Opinion
BOARD NO. 08015687
Filed: June 25, 1996
REVIEWING BOARD DECISION (Judges Wilson, Fischel and McCarthy)
APPEARANCES
Timothy J. Lane, Jr., Esq., for the employee at hearing
Kathleen Walczak, pro se, on brief
Phinorice J. Boldin, Esq., for the self-insurer at hearing
Lauren F. Daher, Esq., for the self-insurer on appeal
The self-insurer appeals from the decision of the administrative judge awarding weekly benefits for total incapacity pursuant to G.L.c. 152, § 34. We agree with the insurer's contention that the case must be remanded to remedy an incomplete analysis under § 1 (7A).
The employee, a vocational rehabilitation counselor, worked for the Massachusetts Rehabilitation Commission from 1974 until she left work on August 31, 1987. She was initially assigned to the Lawrence area office. In 1979 she was transferred to the Lowell office and assigned a SSI/SSDI case load that included clients with physical disabilities, mental and drug problems, as well as abused and homeless persons. The administrative judge recites that in 1979 the employee began experiencing difficulty with her supervisor and experienced problems with various agencies with which she had dealings. The judge found she became less effective due to what she described as a cumbersome management process. The judge recited her testimony that a client was threatening toward her and that she felt some of her clients were not cooperating with programs she had set up for them. She began to feel depressed, anxious and stressed. Eventually she took three weeks of vacation in August 1987 and has not returned to work since. (Dec. 3-4).
The self-insurer did not accept this case. A conference was held in 1988 and a denial of the employee's claim for benefits for a mental or emotional injury was issued. The employee appealed the conference order and a hearing de novo was held in front of the same administrative judge. The judge issued a decision denying the claim and the employee appealed to the reviewing board. The reviewing board recommitted the case for further subsidiary findings on the employee's work history and conclusions in accordance with the legal standard under § 1 (7A). See Walczak v. Mass. Rehabilitation Commission, 4 Mass. Workers' Comp. Rep. 303 (1990). On recommittal, the administrative judge ordered the employee to undergo an impartial psychiatric examination pursuant to G.L.c. 152, § 11A. In his second decision, which is the subject of this appeal, the administrative judge made the following general findings:
At the time of recommittal to the administrative judge, G.L.c. 152, § 11A provided in relevant part:
"(2) When any claim or complaint dealing with incapacity benefits for an alleged mental or emotional disability is forwarded to the division of dispute resolution, the administrative judge may appoint an impartial physician from the appropriate roster to examine the employee and make a report. The report of the impartial physician in such a case shall, where feasible, contain a determination by such physician of whether or not a mental or emotional disability exists, or whether or not any such disability is total or partial and permanent or temporary, and of whether or not any such disability is of a kind whose significant contributing cause is likely to have been a work-related event or series of events. The determination by an impartial physician of the existence or nonexistence of a temporary or permanent, partial or total disability shall be prima facie evidence of the existence or nonexistence, as the case may be, of such a condition, in any subsequent proceeding. Each party shall have the right to engage a physician to appear, or be deposed, for the purpose of rebutting the report of the impartial physician."
I find that the employee has sustained a personal injury arising out of and in the course of employment.
I find and adopt in part the medical opinion of Dr. Malamud and Dr. Dessain that a series of events relating to her employment as testified to by the Employee including the event where she was threatened by a client were a significant contributing cause to her emotional disability.
The self-insurer asserts three errors. It first argues that the judge erred in concluding that the incident during which a client threatened the employee contributed significantly to her emotional disability, where there was no medical testimony in the record which, to a reasonable degree of medical certainty, related the employee's medical disability to that incident. The insurer also challenges the decision on the bases of the absence of subsidiary findings on both the issue of wear and tear and the bona fide personnel action exclusion under § 1 (7A).
We look to Robinson's Case, 416 Mass. 454 (1993), as the definitive guide to the analysis a judge must undertake in a mental or emotional injury case under § 1 (7A) as formerly constituted. The burden is on the employee to demonstrate that "a significant contributing cause of the disability was an event or events occurring within the employment." Id. at 459. The emotional disability need not result from an unusual and objectively stressful or traumatic event. Id., citing Kelly's Case, 394 Mass. 684, 687 (1985). If the emotional impairment arises out of a bona fide personnel action, there is no liability. Id.
