Opinion
BOARD No. 09368785
Filed: May 17, 1995
REVIEWING BOARD:
Judges Maze-Rothstein, Kirby, and Smith.
APPEARANCES:
John F. McGrail, Esq., for the employee.
Patricia Noone, Esq., for the insurer.
This case thrusts us into the difficult arena of mental injuries with physical manifestations and mental injuries with mental manifestations complicated further by a pre-existing mental condition.
The employee appeals from a decision that awarded her §§ 13 and 30 medical benefits for a stress-induced temporary exacerbation of a gastrointestinal condition yet dismissed her benefits claim for a psychological injury alleged to have arisen from the same work stresses. The employee charges the judge erred in finding that work-related stress exacerbated the gastrointestinal problems but that the same stress did not aggravate her underlying psychiatric condition. The employee argues that when the judge rejected the opinion of the only psychiatrist, who causally related the work stress to the worsened psychological condition, the judge made a reversible error.
We are not persuaded that the judge had to adopt that psychiatric opinion. However, we recommit for further findings because the determination that the work-related stressful stimuli caused a mental disruption enough to contribute to one condition but not the other leaves an unresolved inconsistency within the decision. Further, the judge's decision does not reveal that he was mindful of the unique legal standards applicable to mental incapacities for the subject 1985 date of injury. We, therefore, vacate and recommit for a decision de novo.
The employee claimed that she suffered two interrelated injuries from a series of stress-inducing incidents at work. First, she alleges that incidents at work aggravated her underlying emotional problems to the point of incapacitating disablement. She further asserts that these same stressful events renewed symptomatology of her longstanding gastrointestinal disorder.
The employee, a sixty-seven-year-old Registered Nurse, long suffered from a combination of emotional and gastrointestinal disorders. Despite this her career included: receipt of her Massachusetts licensed practical nurse (LPN) certification in 1969 and attainment of registered nurse (RN) status in 1973. On May 25, 1969 the Worcester State Hospital hired her as an LPN. Approximately four years later, in September 1973, she became a staff RN. The hospital promoted Ms. Grattan to a head nurse in May 1974. She continued in that position until January 22, 1985, her last day of work.
The employee's lengthy history of emotional and gastrointestinal disorders were characterized by delusions of a child snatching conspiracy as well as of child support theft conspiracies by state or social service agencies. (Dec. 7, 8, 12.) Although she experienced these problems continuously for decades, the employee functioned as shown by her schooling and long-term employment success. (Dec. 12.) Nevertheless, her ability to compensate qualitatively changed in 1983. (Dec. 12).
The evidence is that the employee suffered the gastrointestinal problems since 1956 and first received treatment in 1963 (Dec. 7; Tr. 10) she suffered psychological problems since 1954, the year she was divorced. (Dec. 8.)
After a motor vehicle accident on June 19, 1983, the employee's delusions became more pronounced and were characterized by a lack of verbal restraint about her imaginings. This led to a July 1, 1983 meeting with hospital administrators. (Dec. 8.) At the July 1, 1983 meeting, a Dr. Lorenz arrived at a diagnosis the employee had not solicited that she was "having an acute paranoid reaction and acute depression." (Dec. 8-9; Tr. 11-13, 16; Employee's Ex. 9.) This meeting commenced the series of events that allegedly caused injury to Ms. Grattan. The work events which occurred over an approximate two-year period, involved hour and shift changes, job reassignments, allegations of performance decrements, "disciplinary" actions, administrative meetings, and a written reprimand. (Dec. 9-11; Tr. 17, 20-27, 30-32; Employee Ex. 10, 13, 15, 16.)
It appears that Dr. Lorenz was a psychiatrist. (Tr. 11.)
Despite the foregoing sequences of events, Ms. Grattan's supervisory Registered Nurse gave her positive job evaluations in March and October of 1984. (Dec. 10; Employee's Ex. 13, 15.) Nevertheless, the evaluations indicated that her job reassignment had a dramatic impact on her. (Dec. 10.)
The employee began to take sick leave commencing on January 22, 1985 indicating stressful events at work caused her to do so. (Dec. 10.) She exhausted her sick pay and took unpaid leave from April 19, 1985 through the effective date of her retirement on March 3, 1988. (Dec. 11.)
The administrative judge considered the work events and the reports of several medical experts submitted on behalf of the parties. The judge relied on the opinions of Dr. John Darrah and Dr. G.N. Girgis. They opined that anxiety and stress associated with the employment were related to the employee's gastrointestinal symptomatology. (Dec. 11-12; Employee's Ex. 4, 19.) The self-insurer's expert, Dr. Jack Leitner, opined that work problems contributed to the epigastric condition but that this condition took a back seat to the primary psychological problem which rendered her unable to work. (Dec. 5 6, 11; Self-Insurer's Ex. 2, Leitner Report of November 12, 1986). The experts agreed the physical problems, while not disabling, were probably stress-induced by her work conditions. (Dec. 11, 12.)
