Opinion
BOARD No. 067845-86
Filed: August 29, 1997
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein and Smith)
APPEARANCES
Frederick T. Golder, Esq., for the employee.
John J. Maloney, Esq., for the insurer.
In its third appearance at the reviewing board, we have before us the latest denial of Donald Yates' claim that he suffered an industrial injury compensable under G.L.c. 152. We have twice previously recommitted this case. See Yates v. ASCAP, 6 Mass. Workers' Comp. Rep. 97 (1992) ("Yates I") and Yates v. ASCAP, 9 Mass. Workers' Comp. Rep. 550 (1995) ("Yates II"). Because the latest decision following a hearing de novo is also flawed, we reverse the decision in part, and once again recommit the case.
The judge who heard the case in 1986, and on recommittal 1992, had retired by the time the case went back for the third time in 1995.
Donald Yates filed a claim for workers' compensation benefits based on an emotional injury alleged to have occurred in part as a result of supervisory criticism and disciplinary action at work from November 1979 until his termination from ASCAP in July 1980. (Dec. 8-9.) The facts of the case have been set out in detail in the prior reviewing board decisions, so we need not repeat them here. Instead we proceed directly to such of the judge's findings as are pertinent to the discussion of the legal issues:
In a meeting on July 18, 1980 at the Colonnade Hotel . . . Mr. Knittel fired Mr. Yates in person, after which he "was absolutely numb." (Dec. 9.)
Mr. Yates sought no medical or psychiatric treatment after this termination until January 1981 when he began to see Dr. [William S.] Appleton again. (Dec. 10.)
After the employee was terminated from ASCAP . . . he moved to Las Vegas, Nevada, and took a position as a "crap dealer" at Sam's Town Casino From April 20, 1981 until December 10, 1981. (Dec. 7.)
I further find, based in part on Dr. Appleton's testimony, that the employee had poor work habits which prompted his superiors to take appropriate disciplinary action starting in November 1979 and culminating in his termination for cause in July 1980. I also find, based on Dr. Appleton's testimony, that those poor habits were the cause of Mr. Yates' problems at work, not the work itself. (Dec. 18.)
I find that [the] employee's pre-existing psychological condition and his ongoing family/marital problems, more likely than not, combined with his poor work habits and performance to cause the loss of his job with ASCAP. I find that such criticisms of performance and escalating disciplinary steps are common stresses found in the workplace in general and routinely experienced by workers and managers in any number of occupations. I further find that his firing was a bona fide personnel action by the employer and that this additional loss was merely another consequence of his pre-existing severe psychiatric condition, rather than the cause of his severe depression, and therefore, not a compensable industrial injury under the Statute. (Dec. 19-20.)
The judge adopted parts of the expert testimony of the employee's treating psychiatrist, Dr. Appleton, including the following:
Regarding the stress in Mr. Yates's life while he was treating him, Dr. Appleton stated: ". . . I think the loss of his job was the number 1 stress because of the pride that he took in it.["]
. . .
When asked about Mr. Yates' work habits, he stated: "Well, he had work habits that were problems. He was a person who worked against deadline, so he would have periods where he worked very hard and periods where he did very little. . . . He was a procrastinator and that was his problem, not the work problem. . . . He wasn't there daily to manage the office and the people in it, which I recommended that he do, and he did finally, and that helped, but when he wasn't there every day, the personnel I think had some unrest." Q: ". . . is it fair to say these were self-imposed problems because of his work habits rather than the work itself?" A: "Yes. It's not the work itself." (Dec. 14.)
. . .
I find the testimony of Dr. Appleton in this deposition to be credible and I specifically adopt his opinion in those areas quoted immediately above . . . . (Dec. 15-16.)
I adopt the medical opinion of Dr. William Appleton and find that the employee's severe depression was a pre-existing condition and had been exacerbated by family matters, rather than by a series of events at work. I find the claimed periods of disability are not causally related to Mr. Yates's employment with ASCAP. (Dec. 22.)
The judge denied and dismissed the employee's claim (Dec. 23), prompting his third visit to the reviewing board. We conclude that the judge's findings of fact and adoption of expert medical testimony, when matched with the correct legal standards that obtained at the time of this 1980 injury, lead inexorably to the conclusion that this employee suffered an emotional industrial injury within the meaning of the Act. We therefore reverse the judge's general finding that no industrial injury occurred.
