________ THOMAS J. BOLCH COMMISSIONER