Dr. Darrah is a gastroenterologist and Dr. Girgis is a neurologist. Dr. Girgis recommended psychiatric therapy and thought a more appropriate diagnosis was "work related anxiety and stress." (Dec. 6, 12; Employee Ex. 19.) Dr. Girgis apparently examined Ms. Grattan for the self-insurer. (Dec. 6.)
The judge also considered the opinions of Dr. Moretti and Dr. Sanafron on the issue of the gastric disorder. He recited their opinions but did not make findings.
The employee's expert, Dr. Cutler, the only psychiatrist to testify diagnosed her underlying delusionary, paranoid disorder. Dr. Cutler pointed to the 1983 and 1984 working atmosphere and cited "the many events at work" as causative of a disabling aggravation of her mental state that rendered her unable to work. (Dec. 7; Employee's Ex. 2.) Dr. Cutler noted the numerous work events, but specifically referenced the conference (i.e., July 1, 1983) where a non-treating psychiatrist gave a diagnosis of paranoia as the cause of the exacerbation. (Dec. 7.) The judge specifically rejected Dr. Cutler's opinion finding it significant that the employee was able to continue in her job after July 1, 1983. (Dec. 13.)
Based on this lay and medical evidence, the judge found that as of January 22, 1985, due to the cumulation of work-related stressors, the employee's underlying gastrointestinal disorder had been aggravated. (Dec. 11.) He ordered medical benefits for her treatment in January and March, 1985. (Dec. 13-14.) The judge specifically found that a November 1984 incident report and "notification of disciplinary proceedings relative to the incidents" contributed to the injury. (Dec. 11; see Employee's Ex. 16.)
In essence the judge found that over time the series of work stresses culminated in an industrial injury on January 22, 1985 disrupting the employee's mind to the point of an epigastric physical manifestation. Yet at the same time and based on the same sequence of work events, the judge denied benefits for a psychological injury. He found that she failed to meet her burden of proving a causal relationship between her psychiatric disability and the employment. (Dec. 12, 13.)
To reject psychiatrist Dr. Cutler's opinion which linked the many work events to a disabling aggravation of her mental condition, the judge fixed on the fact that the employee suffered no "disabling downslide" immediately following the administrative meetings and contacts, the change in job duties and shift hours or after the unsolicited paranoia diagnosis. (Dec. 13.) He apparently deduced the lack of an immediate decline coupled with the 1984 favorable job evaluations together indicated the work events were unrelated to her psychological problems. The judge's finding appears to imply the post July 1, 1983 work-related incidents did not contribute to the disability because Ms. Grattan continued to function on her job for almost two years during their occurrence. (Dec. 3.)
This reasoning results in an internally inconsistent decision with three problems. First, the employee always functioned attaining education, career advancements, performance accolades and increased professional responsibility for some thirty years despite the onset of delusional psychiatric problems in 1954. Second, the judge's reliance on a speedy decline leaves us unsure that he applied the correct legal standards to analysis of the psychological injury. Third, though the judge did not specifically assess the effect of the post July 1, 1983 work incidents on the employee's psychological condition to reach her mental injury claim, he nevertheless contrarily found those incidents from 1983 onward cumulatively caused a mental/physical industrial injury on January 22, 1985.
Other findings further obscure the judge's conclusion that the mental injury was not compensable. The judge found that the "overall employer response was heavy handed and does not seem to have been helpful to the employee." (Dec. 12.) Regardless of these findings the judge concluded relying on his "impression" that the pre-existing disorder finally so distracted the employee that she could no longer continue working. (Dec. 13.) These findings also leave us unable to reasonably determine that the judge understood the "contributing factor" legal standard applicable to the employee's case.
Where an emotional or mental incapacity relates causally to mental trauma or stress arising out of the employment looked at in any of its aspects, the resultant personal injury is compensable. Fitzgibbons's Case, 374 Mass. 633, 637 (1978); Cennerazzo v. GTE Laboratories, 4 Mass. Workers' Comp. Rep. 253, 255 (1990). The mental trauma or stress must be caused by an identifiable, work-related incident or series of incidents, or from an identifiable condition that is not common and necessary to all or a great many occupations. Zerofski's Case, 385 Mass. 590, 594-595 (1982). Where an incident or a series of workplace incidents causes mental injury, the "wear and tear" doctrine is inapplicable and the injury is compensable. See Zerofski's Case, 358 Mass. at 594, 595; Moore v. Department of Pub. Works, 6 Mass. Workers' Comp. Rep. 129, 131 (1992).