At the time of the claimed August 31, 1987 injury, G.L.c. 152, § 1 (7A), as amended through St. 1985, c. 572, § 11 and St. 1986, c. 662, § 6 provided in relevant part:
"Personal injuries shall include mental or emotional disabilities only where a significant contributing cause of such disability in [sic] an event or series of events occurring within the employment. 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 personal injury within the meaning of this chapter." (emphasis supplied).
It is important to bear in mind that Section 14 of St. 1991, c. 398, narrowed liability for mental or emotional injury by substituting the words "the predominant" for "a significant." By St. 1991, c. 398, § 106, the amendment was deemed substantive and thus does not apply in this case.
The task for the judge, then, is to first determine whether there was an event or series of events "`attributable to the `nature, conditions, obligations or incidents of employment; in other words, [to] employment looked at in any of its aspects.''" Id. at 460, quoting Zerofski's Case, 385 Mass. 590, 592 (1982), in turn quoting Caswell's Case, 305 Mass. 500, 502 (1940). This requires clear and precise findings of fact on what event or series of events the judge finds occurred, rather than statements of what witnesses testified.
If the judge finds such event or events, he must then make findings as to whether any "specific and identifiable events occurring within the employment were a significant cause of her disability." Proof of such causal relationship between the injury and the disability must be based on expert medical testimony, which may be considered in conjunction with lay evidence. SeeJosi's Case, 324 Mass. 415, 418 (1949). The judge based his finding of causal relationship on the opinions of Dr. Dessain and Dr. Malamud, both of which he adopted. Dr. Dessain, however, testified in his deposition that not only could he not say which incident triggered the employee's present condition, but that it would be presumptuous and unfair for him to do so. (Dep. 41.) Dr. Malamud's testimony is bereft of any mention of the threatening incident.
On remand, once the judge has made precise findings on what event or events occurred, he should then revisit the medical and lay testimony to determine whether there is a basis for concluding that an event or events were a significant contributing cause of emotional disability.
Only upon a finding that a work event or series of events were a significant contributing cause of mental or emotional impairment must the judge then go on to make findings of whether the "disability arose principally out of a bona fide, personnel action including a transfer, promotion, demotion, or termination[.]" § 1 (7A). There is no liability if the event or events are deemed a bona fide personnel action, in the absence of intentional infliction of emotional harm. The decision at bar omitted this segment of the analysis.
As a final matter, the self-insurer avers that the judge erred in failing to make subsidiary findings as to "wear and tear" when the medical evidence revealed that the employee's condition developed over a number of years. The concept of wear and tear was reviewed in Zerofski's Case, 385 Mass. 590 (1982), where the Supreme Judicial Court restated the range of harm covered by the Act and held that an injury arising from an identifiable condition that is common or necessary to all or a great many occupations is wear and tear and, therefore, is not a compensable personal injury pursuant to G.L.c. 152 Notwithstanding the Zerofski's Case exposition on the range of harm covered by the Act, we think that the clear language of § 1 (7A), which was amended subsequent toZerofski's Case, limits recovery to only those cases where "asignificant contributing cause of such disability is an event or series of events occurring within the employment." § 1 (7A) (emphasis supplied). The two pronged test set forth in Zerofski's Case, namely, whether the injury was caused by 1) a specific incident or series of events at work, or 2) an identifiable condition of work that is not common and necessary to all or a great many occupations rather than wear and tear, is therefore not applicable to a determination of compensable emotional injury as defined by § 1 (7A).
To summarize, compensation may be ordered for a mental or emotional disability under § 1 (7A) only where 1) a significant contributing cause of the disability 2) is an event or series of events occurring within employment 3) that is not a bona fide, personnel action, or 4) is the intentional infliction of emotional harm in a bona fide, personnel action.
The case is recommitted to the administrative judge for further findings in accordance with this decision.
So ordered.
________________________ Sara Holmes Wilson Administrative Law Judge
________________________ Carolynn N. Fischel Administrative Law Judge
________________________ William A. McCarthy Administrative Law Judge
Filed: June 25, 1996