Opinion
I.C. NO. 934589
Filed 17 September 2002.
On June 12, 2002, the Full Commission reviewed this file on plaintiff's appeal from an Opinion and Award filed by Kim Ledford, Deputy Commissioner, on August 30, 2001.
Plaintiff: Gary A. Dodd, Attorney, Asheville, NC, appearing.
Defendant: Nesbitt Slawter, Attorneys, Asheville, NC; William Slawter, appearing.
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Having reconsidered the evidence, the Full Commission reaches the same result as the Deputy Commissioner in finding that Plaintiff's claim is not compensable but modifies the findings of fact and conclusions of law.
The Full Commission finds as fact and concludes as matters of law the following which were entered into by the parties through the Pre-trial Agreement and at the deputy commissioner hearing as
STIPULATIONS
1. The parties are subject to and bound by the North Carolina Workers' Compensation Act.
2. The City of Asheville is self-insured for workers' compensation coverage and Hewitt Coleman and Associates is the third party administrator.
3. At the time of the Plaintiff's alleged injury, plaintiff was an "employee" of defendant-employer City of Asheville as that term is defined in the N.C. Workers' Compensation Act.
4. Plaintiff's wage may be determined from the Form 22 submitted to the Commission.
5. Plaintiff contends that the issues are as follows:
(1) Whether the Plaintiff suffered a compensable emotional or psychological injury arising out of and in the course of his employment with the Defendant on May 18, 1998?
(2) Whether the Plaintiff contracted a compensable emotional or psychological disorder as a result of his employment with the City of Asheville?
(3) If so, what compensation benefits is Plaintiff entitled to receive as a result of his compensable disorder?
6. Defendant contends that the issues are as follows:
(1) Did the Plaintiff sustain an injury or occupational disease as a result of his employment with the Defendants, and did he timely report that injury or occupational disease?
(2) If so, what compensation benefits is he entitled to receive?
7. Plaintiff alleges that the date of the cause of his injury is May 14, 1998. Plaintiff alleges that he is entitled to weekly compensation benefits from and after May 18, 1998 due to traumatic stress disorder. Plaintiff was placed on retirement status on December 1, 1998. Plaintiff is seeking weekly compensation benefits, which include: temporary total disability benefits, temporary partial disability benefits, permanent partial disability benefits, or permanent total disability benefits.
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Based upon the competent evidence of record, the Full Commission makes the following additional
FINDINGS OF FACT
1. Plaintiff is 52 years of age, having a date of birth of December 11, 1949. He completed high school. Plaintiff served in the Army from 1969-71, completing two tours of duty in Vietnam, with an honorable discharge in 1971. Plaintiff had combat duty, patrol duty and prisoner of war camp assignment while in Vietnam. While in Vietnam, plaintiff was exposed to violence and death.
2. Plaintiff began working for the Fire Department of the City of Asheville in 1973 and continued working there until he retired December 1, 1998. He received special training and was certified as an emergency medical technician (EMT). He was also trained in hazardous material inspecting, the use of a defibrillator, and the use of the water pumps. Prior to May 1998, Plaintiff had been trained and given the additional duty of driving the fire trucks. He had been driving the fire truck for about 20 years.
3. At the time that Plaintiff began driving fire trucks, around 1978, the position of fire truck driver was not a specific, designated position. Firefighters would share this duty, and there was no additional pay. Previously, the driver position had been a promotional position and firefighters were required to pass a test.
4. In the spring of 1998, there were 39 firefighters who were also assigned as drivers, of which five had been tested and promoted into the driver position. At that time, the City determined that the position of truck driver would be changed back to a separate promotional position. A firefighter would be required to pass a hands-on test to qualify as a driver. Plaintiff and all the other firefighters were notified of this change. Anyone who wished to drive the truck, including the existing drivers, would be required to take and pass the test in order to keep driving. The only exception was for the five drivers who had previously taken and successfully completed the driving test and had been promoted to the designated position.
5. In May 1998, 62 firefighters, including Plaintiff, took the test to qualify as drivers. Of those, 41 passed and 21 did not pass. Of the 21 who did not pass, 9, including Plaintiff, were already assigned drivers. As a result of the test, those who were assigned drivers who did not pass, would no longer be assigned to drive on a regular basis, but would work as relief drivers. There was no demotion involved, and there was no reduction in pay, but there was a change of duty assignment. All drivers who did not pass the test were given an opportunity to challenge the test results, which Plaintiff chose not to do.