This injury must be analyzed under the simple causation standard that applied to all personal injuries under the Act before the addition of the "significant contributing cause" limitation to emotional injuries as an amendment to § 1 (7A). See St. 1986, c. 662, § 6, made effective January 1, 1986. We have interpreted this provision to affect the substantial rights of litigants and therefore to have only prospective application.O'Brien v. Gillette Co., 11 Mass. Workers' Comp. Rep. ___ (April 9, 1997); Leak v. F.A. Bassett Printing Co., 4 Mass. Workers' Comp. Rep. 206, 211, n. 7 (1990); Yates II, supra at 511, n. 1. The determination of liability in this "as is" case of emotional injury, therefore, is merely whether the work events bore some causal relation to the claimed incapacity. Fitzgibbons's Case, 374 Mass. 633 (1978); Albanese's Case, 378 Mass. 14 (1979).
In Fitzgibbons's Case, 374 Mass. 633 (1978), the court first recognized the compensability of mental injuries caused by an event or events at work. The court concluded:
[T]he term "personal injury" also permits compensation in cases involving mental disorders or disabilities causally connected to mental trauma or shock arising "out of the employment looked at in any of its aspects."
Id. at 637-638, quoting Caswell's Case, 305 Mass. 500, 502 (1940) (emphasis added). A few years later the court applied theFitzgibbons rule in Kelly's Case, 394 Mass. 684 (1985), to hold that "an employee who suffers emotional disability as a result of layoff or transfer is entitled to workers' compensation." Id. at 689. The court reasoned:
"Our decisions placed injuries attributable to specific events at work within the business risks covered by the act, even when the employment does not expose employees to an unusual risk greater than that experienced by the general public." [Citations omitted.] Furthermore, it is settled law that an employer takes his employee "as is," that is, with whatever peculiar vulnerabilities to injury the employee may have, and that "an identifiable incident or strain need not be unusual or severe to support compensation if the particular employee succumbs to it. See, e.g., McManus's Case, 328 Mass. 171 (1951) (bending over caused hernia)." Zerofski's Case, supra at 593.
Id. at 687 (emphasis added). If a layoff can serve as the basis for an emotional work injury, the same must be true of a termination.
The adopted expert opinion of Dr. Appleton was that this causal connection was established. "Regarding the stress in Mr. Yates's life while he was treating him, Dr. Appleton stated: `. . . I think the loss of his job was the number 1 stress because of the pride that he took in it.'" (Dec. 14.) The conclusion that the judge drew from this opinion — that the doctor did not causally connect the work events to the employee's depression — is a mischaracterization of the doctor's testimony. While it is the judge's prerogative to credit or discredit the medical evidence adduced at hearing, he may not misconstrue the testimony. Ata v. KGR Inc., 10 Mass. Workers' Comp. Rep. 56, 57 (1996). Dr. Appleton simply did not state that the work events bore no causal relation to the employee's depression. On the contrary, the doctor testified at his deposition as follows:
Q: What was the cause of [the employee's] depression [in 1980]? . . .
A: Actually his whole life pretty much blew up. His job, he was very involved with his work. . . . Then he lost his job, then on top of it he lost his wife and his family, and pretty much all of his friends, so that he had virtually nothing left.
. . .
Q: With respect to Mr. Yates, what was the most significant stress in his life at that time [in 1980]?
A: I have to say that, I fully understand this is a workmen's comp thing, but I think the loss of his job was the number 1 stress because of the pride that he took in it. (Dep. 11-13.)
Q: And my last question, as a result of his being fired, he had no "new illness," did he?
A: Well, it was more severe, I think, but it wasn't new. (Dep. 79.)
Q: But again, doctor, being fired was only one of the elements in his depression?
A: Oh, yes, absolutely. (Dep. 83.)
The doctor's testimony makes out causal relationship as a matter of simple English: it was one of the "elements in [Yates's] depression." The judge's adoption of the doctor's opinion means that the employee sustained his burden of proving causal relation between the work events and his emotional disability.
The judge emphasized one sentence of the doctor's testimony stating that the employee's "work habits" caused the problems the employee experienced at work in 1979-1980: "I also find, based on Dr. Appleton's testimony, that those poor habits were the cause of Mr. Yates's problems at work, not the work itself." (Dec. 18.) The testimony upon which the finding is based is taken out of context by the judge. The doctor was addressing the question of whether the employee was having problems at work prior to November 1979, when the stressful work events commenced. (Dep. 28-29.) There is no claim for any prior period. Furthermore, the employee's poor work habits, even if they were associated with the time period in dispute, were part of his peculiar vulnerabilities to emotional stress that he brought to the employment — his "as is" nature. Barring the employer's defense of § 27 wilful misconduct on the basis of such poor work habits — which defense was not raised in this case, and realistically would not have been successful if so raised — the judge's reasoning patently contravenes the preeminent precept underlying the worker's compensation act: that it is a no-fault system.