Peculiar to the employee's January 18, 1985 injury date is the applicable law of Kelly's Case, now in part rarified by subsequent statutory amendment. Id. 394 Mass. 684 (1985). Under the Kelly standard, where an employee suffers a mental or emotional disorder caused by a transfer, demotion, verbal or written criticisms, disciplinary actions or other personnel matters, even if an employer acted in good faith, it would constitute a compensable personal injury within the meaning of G.L.c. 152. See Id. at 686; Albanese's Case, 378 Mass. 14, 18-19 (1979), Day v. Lumbermen's Mutual Cas. Co., 4 Mass. Workers' Comp. Rep. 312, 316 (1990). While not all distress from bona fide personnel actions is compensable, an employer must take an employee "as is" regardless of any unique susceptibilities or vulnerabilities to injury. Zerofski's Case, 385 Mass. at 592-594; Kelly's Case, 394 Mass. at 687; Antoine v. Pyrotector, 7 Mass. Workers' Comp. Rep. 337, 341 and n. 2 (1993); see Leak v. F.A. Bassett Printing Co. 4 Mass. Workers' Comp. Rep. 206, 213 (1990). The law applicable to Ms. Grattan's case does not require the sole cause of injury to be the employment. In fact, if the employment was one of the contributing factors in causing an aggravation of a pre-existing condition, the subsequent injury is compensable. Antoine, supra at 340-341.
Injuries occurring on and after December 10, 1985 are outside of the scope of the Kelly holding. By St. 1985, c. 572 § 38, the Legislature responded to the holding in Kelly's Case. It amended G.L.c. 152, § 29 and carved out an exception to the definition of personal injury and excluded claims for mental or emotional disability arising out of a bona fide personnel action, including a transfer, promotion, demotion or termination, except those actions deemed the intentional infliction of emotional harm. This section was deemed substantive by St. 1985 c. 572, § 65 and thus applies only to injuries after the effective date of the amendment.
Section 1(7A) as amended by St. 1985 c. 572, § 11 and St. 1986 c. 662, § 6 provides that personal injuries include mental or emotional disabilities where a significant contributing cause was an event or series of events in the employment. This amendment only applies prospectively to injuries occurring on or after January 1, 1986. See Day v. Lumbermen's Mutual Cas. Co., supra at 316 n. 5; Leak v. F.A. Bassett Printing Co., supra at 213. Section 14 of St. 1991 c. 398, substituted the word "predominant" for a "significant" contributing cause and inserted a sentence providing that if a compensable injury results from a disease not compensable under the chapter, the resultant condition is compensable only to the extent the compensable injury remains a "major but not necessarily predominant" cause of disability. Under St. 1991 c. 398, § 106, the amendment is substantive and applies prospectively only to injuries after December 23, 1991. See Antoine, supra at n. 1.
Although amendments to G.L.c. 152, § 1(7)(A) enacted subsequent to Kelly's Case have narrowed the scope of compensability for injuries arising out of bona fide personnel actions, "that does not mean that all of the court's reasoning" in Kelly "has been supplanted." Robinson's Case, 416 Mass. 454, 458-459 (1993). See supra n. 6 (discussing amendments). The amendments to § 1(7A) do not "suggest . . . that entitlement to workers' compensation for emotional disability requires proof of facts in addition to those required when the disability is only physical." Robinson's Case, 416 Mass. at 459 quoting Kelly's Case, supra at 686; see supra nn. 5, 6 (discussing 1985, 1986, 1991 amendments to § 1(7A)).
The Supreme Judicial Court does not read the statute or its amendments to require that an incident or series of incidents be "unusual and objectively stressful or traumatic," as long as they are contributing factors in bringing about an injury. Robinson's Case, supra at 459, 460, quoting Kelly's Case, supra at 687. The strain need not be severe if an employee succumbs to it. Therefore, the nature of the event or events themselves do not govern compensability, but rather, the determinants turn on the impact the events have on the employee's mental or emotional condition. It is on the latter consideration that an adjudicatory analysis must focus.
As noted above, the event or events must be either "contributing," "significant," or "predominant" depending on the date of injury. See supra n. 6; Antoine, supra at n. 1 and accompanying text.
We note that under this test, even an objectively "minor" event could be a "significant" or even a "predominant" cause of an incapacity under certain circumstances.
Additionally, the judge found it significant in denying compensability that the employee did not suffer a "disabling downslide" following the 1983 incidents at work. See (Dec. 13). Yet he found incidents between 1983 and 1985 ended in a mental/physical, stress-induced epigastric injury in 1985. More significantly, while the 1983 incidents were not found to worsen the employee's psychiatric condition, no clear findings were made on how the incidents between 1983 and 1985 affected the employee's mental state. Yet, those same 1983 to 1985 incidents were found causative of the 1985 mental/physical gastric injury. Herein lies the unresolved internal inconsistency and conundrum in the decision. The law does not require an employee to experience a precipitous decline. Gradually developed injuries are compensable as well as those caused by sudden incidents. Zerofski's Case, 385 Mass. 590, 592 (1982). Certainly, if the 1983 to 1985 incidents were considered, they would provide adequate immediacy to reach a finding on the January 18, 1985 psychological injury claim as they did for the finding of the stress-induced epigastric injury.
