Opinion
14-P-985
06-16-2015
GAIL S. WICKLOW'S CASE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is the insurer's appeal from a decision of the reviewing board (board) of the Department of Industrial Accidents (DIA) affirming an administrative judge's award of benefits to Gail S. Wicklow for the exacerbation of preexisting posttraumatic stress disorder (PTSD), caused by events in the workplace. We present the undisputed underlying facts supplemented by the findings of the administrative judge (judge), which were accepted by the board.
Background. Personal and family history. The judge characterized Wicklow's family background as "chaotic and difficult," largely as a result of an alcoholic and abusive father who abused her beginning at age three or four and who impregnated her at age fourteen. The father also sexually abused Wicklow's daughter when she was five years of age; the judge credited Wicklow's testimony that she did not remember her childhood abuse until she began counseling with her daughter after her daughter was abused. Wicklow then began counseling for PTSD. At the time she was confronted with her daughter's molestation, Wicklow was also having marital problems. In 2002 Wicklow's PTSD was triggered further when her oldest daughter wielded a knife in her presence. Wicklow was hospitalized for approximately ten days due to the PTSD and at that time separated from her husband, from whom she was divorced two years thereafter. Further PTSD-related hospitalizations followed, one in 2002 and a third in 2005, after which she was out of work for four months. The judge found that Wicklow's preexisting PTSD was undisputed, and was triggered in situations where she felt herself to be "unsafe."
Employment history and injury. Wicklow was employed as a registered nurse by Fresenius Medical Care Holdings, Inc. (Fresenius), beginning in 2000. She alleged an emotional injury arising out of at least ten encounters with management following the assignment of a new supervisor, Lisa Shay, beginning in 2006. These involved numerous scheduling issues related to daily start times, a request for bereavement leave, overtime, leaves of absence, use of per diem nurses, a class training session, and medical appointments. They also encompassed performance disputes on subjects including improper administration of dialysis treatment after it had been cancelled, and failure to disinfect a dialysis machine after use. These disputes and issues led to disciplinary action resulting in a warning and a three-day suspension in May of 2009. Thereafter Wicklow informed Fresenius that she was taking a six-week medical leave of absence; she has not returned to work since that time.
The judge credited the opinion of the impartial medical examiner and submissions made on Wicklow's behalf by three physicians. These supported her findings that the events at Wicklow's workplace, culminating in the disciplinary proceeding, were the "major and predominant" cause that triggered and exacerbated Wicklow's PTSD. The judge also found that Wicklow's symptoms have continued unabated since she left work and that they will continue in the future, rendering her totally disabled.
Discussion. Personnel actions. Relying principally on our recent decision in Upton's Case, 84 Mass. App. Ct. 411 (2013), the insurer asserts that the judge and the reviewing board erred in interpreting G. L. c. 152, §§ 1(7A) and 29. The pertinent language in both sections is the so-called "personnel action exception" that provides: "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." G. L. c. 152, § 1(7A), as amended by St. 1986, c. 662, § 6. G. L. c. 152, § 29, as appearing in St. 1985, c. 572, § 38.
Here, neither Upton's Case nor the statute avails the insurer. We begin with the observation that the judge carefully considered the circumstances underlying each of the encounters between Wicklow and Fresenius; in each case she determined whether the incident involved a "personnel action" and, if so, whether it was a "bona fide" personnel action.
We review the decision of the board affirming the judge under the applicable standards of the Administrative Procedure Act, G. L. c. 30A. See G. L. c. 152, § 12(2). We affirm the decision here unless we conclude it is based upon an error of law, is arbitrary or capricious or is an abuse of discretion. G. L. c. 30A, § 14(7)(c), (g).