Q: Was he having any problems in his job, in 1977 I'm talking about now?
A: Well, he had work habits that were problems. He was a person who worked against deadlines, so he would have periods where he worked very hard and periods where he did very little.
Q: Those would be his problems as distinguished from work problems, if I may distinguish that?
A: Yes, that's correct. He was a procrastinator and that was his problem, not the work problem.
Q: But in any event, from the time you first saw him up until sometime in 1979 or 1980, he was conducting these affairs of managing this office pretty well, other than the self-imposed problems?
A: Well, there was a problem in his managing the office, as i remember, and that was again mentioned in the other deposition, that he did a lot of his work at odd hours.
He wasn't there to daily manage the office and the people in it, which I recommended that he do, and he did finally, and that helped, but when he wasn't there every day, the personnel I think had some unrest
Q: But again, is it fair to say these were self-imposed problems because of his work habits rather than the work itself?
A: Yes. It's not the work itself.
(Dep. 28-29.)
The "chicken or the egg" theory that the judge posits — that the employee's pre-existing depression caused his problems at work, which were a consequence of his depression, not a cause of his further emotional illness, Dec. 20 — is an improper replacement of the doctor's expert opinion on causal relation with his own. Casey's Case, 348 Mass. 572, 574-575 (1965) (causal relation is a matter beyond common experience of ordinary laymen, and thus expert testimony is required). Once one factors in the adopted opinion of Dr. Appleton, the only result can be that the job, even if it was only one of many factors in the employee's depression, aggravated that pre-existing mental infirmity. This employee came to the workplace with a mental vulnerability, which is no different in kind from the employee who brings a compromised back to his heavy duty job. See Madden's Case, 222 Mass. 487, 493-496 (1916) (if event at or incident of work aggravates a preexisting health problem, liability attaches). The events at work became a factor in the employee's illness, and that is all that is needed for liability to attach. As the court in Kelly, supra, stated: "In none of those cases [establishing the compensability of emotional injuries stemming from work events] did we suggest that entitlement to workers' compensation for emotional disability requires proof of facts in addition to those required when the disability is only physical, and we discern no basis in G.L.c. 152 for such a requirement." Id. at 686.
The judge emphasized that he did not find the employee to be a credible witness, "as his testimony contained many inconsistencies, contradictions, and a significant degree of self-aggrandizement in his claimed abilities and achievements." (Dec. 16.) The judge cites to the employee's testimony regarding his wife's infidelity, his moving out of the marital home, and the alleged work events as examples. (Dec. 16-17.) As to the work events, the judge found at one point in the decision:
The central work-related issue in Mr. Yates's claim revolves around the period from November 1979, when he was confronted by [his supervisor] with an anonymous complaint letter from his office staff, and culminating with his formal termination on July [1]8, 1980 by the same individual. The employee has not submitted any documentary evidence for either of these two critical events, nor any independent, corroborating testimony that such events actually occurred. . . . Since I do not find his testimony credible, Mr. Yates has failed to meet his burden of proof in this element of his claim. (Dec. 17.)
This is a bewildering finding, since in every other reference to the disciplinary action and ultimate termination the judge found that the events did occur. (See above quotations at Dec. 7, 9, 10, 4-16, 18, 19-20; e.g., "I find that the employee's pre-existing psychological condition and his ongoing family/marital problems, more likely than not, combined with his poor work habits and performance to cause the loss of his job with ASCAP." "Mr. Yates sought no medical or psychiatric treatment after this termination until January 1981 when he began to see Dr. Appleton again." [Emphases added].)
The judge's credibility finding at Dec. 17 — that he apparently did not believe that the employee was actually terminated from his employment at ASCAP — is arbitrary and capricious because there is nothing in the record that supports it. On the contrary, everything points to the reality of the termination. The insurer's cross-examination of the employee presupposes that the employee's termination took place. (January 29, 1996 Transcript [Tr. I] 100-102; January 30, 1996 Transcript [Tr. II] 17-21, 43.) The parties stipulated that there was an employee/employer relationship at the time of the alleged stressful events at work from November 1979 to July 1980. (Dec. 5.) There is no dispute that the employee received unemployment compensation from July 1980 to April 1981. (Tr. II 19-21; Dec. 20.) There is no dispute that the employee settled a wrongful termination/interference with contractual relations lawsuit against ASCAP. (Tr. I 19, Tr. II 22-24.) There is simply no evidence in this record that would allow the judge to find that the employee actually was not terminated from his employment at ASCAP in 1980. As all of the judge's other findings contradict it we therefore must disregard this curious finding as arbitrary and capricious. None of the other credibility findings regarding other elements in the employee's depression have any impact on the employee's claim of work events causing further depressive illness. We take, as we must, the employee as is.