The dissent mentions there was "no evidence of contemporaneous medical treatment for a psychiatric problem." While such concerns — if found by a hearing judge — might go to evidentiary weight, there certainly is no legal requirement of immediate treatment in psychiatric cases.
We are unable to discern in the subsidiary findings a rational basis for finding that work-related stressful stimuli between 1983 and 1985 caused the epigastric exacerbation but did not affect the psychological condition. If the hearing decision were to be affirmed in its present form, we ought to be able to look at the subsidiary findings of fact and clearly understand the logic behind the ultimate conclusions reached. We simply cannot. A decision must disclose reasoned decision making. Robinson's Case, supra at 457-458.
Further, as set out above, the subsidiary findings while extensive and detailed, do not disclose with reasonable certainty whether the correct standards and principles of law were applied to the facts found. See Praetz v. Factory Mut. Eng'g Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993). They are thus inadequate to support the finding of noncompensability under the applicable law of Kelly's Case.
For injuries occurring prior to January 1, 1986, incidents characterized as "heavy handed" and "not helpful" could constitute specific stressful identifiable events sufficient to sustain a claim for benefits, if they contributed to an aggravation or acceleration of a pre-existing psychiatric condition, whether or not the incidents were bona fide personnel actions (e.g., disciplinary proceedings, transfers, demotions, etc.) or even objectively perceived to be not unusual. (Dec. 12.) and see Robinson's Case, supra at 459-460; Kelly's Case, supra at 686-687.
The dissent argues against application of Kelly's Case. Subsequent legislative revisions have borne out her perspective. See G.L.c. 152, § 1(7A) and n. 11, supra. However, for better or for worse, the law for this employee's date of injury is Kelly's Case. Under Kelly's Case the bona fide nature of a personnel action is of no consequence. Moreover, there is nothing in Kelly's Case to suggest that a work-related aggravation of a pre-existing mental condition is noncompensable. In fact Kelly's Case specifically states, "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 an identifiable incident or strain need not be unusual or severe to support compensation if the particular employee succumbs to it. . . ." Id. at 687. (Emphasis supplied).
Our colleague in dissent argues there is an instructive distinction between "direct" and "indirect" causation. For support she relies on Fitzgibbons's Case, 374 Mass. 633 (1978) and Blanchette v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 479 (1985). Neither provides the suggested fortification. In fact, neither case discusses "indirect" causation as such. Fitzgibbons's Case distinguishes between specific identifiable events and mere wear and tear. Id. at 638. In so doing, the Fitzgibbons court upheld a mental injury finding. Id. at 640. In Blanchette the claim failed largely due to a noncommittal and contradictory causation opinion by the plaintiff's psychiatric expert, not because of the length, duration or timing of the work events. Id. at 484-485, 486 n. 6 488. Here the judge had before him both specific identifiable events and a decisive psychiatric opinion. Together the events and medical evidence could suffice to support the employee's burden of proximate causation. Moreover, by definition a causal connection between an industrial injury and the performance of work duties is both proximate and "direct." See Blanchette, supra at 486. It is this causation inquiry which governs adjudication under chapter 152.
Thus, because the decision does not enable us to determine whether the denial of the psychiatric injury was proper or whether that determination was guided by correct application of the germane legal principles we return this case for a decision anew on the psychiatric claim. G.L.c. 152, § 11C. Johnson's Case, 355 Mass. 782, 783 (1968); Ballard's Case, 13 Mass. App. Ct. 901, ___ (1982); Martin's v. Longview Fibre Co., 7 Mass. Workers' Comp. Rep. 72, 73 (1993); Crowell v. New Penn. Motor Express, 7 Mass. Workers' Comp. Rep. 3, 4-5 (1993); Morillo v. Barnet Corporation, 7 Mass. Workers' Comp. Rep. 70 (1993). Therein the judge must address the apparent logical inconsistency and he must clarify his decision in that regard. To do so he must determine whether or not all the work events between 1983 and 1985 contributed causally to an aggravation of a pre-existing mental condition to the point of incapacity. He must apply the aforementioned proper legal standard for the employee's January 1985 injury date to the facts found as articulated in Kelly's Case, 394 Mass. 684 (1985).
The dissent espouses views on the meaning of recommittal under § 11C which have incited commentary in prior review board decisions. See Donahue v. Petrillo, 8 Mass. Workers' Comp. Rep. 25, 32 (1994) (for a thorough discussion of the same dissenting member's interpretation of review board power to recommit).
Accordingly, we vacate and recommit this case for a decision anew on the psychological claim consistent with this opinion. The judge in his discretion may adduce further evidence if he deems it necessary. We affirm the award of medical benefits for the gastrointestinal condition.
So ordered.
Judge Kirby concurs.
The judge did not err in his legal analysis; he made factual findings which are supported by the record. Section 11C requires us to affirm the decision.
