Opinion
February 4, 1999
Appeal from the Workers' Compensation Board.
Claimant, a recovering alcoholic with a history of childhood physical, sexual and emotional abuse, began experiencing symptoms of anxiety and depression, as well as flashbacks to her own repressed memories of abuse, after working for approximately one year as an alcoholism counselor with Southern Erie. Clinical Services (hereinafter SECS). She commenced psychological counseling, was treated with various medications and engaged in regression therapy. During the following 2 1/2 years of therapy, claimant's work performance suffered significantly, requiring repeated admonitions with regard to her paperwork and case management. She ultimately resigned from her position in April 1991 upon learning that she would not be recommended for permanent status.
In May 1991, claimant filed a claim for workers' compensation benefits based upon mental illness. The Workers' Compensation Law Judge (hereinafter WCLJ) disallowed the claim, finding that she had not sustained an accident or occupational disease within the applicable law. Claimant thereafter appealed to a panel of the Workers' Compensation Board (hereinafter the Panel) which, upon its review of the record and conflicting testimony of psychiatric experts, referred the case for an opinion by an impartial specialist in psychiatry.
After hearing testimony from the impartial specialist, the Panel reversed the WCLJ's decision and restored the case to the calendar for an award. SECS and its workers' compensation administrator appealed the decision to this Court and simultaneously brought an application for review by the full Board. The Board thereafter rescinded the Panel's decision and referred the matter back to the Panel for further consideration. The Panel then reversed its prior decision and affirmed the decision of the WCLJ. Claimant appeals.
Contrary to claimant's contention, we do not find that Workers' Compensation Law § 23 Work. Comp. requires, as a condition precedent to the right for full Board review; a dissent in the Panel's decision. While a dissent would mandate full Board review upon request ( see, Matter of Compton v. Kenlu Cab Co., 147 A.D.2d 825, 826), where the Panel's decision is unanimous the determination to grant or deny such request becomes discretionary ( see, Matter of Lehsten v. NACM-Upstate N.Y., 236 A.D.2d 1, 4, lv granted 92 N.Y.2d 805; Matter of Compton v. Kenlu Cab Co., supra, at 826).
We further find claimant's reliance upon Matter of Field Delivery Serv. (Roberts) ( 66 N.Y.2d 516), to support the contention that the Panel's reversal of its prior decision in the absence of new evidence and without further explanation was improper, to be inapposite. Such case, instead, requires an agency to conform to its precedent in deciding other cases which share factual similarity ( see, id., at 520). It does not apply to the situation where the Board is expressly authorized, on full Board review, to rescind or otherwise modify a Panel decision ( see, Workers' Compensation Law §§ 23 Work. Comp., 123).
Reviewing, as we must, whether the Board's decision is supported by substantial evidence, when a contrary determination could result by the evidence presented ( see, Matter of Spoerl v. Armstrong Pumps, 251 A.D.2d 915, 916), we affirm. "`Mental injury precipitated solely by psychic trauma is compensable as a matter of law * * * when the circumstances constitute an "accident" within the meaning of the Workers' Compensation Law'" ( Matter of Velazquez v. Triborough Bridge Tunnel Auth., 156 A.D.2d 922, 923, quoting Matter of Haydel v. Sears, Roebuck Co., 106 A.D.2d 759, 760). While extended emotional stress may so constitute an accident, "[n]ot all mental injuries suffered on the job, however, are compensable * * * since the record in each case must be considered `in light of the common-sense viewpoint of the average [person]'" ( Matter of Velazquez v. Triborough Bridge Tunnel Auth., supra, at 923, quoting Matter of Wolfe v. Sibley, Lindsay Curr Co., 36 N.Y.2d 505, 511 [citation omitted]).
From such viewpoint, it can be gleaned that claimant had a significant history of childhood physical, sexual and emotional abuse and that the experts disagreed as to what event or events, work-related or otherwise, could have caused her to fail to properly perform her work-related functions. The impartial evaluator testified to the variety of triggers which could have activated the stress disorder now prevalent, which included claimant's relationship with a manic depressive male from 1990 to 1992, her failed marriage and her daughter's sudden marriage. His report indicated that claimant was aware that "a combination of factors" led her to leave SECS. SECS' expert testified, after reviewing medical and psychiatric evaluations and all previous testimony, that the regressive therapy undergone by claimant while still employed may have caused her disorder by creating a self-fulfilling prophecy. Such expert further opined that another probable cause was the pressure claimant felt from the paperwork demands of her position. Acknowledging claimant's testimony that her flashbacks were triggered by her counseling of clients, she also attributed her condition to SECS' move to a different office, its subsequent hiring of additional counselors and the imposition of a quality assurance program which impacted her paperwork demands. Since the weight to be given to these conflicting opinions, expert or otherwise, rests within the discretion of the Board, fully authorized to accept that which it finds most credible ( see, Matter of De Maio v. Rockford Plumbing Heating, 48 N.Y.2d 665, 666; Matter of Furch v. Bucci, 254 A.D.2d 642, 643), we cannot conclude that the decision that claimant did not suffer a work-related accident was unsupported by substantial evidence.
Upon these facts, we similarly conclude that claimant did not suffer a compensable occupational disease within the requirements of Matter of Hennige v. Fairview Fire Dist. ( 99 A.D.2d 158, 159). Accordingly, we affirm the decision of the Board in its entirety.
Cardona, P. J., Spain, Carpinello and Graffeo, JJ., concur.
Ordered that the decision is affirmed, without costs.