We note that the judge's determination that the employee did not meet his burden of proof because he submitted no corroborating evidence as to these work events is not correct as a matter of law. (Dec. 17.) There is no requirement that the employee submit corroborating evidence of any part of his claim in order for it to be credited.
The decision is wanting in other ways. First, the judge concludes that the employee's termination was a bona fide personnel action by the employer, and was therefore not compensable. (Dec. 20.) In 1980, there was no exception for a bona fide personnel action in claims for emotional injury related to work events. The addition of that clause into § 29 of the Act in 1985 was accompanied by a specific provision expressing directing prospective application only. See St. 1985, c. 572, § 68. See St. 1986, c. 662, §§ 6 and 55 (identical provision added to § 1 (7A) was not deemed substantive, but we have read it consistently with § 29, see O'Brien, supra; Leak, supra). The bona file personnel action exception has no application to this 1980 case.
In 1985 and 1986 G.L.c. 152, §§ 1 (7A) and 29 were identically amended and state, 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.
(Emphasis added).
Second, the judge erred in his application of Zerofski's Case, 385 Mass. 590 (1982). The judge found that the work events of disciplinary action and termination were common stresses found in the workplace in general and routinely experienced by workers in any number of occupation. (Dec. 20.) This is a "wear and tear" analysis, and it is misplaced. The analysis of "wear and tear" is associated with the second clause of the Zerofski test, namely whether the injury was caused by an identifiable condition not common or necessary to all or a great number of employments. Id. at 594-595. This analysis is not undertaken when an event or series of event is alleged to have cause an injury. "To be compensable, the harm must arise either from a specific incident or series of incidents at work, or from an identifiable condition that is not common . . ." Id. (emphasis added); Kelly's Case, supra, at 688. In this case, the alleged causative incidents were the disciplinary action and the eventual termination. As inKelly's Case, supra, "the question is whether the event[s] that caused [the employee's] disability [were] incident[s] of employment, `in any of its aspects'." Id. at 686. Mr. Yates comes under the Kelly holding for assessing liability, prior to the legislature's explicit overruling of that holding by the addition of the bona fide personnel action exception to compensability in §§ 29 and 1 (7A) in 1985-1986. Since termination is clearly "an incident of employment in any of its aspects," we reverse the decision as to liability.
We conclude based on the factual findings made by the judge, that the employee suffered an emotional industrial injury within the meaning of the Act in 1980. We recommit the case for further findings on the extent of the employee's incapacity.
Regarding the judge's findings on the extent of incapacity at Dec. 20-21, we note that § 35 partial incapacity benefits are not barred by the employee's receipt of unemployment benefits, and that his employment at a casino in Las Vegas is also not a bar to the claim for partial incapacity, subject to the requisite earning capacity assessment under § 35D.
So ordered.
_________________________ William A. McCarthy Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
Questions of credibility based on personal observation of the factfinder are not subject to our review. An administrative judge's determination of the evidentiary weight and credibility of a witness who personally appeared in front of him is final.Collins v. Leaseway Deliveries, Inc., 9 Mass. Workers' Comp. Rep. 211, 212 (1995); see Lettich's Case, 403 Mass. 389, 394 (1988). Here, the judge explicitly found, based in part of his observation of the employee, that the employee lacked credibility. (Dec. 16-17, 22.) The reviewing board has no power to substitute its own credibility judgement. Brandao v. Joseph Pollack Corp., 9 Mass. Workers' Comp. Rep. 74, 75 (1995).
The judge did not find that the termination did not happen, but that he did not have credible and reliable evidence concerning it. He found that all the evidence about the two allegedly causative work events, the November 1979 discipline and the July 1980 firing, came from the employee directly or from his medical witnesses who were relying on the history he gave about them about what happened and how he reacted. The judge felt unable to rely upon that evidence because the source was not credible or reliable. (Dec. 17.) In so doing, he acted reasonably and rationally. The judge correctly ruled: "[s]ince I do not find his testimony credible, Mr. Yates has failed to meet his burden of proof in this element of his claim." (Id.) The reverse result arbitrarily and capriciously forces an award of benefits based on an incredible foundation!
The judge correctly applied St. 1986, c. 662, § 6, the 1986 amendment to G.L.c. 152, § 1 (7A), to this mental injury claim. This emergency amendment did not increase benefits and therefore, pursuant to G.L.c. 152, § 2A, was applicable to all injuries irrespective of the date of injury. See Phillips's Case, 41 Mass. App. Ct. 612, 614, n. 6 (1996); Shelby Mut. Ins. Co. v. Commonwealth, 420 Mass. 251, 256 (1995); American Mutual Liability Ins. Co. v. Commonwealth, 379 Mass. 398, 404 (1979). This section of the 1986 amendment had two parts: the addition of the word "significant" to the causal standard, and the exemption of mental injuries arising out of bona fide personnel actions.