The judge in his decision briefly stated the reasons that he did not find Grattan's psychological disability to be causally related to her employment. His explanation was adequate to allow the board to review the only issue raised by the employee: whether the judge's rejection of the psychiatric opinion was improper. Because the decision is adequate for appellate review of this issue, a remand for that further findings of fact is inappropriate.
The employee makes no claim that the decision is inadequate for appellate review. (Employee's Brief, Statement of Issues at 5.)
To better understand the judge's reasoning process, it is helpful to review the procedural history of the case.
PROCEDURAL HISTORY
Joan Grattan filed a claim for compensation describing her injury as an "stress related ulcer" resulting in incapacity commencing January 18, 1985. (Employee Claim dated August 28, 1987.) The claim was denied at conference and Grattan appealed for hearing. At hearing she claimed aggravations of both a longstanding gastrointestinal disorder and an underlying emotional problem. (Dec. 4.) The judge decided that Grattan sustained a personal injury on January 22, 1985 of a temporary aggravation of her underlying gastrointestinal disorder which arose out of discipline commencing in November, 1984 and awarded medical benefits for its treatment. He was unconvinced gastrointestinal condition prevented the employee from working and so denied incapacity benefits based on it. He denied Grattan's mental injury claim.
JUDGE'S FINDINGS OF FACT
The judge was not persuaded that events at work caused a qualitative change in Grattan's psychiatric condition. He found instead that, although her delusions became more pervasive over time, work did not cause that change. He rejected medical opinion causally relating discipline at work to her psychiatric deterioration because it was based upon an erroneous assumption that the employee's mental problems worsened after a 1983 event. He stated: My rejection of that aspect of the opinion of Dr. Cutler causes me to find that the employee did not meet her burden to show a causal relationship between her disability and her employment." (Dec. 13.) He therefore denied the claim for incapacity benefits and for medical treatment for the psychiatric condition. (Dec. 14.)
SOLE ISSUE ON APPEAL
On appeal, the employee argues that the judge erred in rejecting the only medical opinion offered on the causal connection between the work injury and the psychiatric condition. I concur in the majority's rejection of this argument. Having found the employee's argument without merit, the appeal should be denied.
PERMISSIBLE DISREGARD OF EXPERT TESTIMONY
The judge was not compelled to adopt the expert psychiatrist's opinion. He expressed his reason for rejecting it. His rejection of the expert opinion was based upon a comparison of the facts which he found and the facts assumed by the medical expert. The premise of the medical opinion was that the complained of work stress was closely temporally related to a worsening of psychiatric symptoms. In contrast, the judge found as a fact that the employee "had these delusion for decades . . . these delusions became more and more pervasive over time. . . ." (Dec. 12.) The judge compared the employee's baseline condition prior to the alleged work stress with her condition thereafter. He found that the symptoms worsened prior to the first alleged work stress on July 13, 1983 relied upon by the expert. Id. The employee had a car accident prior to July 1983 which was an independent non-work stressor apparently unknown by the physician as it was not contained in his history. (Employee Ex. 2.) The judge further compared the employee's symptoms before and after the subsequent alleged work stresses and found no change in them. (Dec. 13.) He wrote: "Her March and October 1984 evaluations show her to have been adequately performing on the job and to not have suffered a disabling downslide following the meetings, her change in job and shift, and her gaining knowledge of the diagnosis made of her at the July 1983 meeting and the summaries of her contacts with the administration." (Dec. 13.) His comment is significant because these were the specific work events alleged to be causative of her psychiatric disability. The judge then further stated: "This factor [i.e. the lack of a mental change following these work stimuli] is significant in my being unconvinced by, specifically rejecting, and not adopting Dr. Cutler's opinion that the 1983 and 1984 events at work, particularly the conference at which she was diagnosed, exacerbated her condition so as to render her disabled." Id.
Dr. Cutler wrote: "The nonsupportive atmosphere of her employers sometimes in 1983 and 1984 certainly exacerbated her underlying Delusional (Paranoid) Disorder so that currently she is unable to work at all. Certainly, the many events including a conference in which a psychiatrist gave her a diagnosis of Paranoia during a time when she was not a patient, exacerbated this already delusional woman's condition." (Employee Exhibit 2.)
The employee did not claim a gradual mental injury.
This occurred on July 1, 1983, a year and a half prior to her leaving work.
An administrative judge may properly disregard an opinion based on inaccurate history. Sevigny's Case, 337 Mass. 747, 751, 151 N.E.2d 258 (1958); Collins's Case, 21 Mass. App. Ct. 557, 562, 488 N.E.2d 46 (1986). As the basis for disregarding the expert psychiatric opinion is rationally grounded in the evidence, the judge's decision is not arbitrary or capricious and must be affirmed unless it is based upon an error of law.
TEMPORAL CONNECTIONS, OR LACK THEREOF, ARE LEGALLY RELEVANT
The judge made an inference from the sequence of events. In so doing, he did not act contrary to law.