6. Plaintiff has a long history of treatment for post-traumatic stress disorder (PTSD), caused by his combat experience in Vietnam. He has a ten percent service connected disability through the Veterans Administration related to his PTSD. Plaintiff showed signs of a stress disorder shortly after returning from Vietnam, when he had angry outbursts with his wife. As early as 1986, he reported to the V.A. Medical staff that he was having dreams about Vietnam. At that time, he was also having difficulties in his first marriage, problems with anger, and was expressing suicidal thoughts.
7. Plaintiff continued with his mental health treatment with the V.A. and by March 1995, he had been assessed with PTSD and depression of several years duration. He continued to have problems with anger management and had ongoing emotional difficulties. By January 1996, Plaintiff's wife had left him and he was reporting high levels of stress and anger.
8. At his February 15, 1996, visit to the V.A., Plaintiff reported that his mother had died about two weeks earlier. He was very depressed over this and his marital situation, and he expressed suicidal thoughts. Plaintiff continued to be seen at the V.A. throughout 1996 and 1997 with symptoms of depression and PTSD related to his service in Vietnam and his ongoing marital and family situation. He continued to have violent dreams set in Vietnam and expressed ongoing problems with anger. He was treated with the medications Zoloft and Paxil.
9. In December 1997, Plaintiff experienced an increase in his symptoms. In addition to his marital problems, his girlfriend was served with divorce papers. Plaintiff's son was demonstrating personality changes consistent with schizophrenia and was admitted to Broughton Hospital on December 23. By early January 1998, Plaintiff was admitting to homicidal thoughts about his girlfriend's ex-husband.
10. At the time he took the driver's test in May 1998, Plaintiff had many personal stressors in his life and an extensive history of mental health treatment for depression, PTSD, and anger management.
11. The position of firefighter may be considered inherently dangerous and exposes firefighters to many traumatic events not usually witnessed by the general public, such as a house fire where persons may be trapped inside or a serious vehicular accident. The evidence in this case, however, fails to show that such events were factors significantly contributing to Plaintiff's psychological problems, including PTSD, depression and anger.
12. After Plaintiff was notified that he did not pass the driver's test, Plaintiff became extremely angry. He called his employee assistance plan and was referred to Dr. Phillip Ellis, a psychologist in the Asheville area, who Plaintiff then saw on May 18 for crisis intervention. Plaintiff expressed his anger at not passing the test and viewed the situation as a demotion. He was particularly upset with the Fire Chief Gary Cornett.
13. Having reviewed and considered the testimony of Dr. Ellis, Dr. Hoogerman, and Dr. Payton, the Full Commission finds that Plaintiff's post-traumatic stress disorder (PTSD) resulted from his service during the Vietnam War and that his condition, combined with his personality type, led to extreme anger and potential violence when dealing with stresses of life such as marital, family, and relationship problems. He had a similar reaction to the driver's test and his relationship with the fire chief. To his credit, he recognized the potential for violence and sought help, initially with Dr. Ellis.
14. Although Plaintiff's PTSD was not aggravated or exacerbated by driver's test incident, that incident was the precipitating incident for the aroused and dangerous mental state with which Plaintiff presented to Dr. Ellis and subsequently sought further treatment. For this reason, the driver's test incident played a significant role in Plaintiff's mental health picture at that time, but that incident did not worsen the underlying psychological condition. Because of his PTSD and psychological problems, plaintiff had unusual difficulty accepting what he viewed as a job demotion.
15. Failing an employment test and perceiving demotion are not uncommon circumstances in the workplace. Such occurrences are not characteristic to employment as a firefighter, and employment as a firefighter does not increase one's risk of experiencing stress as a result of failing a test or perceiving demotion. Neither Plaintiff's PTSD nor his mental state in dealing with the driver's test or the chief were the result of any traumatic event or events characteristic of employment as a firefighter.
16. After May 1998, Plaintiff returned to light duty work. He painted fire hydrants for a while. Plaintiff continued working light duty until December 1, 1998, when, as the parties have stipulated, he went out of work on retirement status.