It provided:
Paragraph (7A) of said section 1 of said chapter 152 is hereby amended by striking out the last sentence, added by section 11 of chapter 572 of the acts of 1985, and inserting in place thereof the following two sentences: — Personal injuries shall include mental or emotional disabilities only where a significant contributing cause of such disability is 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 a personal injury within the meaning of this chapter. St. 1986, c. 662, § 6.
For a detailed explication of my position on this issue, see my dissent in O'Brien v. Gillette Company, 11 Mass. Workers' Comp Rep. ___, slip op. at 11 (April 9, 1997). As I indicated there, further guidance from the Appeals Court or the Supreme Judicial Court would be helpful.
The addition of the word "significant" did not change long established law, but merely clarified the confusion caused by the 1985 amendment, St. 1985, c. 572, § 11, in light of Kelly's Case, 394 Mass. 684 (1995). Laurence Locke wrote in the 1987 supplement to his treatise, Massachusetts Workmen's Compensation, 2nd, 29 M.P.S.(1981):
It is fundamental doctrine that a personal injury, to be compensable, need not be wholly caused by the employment. Since the employer takes the employee "as is," it is enough if the employment is one of the significant [footnote omitted] contributing factors in causing the injury. See Locke, Vol. 29, § 173. This concept is in no way modified or limited by the amendment. The Corrective Act, Section 6, inserted the word "significant" before "contributing", and now for mental and emotional disabilities only it is necessary that the event occurring within the employment be a "significant contributing cause." (emphasis supplied)
Locke, Massachusetts Workers' Compensation Reform Act, § 10.4, (1987).
The second part of the section, the exemption for bona fide personnel actions, repeated that law enacted in 1985 as G.L.c. 152, § 29. St. 1985, c. 572, § 38. The sole effect of this 1986 enactment, implanting identical language into G.L.c. 152, § 1 (7A), was to change its applicability. By virtue of St. 1985, c. 572, § 65, the bona fide personnel action exemption had applied only to injuries arising after its effective date of December 10, 1985. The 1986 amendment made it apply to all injuries regardless of their effective date. The judge correctly applied this provision to the employee's claim. (Dec. 19-20.) He concluded that the disciplinary actions taken by the employer were commonplace, and therefore met the requirement that they be bona fide personnel actions. (Dec. 20.)
The judge wholly discredited the employee's version of events. (Dec. 17.) The judge instead found that the seminal work-related events alleged by the employee as causing his mental disability — various disciplinary actions eventually leading to termination — actually arose out of his narcissistic personality subject to recurring severe depression. (Dec. 18, 20.) He was unpersuaded that work changed the employee's psychiatric condition. He found that "Mr. Yates's medical condition was essentially the same throughout the period from 1977 to 1981 while Dr. Appleton was treating him, and that pre-existing family and marital problems were exacerbating the employee's depression even before the work-related problems arose." (Dec. 18.) This finding is supported by Dr. Appleton's deposition testimony. (Appleton Dep. 6, 9-10, 26-27, 30-32, 34, 42-44, 46-47.)
He first treated the employee in 1977 for depression.
Dr. Appleton treated the employee about 60 times from 1977 to 1981. However, he did not see the employee during the key period from April to December 1980.
The employee had psychiatric treatment prior to commencing this job and began treating with Dr. Appleton in order to obtain prescriptions to continue his medication.
From 1977 to 1979 there was a lot of family stress contributing to his depression.
The employee became paralyzed when he did not take his medication. See n. 8 (the employee did not have prescriptions for his medicine from April 1980 until December 1980 — the period when he was claiming an aggravation of his pre-existing depression).
From January 1980 to April 1980, there was acute stress from martial strife over child rearing and infidelity. The doctor did not see the employee again after April 1980 until December 1980, five months after his termination. (The termination was in July 1980.)
In April 1980, the employee was suicidal. He did not receive prescriptions for his medicine from April to December. The lack of medication would make him depressed again.
The judge's decision is "factually warranted and not `[a]rbitrary or capricious,' in the sense of having adequate evidentiary and factual support and disclosing reasoned decision making within the particular requirements governing a workers' compensation dispute." Scheffler's Case, 419 Mass. 251, 258 (1994). I would affirm it.
_________________________ Suzanne E. K. Smith Administrative Law Judge