The temporal connection between work activity, the occurrence of symptoms and medical treatment has always been a legitimate factor to consider in determining causation, both of mental and physical injuries. Compare Fitzgibbons's Case, 374 Mass. 633, 634 (1978) (an immediate emotional reaction following a dramatic incident at work where a worker which he supervised died); Albanese's Case, 378 Mass. 14, 18 (1979) (a series of identifiable stressful work-related incidents occurring over a relatively brief period of time); Weeks v. General Electric Co., 4 Mass. Workers' Comp. Rep. 322, 323 (1990) (for a disabling emotional disorder to be compensable, it must have resulted from a series of identifiable stressful, work-related incidents occurring over a relatively brief period of time). Contrast cases which affirmed the denial of compensation: Blanchette v. Contributory Retirement Bd., 20 Mass. App. Ct. 479, 484 (1985) (mental problems of long duration which caused problems at work); Day v. Lumbermen's Mutual Cas. Co., 4 Mass. Workers' Comp. Rep. 312, 316 (1990) (personal stresses rendered the employee unable to cope with criticisms of his work performance); Korsun's Case, 354 Mass. 124, 128 (1968) (stress resulting from sight of a whiskey bottle was a personal idiosyncracy not connected to work); Begin's Case, 354 Mass. 594, 595 (1968) (highly sensitive individual not suffering from traumatic neurosis); Maggelet's Case, 228 Mass. 57, 61-62 (1917) (occupational neurosis not compensable because act affords no relief for general disease; it deals only with personal injuries following as an immediate result from employment as its direct cause).
The majority errs as a matter of law if it is instructing the judge not to consider temporal relationships. Those temporal relationships provide the logic behind the judge's decision.
Causation is an issue of fact on which the employee has the burden of proof. The causation decision in mental injury cases is an extremely difficult task and often depends on credibility determinations. The decision as to whether the employee has met her burden of proving causation is uniquely within the province of the administrative judge. Lavoie v. Westfield Pub. School Sys., 7 Mass. Workers' Comp. Rep. 77, 80 (1993). The trier of fact, not appellate judges, must resolve the issue of causation in fact. Zerofski's Case, 385 Mass. 590, 594 (1982). See Walczak v. Massachusetts Rehabilitation Comm'n, 4 Mass. Workers' Comp. Rep. 303, 304 (1990) (commenting on the delicate line between compensability for psychic injury to which an event or series of events at work contributed and psychic injury caused by wear and tear).
Here the judge made a factual conclusion that he was unpersuaded by the only psychiatric evidence in the case; therefore the employee failed to meet her burden of proving causation. We have no legal authority to question this factual judgment.
STANDARD OF COMPENSABILITY FOR MENTAL INJURIES
I disagree that the case requires remand because of an "internally inconsistent" causation determination. The judge did not utilize an erroneous legal standard regarding the compensability of mental injuries but rather was unpersuaded that work in fact caused an aggravation of the employee's active pre-existing mental disease.
In this case, unlike Kelly's Case, the insurer contested the causal connection between work and the mental disability and the administrative judge found no causation-in-fact. Compare Kelly's Case, 394 Mass. 684 (1985) and Zerofski's Case, 385 Mass. 590 (1982), where the issue was not the cause and effect relationship between work and disability but whether, given factual causation, the law permitted compensation. In Kelly's Case, the board determined as a fact that the employee's emotional disability had been caused by notice to her that she would be laid off. Kelly's Case, 394 Mass. at 686. The only question was whether her disability could be said, as a matter of law, to "arise out of and in the course of employment" within the meaning of the workers' compensation act. We are not presented by this legal issue here as the factual predicate is missing.
I agree with the majority that Kelly's Case is good law, but it deals with an issue secondary to the one presented here. To reach the Kelly and Zerofski issue of legal causation, one must first have a determination that medical causation exists. The judge here made the contrary finding which is entitled to respect.
Additionally, contrary to the assertions of the majority, the employee here did not claim a gradual mental injury, but one predicated on specific work incidents.
Thus, there are clear distinctions between this case and Kelly's Case. The underlying facts of the two cases differ significantly as well. Unlike here, where there is a long history of mental illness, in Kelly's Case, there was no evidence that the employee had a pre-existing mental disorder or was subject to outside stress. The work activity was the sole cause of Kelly's mental illness. Similar distinctions set this case off from other cases in the Kelly line of decisions such as Fitzgibbons's Case, 374 Mass. 633 (1978) and Albanese's Case, 378 Mass. 14 (1979). See Blanchette v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 479 (1985) where the court utilized this reasoning to affirm a no-causation finding.
This case is similar to Day v. Lumberman's Mutual Casualty Company, 4 Mass. Workers' Comp. Rep. 312 (1990), where the Reviewing Board affirmed a no-causation finding. In Day, the Board held that because the judge found no causal connection between the employee's demotion and transfer and his emotional disorder, the claim fell outside the scope of Kelly's Case, 394 Mass. 684 (1985).