17. Plaintiff has not established that he has suffered an injury from an "accident." The test requirement, administering the test, test grading, and Plaintiff's performance on the test did not constitute an untoward or unexpected event. Plaintiff voluntarily took the test and knew that he would pass or fail. Consistent with legitimate personnel action, the City of Asheville, in its discretion, choose to reinstitute the process of requiring drivers to pass the test.
18. Plaintiff has not established that he has sustained an occupational disease. Although firefighting involves risks characteristic to that employment, those kinds of risks are were not the reason for plaintiff's claim.
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Based upon the foregoing stipulations and findings of fact, the Full Commission enters the following
CONCLUSIONS OF LAW
1. The Workers' Compensation Act was never intended to be a general accident and health insurance policy. Weaver v. Swedish Imports Maintenance, 319 N.C. 243, 354 S.E.2d 477 (1987). Although workers' compensation is often the exclusive remedy for injuries, including occupational diseases, sustained in the course and scope of employment, workers' compensation is not a remedy for all injuries and is not the proper remedy for employment claims for risks which do not arise out of and in the course of employment. Compare N.C. Gen. Stat. § 97-10.1 (workers' compensation is exclusive remedy) with Busher v. Southern Food Service, 73 F. Supp.2d 556 (M.D.N.C. 1999) (claim for emotional distress arising from termination and denial of FMLA not precluded by Workers' Compensation Act); Harrison v. Edison Brothers Apparel Stores, Inc., 724 F. Supp. 1185 (M.D.N.C. 1989) (emotional damage claim based on acts not in the normal course of employment not precluded by Workers' Compensation Act); Hogan v. Forsyth Country Club, 79 N.C. App. 482, 340 S.E.2d 116, disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986) (Act does not preclude action for civil wrongs which are outside the scope of the Act). The Commission makes no finding as to whether the plaintiff has any valid employment claims which are outside the Workers' Compensation Act and acknowledges that its opinion concerning the validity of the claims is immaterial. See Abels v. Renfro Corp., 108 N.C. App. 135, 423 S.E.2d 479 (1992) (Commission's findings concerning compensability of injury irrelevant to § 97-6.1 claim).
2. Plaintiff has not proven by the greater weight of the evidence that he suffered an injury by accident arising out of and in the course of his employment with Defendant on or about May 14, 1998, which caused his post-traumatic stress disorder, his depression or other emotional or psychological condition. G.S. § 97-2(6). The term "accident" refers to an unlooked for or untoward event which was not expected or designed by the employee. See Poe v. Acme Builders, 69 N.C. App. 147, 316 S.E.2d 338, cert. denied, 311 N.C. 762, 321 S.E.2d 143 (1984). An injury that occurs under normal workplace conditions is not an accident. Id.
3. Plaintiff has not proven by the greater weight of the evidence that his post-traumatic stress disorder, his depression or other psychological condition developed, was aggravated or exacerbated by causes and conditions which are characteristic of and peculiar to his employment with Defendant but excluding all ordinary diseases of life to which the general public is equally exposed, such that he would be entitled to compensation for an occupational disease. G.S. § 97-53(13). Booker v. Duke Medical Center, 297 N.C. 458 (1979). Personnel actions, including taking of performance examinations, being passed over for promotions, failure to receive a raise, and demotions, among other events, are experiences common to many if not all employees at some time in their work history; thus, the change in one's psyche as a consequence of these circumstances is not unique to plaintiff's employment and is not compensable as an occupational disease. See Woody v. Thomasville Upholstery, 146 N.C. App. 187, 552 S.E.2d 202 (2001) (Martin, J, concurred in part and dissented in part), reversed, 355 N.C. 483, 562 S.E.2d 422 (2002) (per curiam) (adopting Judge Martin's dissent); G.S. § 97-53(13).
4. Plaintiff has not proven by the greater weight of the evidence that his post-traumatic stress disorder, his depression or other pre-existing psychological conditions, were significantly aggravated by an accident or other event at work to the point that his condition became disabling. Cross v. Blue Cross/Blue Shield, 104 N.C. App. 284, 409 S.E.2d 103 (1991).
