The Full Board, at its meeting held on April 17, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on August 25, 2011.
The issue presented for Mandatory Full Board Review is whether the evidence supports establishment of a claim for anxiety and depression.
The Workers' Compensation Law Judge (WCLJ) found that the claimant suffered a compensable stress injury, and established the claim for situational anxiety, agoraphobia, panic, and depression.
The Board Panel majority affirmed the WCLJ's decision.
The dissenting Board Panel member would have disallowed the claim because the stress experienced by the claimant was not greater than that experienced by similarly situated workers.
On September 23, 2011, the self-insured employer (SIE) filed a request for Mandatory Full Board Review. The claimant did not file a rebuttal.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant worked as a keyboard specialist at a correctional facility. On August 27, 2010, the claimant filed a Form C-3 (Employee Claim), alleging that she suffered from high blood pressure, stress, anxiety, and depression, as a result of workplace harassment. The SIE controverted the claim.
The claimant, her co-worker, her former co-worker and the union local president testified at a hearing on January 10, 2011. The claimant testified that she had been working as a keyboard specialist for the SIE for six and a half years. She was out of work from June 2009 to March 2010, due to a non-work-related neck condition. When she returned to her job in March 2010, her previous supervisor had been promoted, and she was assigned to work for his replacement (New Supervisor). The claimant stated that, while she had never had any problems with her prior supervisor, except for absenteeism, the New Supervisor raised his voice to her and she could not do anything right. The claimant stated that the New Supervisor would say hello to her co-worker in the morning, but ignore the claimant. She testified that a co-worker told her that before the claimant returned to work the New Supervisor asked the co-worker to switch jobs with the claimant because he had heard things about the claimant.
The claimant cited three specific instances of the New Supervisor's harassing behavior. First, on the claimant's first day back at work, the New Supervisor asked the claimant to type up a letter and continually checked on her progress until she completed it. Second, on another occasion, the claimant was down the hall from her office and a co-worker came and told her to return to her office because the New Supervisor was yelling for her. Finally, on the claimant's last day of work, June 25, 2010, the New Supervisor called her into his office. When she stated that she wanted a union representative to accompany her, the New Supervisor said that wasn't necessary. The claimant testified that the New Supervisor wanted to discuss problems in the working relationship between the New Supervisor and the claimant. The claimant stated that the New Supervisor "wasn't exactly nice" and was disrespectful and loud. The claimant suffered an anxiety attack and could not return to work. The claimant stated that the New Supervisor would use profanity, but not directed specifically at her, and that he would sometimes yell at other employees. She also stated that she was never concerned for her safety.
The claimant testified that she had taken medication for depression for the past 18 years, arising out of two sexual assaults when she was fourteen and twenty-four years old. She stated that she has been diagnosed as suffering from depression, anxiety, and post-traumatic stress disorder as a result of the harassment by her New Supervisor.
The local union president (Union President) testified that he received a call from the claimant's co-worker that the claimant was in a meeting with the New Supervisor, and had asked that a union representative be present, but was told that was not necessary. The Union President arrived at the New Supervisor's office, but was not allowed into the meeting. He testified that the New Supervisor was harassing the claimant and speaking in a "boisterous" voice to her. The Union President overheard the New Supervisor tell the claimant that the matter was not to leave his office. The Union President noted that the claimant was not being disciplined. The Union President stated that he had filed a grievance against the New Supervisor after being told that the New Supervisor was asking the claimant's co-workers what they would say to the SIE's insurance investigators. The Union President believed that the New Supervisor's actions constituted interference with an investigation.
The claimant's co-worker (Co-Worker) testified that she still works with the New Supervisor, and that she only worked with the claimant for three months. The Co-Worker stated that the New Supervisor was nicer to her than he was to the claimant, and that he would give the claimant tasks and not explain them to her. When the claimant failed to do the task correctly, the New Supervisor would yell at her. She stated that she and the claimant were both keyboard specialists, but their jobs involved different tasks. The Co-Worker testified that the New Supervisor would often yell at the claimant and speak to her with a raised voice, but the Supervisor was prone to speaking loudly.
The claimant's former co-worker testified that she worked with the claimant before she left work in July 2009. The former co-worker stated that the claimant came to her five or six times to complain about the New Supervisor and the fact that he was demeaning, demonstrative and constantly yelling at the claimant. The former co-worker stated that she was outside of the New Supervisor's office during the June 25, 2010, meeting because the claimant's co-worker called her. She stated that the Supervisor's tone was unpleasant.