Insofar as it intimates that the connection between work and mental injury may be tenuous or indirect and still support compensability, the majority misconstrues the applicable law. The Workers' Compensation Act is based upon the legislative judgment that "human loss directly arising out of commercial and industrial enterprises" is part of the operating cost of business. Murphy v. Commissioner of the Dept. Of Ind. Accidents, 415 Mass. 218, 222, 612 N.E.2d 1149, 1152 (1992) (emphasis supplied). There must be a direct and perceptible connection between the events at work and changed mental functioning which either causes lost time from work or necessitates medical treatment. See Blanchette v. Contributory Retirement Bd., 20 Mass. App. Ct. 479, 488 (1985) (school custodian did not sustain his burden of establishing a direct causal relationship between his mental disability and a personal injury sustained while in performance of his duties; disability retirement benefits denied).
That in existence prior to the 1985 amendments to G.L.c. 152, § 1 (7)A.
There is a danger in disciplinary cases that the claim is for injury to feelings rather than for a medically cognizable psychiatric condition. One may feel insulted by an employer's disciplinary actions without being "mentally injured" within the meaning of the workers' compensation act.
The requirement of a direct causal connection differentiates those conditions which in a just sense are related to employment from those which should more properly be covered by personal health insurance. See Adams v. Contributory Retirement Appeal Bd., 414 Mass. 360, 366, 609 N.E.2d 62, 66 (1993), citing Zerofski's Case, 385 Mass. 590, 594, 433 N.E.2d 869 (1982) and Maggelet's Case, 228 Mass. 57, 61, 116 N.E. 972 (1917).
Physical and organic disorders resulting from mental trauma are compensable personal injuries where there is a direct causal relationship between the mental trauma, the physical or organic injury and the nature, conditions, obligations or incidents of employment. Fitzgibbons's Case, 374 Mass. 633, 637 (1978). Similarly, compensation may be awarded for mental disorders or disabilities directly caused by mental trauma or shock arising out of employment looked at in any of its aspects. Id. at 637-638.
In that sense, I concur with the majority opinion that the standards of compensability for the physical manifestations of mental stress to wit: aggravation of her pre-existing gastrointestinal disorder, and for mental manifestations of the mental stress, to wit: aggravation of her pre-existing delusionary/paranoid disorder are identical.
In its discussion of causation logic, the majority raises and attacks a straw man. There is no indication in the opinion that the judge misunderstood the applicable causation principles.
The judge reached different conclusions on the mental and physical claims because the quality of evidence on the ulcer claim was significantly different from that presented on the psychiatric claim. Unlike the medical evidence regarding the ulcer showing immediate treatment following the allegedly causative work events, there is no evidence of contemporaneous medical treatment for a psychiatric problem. The first psychiatric evidence was given in a report by Dr. Leitner, dated November 12, 1986, almost two years after the alleged work injury. He examined the employee for state retirement benefit purposes. He diagnosed an ongoing delusional paranoia and wrote: "During our interview, various facets of her history were brought up related to her divorce, caring for her child, and difficulty at work." Dr. Leitner was "sure" that the employee's dismissal from employment contributed to her epigastric problem. He reported a history of having been dismissed at work because of her paranoid problem. Apparently at this time the employee was treating with a psychiatrist, Dr. Marilyn Helfenbin. Dr. Leitner commented: "I think Dr. Helfenbin's role will be more crucial because in my opinion the psychological problems are major at this time. . . . She cannot return to work because of the emotional tenseness of the situation but it is not clear to me how much of this is related to an underlying psychological problem." (Self-insurer Exhibit 2.) Significantly, the employee never produced an opinion from Dr. Helfenbin, her treating psychiatrist. Her psychiatric witness, Dr. Cutler, saw her once in 1990, five years after the allegedly causative events and apparently relied upon the questionable history of having been unfairly persecuted at work. (Employee Exhibit 2.) It is not surprising that the administrative judge found this evidence unconvincing.
The employee was first treated on January 21, 1985 by Dr. Mario Moretti for stress related abdominal problems. He diagnosed epigastric burning and referred the employee to Dr. Darrah, a gastroenterologist. Neither doctor who saw the employee contemporaneously with the commencement of alleged incapacity diagnosed a mental problem requiring psychiatric treatment.
The history of dismissal was inaccurate; the employee was given a written reprimand, not terminated. The employee took sick leave until it was exhausted and then filed the pending claim. (Dec. 10-11.)
Although the lack of immediate psychiatric treatment does not necessarily defeat the employee's mental injury claim, it is a legitimate factor for the administrative judge to weigh in making his factual determination about whether work actually caused a mental disability. It was not irrational or illogical for the judge to consider the timing between allegedly causative events and the occurrence of psychiatric treatment.
It was the administrative judge's function to weigh the medical evidence. He did so properly and concluded as a fact that he was unpersuaded by the employee's psychiatric expert. The record provides no basis for concern that he erred in this factual determination.