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Based upon the foregoing stipulations, findings of fact and conclusions of law, the Full Commission enters the following
AWARD
1. Under the law, Plaintiff's claim must be and is hereby denied.
2. Each side shall pay their own costs, except that Defendants shall pay the expert witness fees previously assessed.
S/______________ RENE C. RIGGSBEE COMMISSIONER
CONCURRING:
S/_______________ DIANNE C. SELLERS COMMISSIONER
DISSENTING:
S/_____________ THOMAS J. BOLCH COMMISSIONER
RCR/gas
My vote is to reverse.
The testimony of Dr. Ellis, Dr. Hoogerman, and Dr. Payton taken as a whole, together with plaintiff's record of service with the Fire Department, establish that plaintiff was a successful fireman for more than twenty five (25) years with the Asheville Fire Department; that he sought assistance for emotional problems in 1986; that in 1995 he began to receive treatment for psychological problems which included depression and post traumatic stress disorder at the VA Medical Center which was related to his experience in Vietnam, family problems, and stress associated with his work as a fireman; that this treatment program continued until January 6, 1998; that no return appointment was scheduled for him by his Doctor at the VA after the aforementioned appointment; that he had no difficulties in performing his duties as a firefighter during his treatment program; that he had missed no time from work during this period of treatment; that he had received regular wage increases during this time of treatment; and that he had no disciplinary complaints during this time of treatment as a result of performing his duties as a fireman.
On May 14, 1998 he received notice of the results of the drivers test given by the Fire Department and he was informed that his work duties would change despite twenty years of service as a successful driver at the Fire Department. As a direct result of that event his mental condition became much more severe to the point where he was excused from work. When he attempted to return to work and was working on light duty he was subjected to a cruel comment by the Chief which served to further worsen and complicate his mental state. He, thereafter, according to the testimony of three experts became a danger to himself and his fellow workers at the Fire Department resulting in his being removed from duty with the Fire Department and placed on disability status.
The aforementioned facts are clearly established by the record in this case, but the Opinion and Award bears no reasonable relationship to the aforementioned circumstances, and the facts set forth in the Opinion and Award are not supported by the evidence of record.
The record does not support several of the majority's findings of fact. Based upon the facts, plaintiff has proven a compensable claim.
Dr. Ellis testified that his consultation with plaintiff, like the consultation plaintiff had with Dr. Purvis on May 15, 1998, had to do with the event at the Fire Department involving the test for driver and the results of that test as they applied to the plaintiff and his career. Furthermore, Dr. Ellis testified specifically that in his opinion those circumstances at work had precipitated the psychological crisis for which he saw plaintiff. He testified specifically that plaintiff's pre-existing mental problems had been made worse by this event. He also testified that plaintiff's experiences as a firefighter including his service as an emergency technician would have exposed him to a greater risk of developing post traumatic stress disorder than other members of the general public.
Dr. Payton testified that in his opinion the circumstances surrounding the drivers test and involving the Chief had exacerbated and aggravated plaintiff's psychological condition to the extent that he could not return to work as a firefighter and was, thus, disabled from performing the duties of a firefighter. Dr. Payton completed the disability application which resulted in plaintiff qualifying for disability benefits due to the potential for post traumatic stress disorder reaction with mood swings which would push plaintiff into a paranoid position with little control of his anger.
The Court of Appeals and the Full Commission have previously recognized that an employee who becomes unable to perform his work duties as a result of an emotional condition by perceived stimulus or stimuli is entitled to Workers' Compensation benefits — Pulley v. City of Durham, 121 N.C. App. 688, 468 S.E.2d 506 (1996,); Cross v. Blue Cross/Blue Shield, 104 N. C'. App. 284, 409 S.E.2d 103 (1991 ); Harvey v. Raleigh Police Department, 85 N.C. App. 540, 355 S.E.2d 147 , review denied , 320 N.C. 631, 360 S.E.2d 86 (1987 ), appeal after remand , 96 N.C. App. 28, 384 S.E.2d 549 , review denied , 325 N.C. 706, 388 S.E.2d 454 (1989) ; Simmons i'. N C. Dept. of Transportation, I.C. No. 748662 (1988); Schmidt v. University of North Carolina at Charlotte, I.C. No. 910359 (1994).