The New Supervisor testified at a hearing on January 10, 2011, that he started working for the employer in November 2009, after transferring from another correctional facility. The New Supervisor noted that he had spoken to the claimant's former supervisor about her work, but did not have any pre-conceived notions about her. He stated that he did not treat the claimant differently, and did not bring her up on disciplinary charges. The New Supervisor did, however, speak to her several times regarding the quality of work, and he would have to speak with her multiple times in order to have a task done properly. He noted that the claimant's work was consistently incomplete, inaccurate, and untimely. The New Supervisor also testified that the claimant was often absent and, as a result, they only worked together for a total of 45 days during the three month period that the claimant was assigned as the New Supervisor's secretary. The New Supervisor stated that, on June 30, 2011, he called the claimant into his office at the request of his supervisor, to whom the claimant had complained. He noted that the claimant requested a union representative be present, but the New Supervisor said that was not necessary because he was not disciplining the claimant. The New Supervisor did not know that the Union President wanted to be present, or that he was standing outside of the door during the meeting. He also denied saying that the claimant should not discuss their conversation outside of the office.
The claimant's treating physician, Dr. Gordon, testified by deposition on January 19, 2011, that he is the claimant's general practitioner. He examined the claimant on July 1, 2010, at which time the claimant reported that her boss was mean, shouting and demeaning to her and had never given her a chance. The claimant was distraught and tearful, stating that her boss was threatening to her. Dr. Gordon diagnosed the claimant as suffering from acute situational anxiety, caused by a difficult boss, and advised the claimant to stay out of work. Dr. Gordon noted that the claimant said that the New Supervisor had asked her for a file, which he claimed to have given to her, and became angry when she denied receiving it. The claimant then found the file, which had been given to another employee by the New Supervisor. Dr. Gordon commented that the Supervisor should have apologized to the claimant. Dr. Gordon noted that the claimant had been treated for anxiety and depression on and off for several years. The claimant had experienced marital problems in 2008, and her symptoms worsened at that time, requiring an increase in her anti-depressant medication. He noted that the claimant was sensitive, but not overly sensitive.
The claimant's treating psychiatrist, Dr. Olkowski, testified by deposition on February 9, 2011, that he first examined the claimant on September 22, 2010, at which time the claimant complained of panic attacks, agoraphobia, insomnia, and nightmares about her past sexual assaults, brought on by a hostile working environment. Dr. Olkowski noted that the claimant had begun drinking six to eight alcoholic beverages a day. Dr. Olkowski testified that the claimant's condition was caused by pre-existing chronic anxiety and depression exacerbated by her work environment. The claimant perceived her supervisor as being threatening and abusive, in that he raised his tone to her and treated her unjustly. Dr. Olkowski opined that the claimant cannot return to her former employment with the supervisor.
In a reserved decision filed March 16, 2011, the WCLJ established the claim for situational anxiety, agoraphobia, panic and depression. The WCLJ found that the claimant had been subject to hostile treatment by her supervisor and that she was singled out and treated harshly. The WCLJ set the claimant's average weekly wage at $619.25, found no compensable lost time from June 25, 2010, to July 2, 2010, and awarded temporary total disability benefits of $412.83 per week from July 2, 2010, through December 15, 2010, and temporary partial disability benefits of $258.02, from December 15, 2010, to April 13, 2011.
In order for a condition for mental stress to be found compensable pursuant to Workers' Compensation Law § 2(7), the stress experienced by the affected claimant has to be greater than that which similarly situated workers experience in the normal work environment (Matter of Parrinello v NYC Transit Authority, 47 AD3d 980, 981 ).
The case law makes clear that mental injuries caused by work-related stress are compensable only upon a showing by the claimant that the stress alleged to have caused the injury was greater than that which other similarly situated workers experienced in the normal work environment (Matter of Guess v Finger Lakes Ambulance, 28 AD3d 996 , lv denied 7 NY3d 707 ). This inquiry presents a factual issue for the Board to resolve and its determination, if supported by sufficient evidence in the record as a whole, will not be disturbed (Matter of Kopec v Dormitory Auth. of State of N.Y., 44 AD3d 1230 ).
The Full Board has reviewed the record and finds that the credible evidence demonstrates that the claimant was subject to stress greater than that normally found in employment as a secretary or keyboard specialist and that the WCLJ properly established the claim for situational anxiety, agoraphobia, panic attacks and depression due to stresses over and above those experienced by like employees and co-workers and made awards.
The claimant's credible testimony was that she was singled out and treated harshly by her supervisor between March 25, 2010, and June 25, 2010, that the testimony of her co-workers, her union president and her treating physicians supports a finding that she was purposefully treated differently by her supervisor, spoken to in a loud, demeaning and inappropriate manner, that she left the office on several occasions shaking, crying and visibly upset after such treatment and was ultimately diagnosed with situational anxiety and depression causally related to her treatment at work by her supervisor. The Full Board finds the testimony of the claimant's supervisor and the denial of this treatment of the claimant less credible and persuasive given the extensive testimony to the contrary.
Therefore the Full Board finds, upon review of the record and based upon a preponderance of the evidence, that the record supports establishment of the claim for situational anxiety, agoraphobia, panic attacks and depression arising out of hostile and abusive treatment by the claimant's supervisor. The Full Board further finds that the awards made by the WCLJ are supported by the record and will not be disturbed.
ACCORDINGLY, the WCLJ reserved decision filed March 16, 2011, and the decision filed April 18, 2011, are AFFIRMED. No further action is planned by the Board at this time.