STANDARD OF REVIEW
Our standard of review is set forth in G.L.c. 152, § 11C, which provides in pertinent part:
The reviewing board shall reverse the decision of an administrative judge only if it determines that such administrative judge's decision is beyond the scope of his authority, arbitrary or capricious, or contrary to law. The reviewing board may, when appropriate, recommit a case before it to an administrative judge for further findings of fact.
This standard of review was created by St. 1991, c. 398, § 31.
Prior to the 1991 amendment to G.L.c. 152, § 11C, the Reviewing Board was permitted to weigh evidence but not to review determinations by the administrative judge who conducted the hearing regarding credibility of witnesses who had given testimony. Workers' Compensation Advisory Council Minutes of March 29, 1991 indicate that the change in the standard of review was intended to reverse the impact of the Lettich decision by limiting the Reviewing Board's scope of review. Bills with similar intent had been filed in the past (Senate 74, 76, 97 and 1894 and House 1418 and 3659 of 1990).
Lettich v. Kenway Jenney, 1 Mass. Workers' Comp. Rep. 184 (1987), aff'd as Lettich's Case, 403 Mass. 389 (1988).
The 1991 amendment to § 11C prohibits the Reviewing Board from weighing evidence or acting as a fact finder. This limited scope of review eliminates the second bite of the apple which the parties previously had before the Reviewing Board. Prior to the 1991 amendment, the Reviewing Board functioned in some respects as a second trial court rather than a strictly appellate court. The 1991 amendment clearly delineates the role of the Reviewing Board as an appellate body.
In 1991 when § 11C was amended, the Legislature also amended the scope of review of the Appeals Court set forth in G.L.c. 152, § 12. The new § 12 provides that any appeal from a Reviewing Board decision should be taken pursuant to G.L.c. 30A, § 14 except that clause E of subsection 7 shall not apply. Clause E of subsection 7 specifies "unsupported by substantial evidence" as grounds for the court to affirm, remand, set aside, modify or compel any action unlawfully withheld or reasonably made with respect to decisions. The Workers' Compensation Advisory Council Minutes of March 29, 1991 indicate that the change in § 12 was to make the appellate authority of the Reviewing Board consistent with that of the Appeals Court, by making the basis of review consistent. Prior to this change, all of c. 30A, § 14 applied to review of industrial accident decisions. This change to § 12 eliminates an additional reason for reversing a decision that had been previously available to the Appeals Court.
The new standard of review of the Appeals Court and the Reviewing Board significantly overlaps with the old substantial evidence standard. Without some factual support for a decision, an agency decision would be viewed as arbitrary. If supported by substantial evidence it is likely to be viewed by a court, reluctant to substitute its own judgment, as reasonable. Although the test under the old standard and the new standard would not reveal the same results in all situations, what both standards require of Department of Industrial Accidents judges is reasoned decision making within the particular statutory guidelines of G.L.c. 152. Robinson's Case 416 Mass. 454, 457-458 (1993). An administrative judge's decision is not arbitrary when it contains conclusions which are supported by factual findings not lacking in evidential support or tainted by error of law. Reis v. Anchor Motor Freight, Inc., 9 Mass. Workers' Comp. Rep. 82, 1995 WL 116806, slip. op. at 4-5 (1995).
The function of the Reviewing Board is not to judge the facts of the case but to review for hearing error. An appeal does not give losing litigants a "second bite of the apple": i.e., the parties cannot try the case again on appeal, cannot testify before the Reviewing Board, and cannot seek to persuade the Reviewing Board that they told the truth while their successful opponents lied. Losing litigants cannot "win" on appeal simply by showing that the "wrong party" prevailed at the hearing unless they can tie that result to reversible ("prejudicial") error.
Section 11C requires us to consider whether the administrative judge correctly applied the applicable law and whether the decision is not "[a]rbitrary or capricious," in the sense of having evidentiary and factual support and disclosing reasoned decision making within the particular requirements governing a workers' compensation dispute. G.L.c. 152, § 11C. If so, we must affirm it. Robinson's Case, 416 Mass. at 457-458 (1993), quoting with approval Howe v. Health Facilities Appeals Bd., 20 Mass. App. Ct. 531, 537 n. 6 (1985). See also Howe at 534 ("The more deferential `arbitrary and capricious . . . standard' requires only that there be a rational basis for the decision."). The power to remand for further findings should not be used to circumvent this restrictive standard of review, for so doing vitiates the 1991 reform.
Section 11B requires the administrative judge to set forth the issues in controversy, the decision on each and a brief statement of the reasons for each such decision. The purpose of the brief statement of reasons is to enable the Reviewing Board to determine whether the judge's order is based on correct legal principles and is not arbitrary or capricious.
The judge provided an adequate decision for appellate review. We should therefore not disturb the decision as it is adequately grounded in the record evidence and evidences no legal error.
CONCLUSION
The record supports the judge's factual finding of non-persuasion and his decision evidences no error of law. The decision should be affirmed. G.L.c. 152, § 11C.