The fact that a mentally troubled employee may have stressors in his or her life unassociated with employment is not a bar to recovery of Workers' Compensation benefits if there is competent evidence that the mental problems are causally connected to work and there is a recognizable link between the nature of the work and an increased risk of contracting the mental condition. Pulley, supra. In Pulley, the employee was a police officer who was initially suffering with stressors of having filed bankruptcy, having day care problems for her Downs' Syndrome son, and her husband getting into legal problems and leaving home periodically. She was receiving treatment for these stress related problems. Plaintiff was also subjected to stress as a result of her duties as a police officer and her condition worsened to the point where she could no longer work. The Full Commission reversed the decision of the Deputy Commissioner and found that plaintiff's employment as a police officer significantly contributed to plaintiff's emotional problems and that there was no expert opinion evidence that plaintiff's ailment was not job related. The Court of Appeals affirmed the decision of the Full Commission. In so doing the Court found that the first two elements of G.S. § 97-53 (13) were satisfied if, as a matter of fact, the employment exposed the employee to a greater risk of contracting the disease than the public generally and that the third element is satisfied "if the employment `significantly contributed to or was a significant causal factor in the disease development'." Pulley, p. 510. The evidence in this case establishes that the stress experienced by plaintiff in his employment situation with the Chief resulted in a significant worsening, aggravation, and development of his pre-existing condition to the extent that he was unable to continue to work as a fireman.
The existence of a pre-existing condition is not a bar to compensation benefits if that condition was not disabling and had not affected the employee's earning capacity prior to the event or events which worsened or exacerbated the pre-existing condition to the point where it became disabling. Kendrick v. City of Greensboro, 80 N.C. App. 183, 341 S.E.2d 122 (1986); Vause v. Equipment Co., 233 N.C. 88, 63 S.E.2d 173 (1951); see also Rutledge v. Tultex Corp., 398 N.C. 85, 102-05, 301 S.E.2d 359, 370-71 (1983) (reaffirming Vause). The Court of Appeals has stated that
"When an industrial injury precipitates disability from a latent prior condition, such as heart disease, cancer, back weakness and the like, the entire disability is compensable."
Therefore if the employee's work-related injury or disease contributed in "some reasonable degree" to his disability he is entitled to compensation. Vause. supra. In this case, plaintiff had not experienced disability from his employment as a result of his mental condition until he experienced the problems at work with the driver's test and, later, with the Chiefs comment. The evidence in this case is more than sufficient to establish that these two events together with the general stressors associated with his duties as a fireman resulted in a disabling condition which had not, theretofore, existed.
The Full Commission has recognized that a mental impairment may be compensable if it results from a single incident. Simmons v. N C. Dept. of Transportation, I.C. No. 748662 (1988). Schmidt v. University of North Carolina at Charlotte, IC. No. 910359 (1994). Likewise, various courts have determined that one may suffer injury by accident if it results in unusual or excessive strain or from performing duties at work of an entirely different character from that which is customarily performed by the injured employee. Thus, awards have been made under the following circumstances: heavy and unusual litigation by an attorney; long hours and unusual excitement by a social club worker; job pressures of an insurance commissioner; a judge handling a heavy back log of cases; and the emotional impact of an employee dealing with alleged malfeasances. A. Larson, Workmen's Compensation Law, § 38-65(`b,), pp. 7-240-242 (1991). In this case the test that was given by the employer was expected. However, the performance of the test was not a usual or customary activity associated with the fire fighting duties of the plaintiff. Furthermore, the result of the test as it related to plaintiff was unexpected in that it produced a significant worsening of his mental condition. It is respectfully submitted that the event of the test together with the comment of the Chief were of a nature to qualify them as accidental occurrences resulting in plaintiff's disabling condition. The Court of Appeals has held that where an employee was injured as a result of duties that were not routine or customary to his employment then he was injured by accident and the injury is compensable. Sanderson v. Northeast Constr. Co., 77 N.C. App. 117, 334 S.E.2d 392 (1985). Unusual exertion and stress have been recognized as resulting in accidental injury. Wall v. North Hills Properties, Inc., 125 N.C. App. 357, 481 S.E.2d 303 (1997) cert. denied, 346 N.C. 289, 487 S.E.2d 673 (1997). The aforementioned principles support a conclusion that plaintiff is entitled to compensation benefits because of appropriate evidence and the applicable law.
This 27th day of August 2002.
S/_____________ THOMAS J. BOLCH COMMISSIONER