Our review of the record leads us to conclude that the judge neither erred nor abused her discretion in arriving at her findings. The judge carefully reviewed the evidence and, essentially for the reasons set forth in her decision on pages 10-31 and 38-43, found that the behavior of Wicklow's supervisor exceeded the limits of appropriate workplace conduct. Crediting Wicklow's account of events as she was entitled to do, see Lettich's Case, 403 Mass. 389, 394 (1988), the judge specifically found, for example, that "screaming at the employee [was] a deliberate act of humiliation," that "to yell and scream at the employee" was not in good faith, that Wicklow was made a "scapegoat" so that the supervisor would not bear any part of the responsibility for the erroneous dialysis in August of 2008, that the supervisor made allegations of tardiness despite the fact that Wicklow was observing a schedule that had been agreed-upon in a written "corrective action plan," and that the disciplinary action of February 4, 2009, was "an act of retaliation" for the "not uncommon" practice of leaving a dialysis machine to be disinfected on the day after it was used.
This refers to the overtime dispute of December, 2007.
This refers to a request for time off in July of 2008.
We are unpersuaded by the insurer's argument that so long as the employer can point to a violation of policy, a personnel action is rendered "bona fide" regardless of the manner in which it is imposed. See Dube's (dependent's) Case, 70 Mass. App. Ct. 121, 130 n.9 (2007).
The judge also noted that Wicklow had presented an unblemished personnel record under her prior supervisor: "Ms. Cahill was the employee's supervisor for twelve years and each year, like all other employees, she evaluated the employee's performance. She testified that the employee was a good nurse, and that she was competent, meticulous, cooperative, and easy to work with. She never disciplined the employee."
The judge's findings dramatically distinguish the circumstances in this case from "[f]airly conducted inquiries" that "furnish the employee the opportunity to refute suspicion or criticism and the employer the information necessary for accurate personnel decisions." Upton's Case, 84 Mass. App. Ct. at 418.
In its review of the judge's decision, the board noted that the result here did not depend on her determination that almost all of the adverse encounters between Wicklow and Fresenius fell outside the parameters of a "personnel action." We agree with the board's assessment that "[t]here was thus more than ample support in the record for the judge's findings that the identified events, even if all were considered as personnel actions, were not bona fide actions."
We disagree with Wicklow's characterization of the employer's actions as failing to meet the "bona fide" test because there were errors in the basis for disciplinary action. Good faith mistakes preclude neither determining that employer behaviors qualify as personnel actions nor findings that they were bona fide. Upton's Case, 84 Mass. App. Ct. at 419 (Legislature intended to restrict compensation where "emotional injury attributed to good faith personnel actions").
Finally, we note that there was also ample support in the record for the finding that the disciplinary action of May 14, 2009, "'triggered' [Wicklow's] PTSD." The judge noted that the impartial medical examiner chosen by the DIA pursuant to G. L. c. 152, § 11A, Dr. Marc Whaley, "testified that the . . . events at work became the major and predominant cause of the exacerbation of PTSD. He testified that as of the date of his evaluation, . . . the employee was totally disabled from gainful employment."
Intentional infliction of emotional distress. The insurer asserts that the judge's finding of intentional infliction of emotional distress with respect to Wicklow's request for bereavement leave is unsupported by the evidence. The board determined, and we agree, that this finding is extraneous; the decision does not rest upon it. The standard of malicious behavior required to support a finding of intentional infliction of emotional distress is far greater than the absence of good faith necessary to support the finding that a personnel action was not bona fide. This determination by the judge was by no means essential to the decision. Compare Alba v. Raytheon Co., 441 Mass. 836, 841 (2004) (discussion of elements required to establish collateral estoppel). Like the board, we decline to address the issue.
The employee appropriately conceded this point at oral argument.
The insurer argues that because the intentional infliction of emotional distress can never be part of bona fide personnel action, it follows that any employer behavior related to a personnel action that falls short of intentional infliction of emotional distress must always be bona fide. We decline to adopt this demonstrably faulty approach. The statute simply creates an exception for "intentional infliction of emotional harm" even when an employer's conduct is related to a bona fide personnel action. G. L. c. 152, § 1(7A).
Decision of reviewing board affirmed.
By the Court (Grainger, Hanlon & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 16, 2015.