The Full Board, at its meeting on February 26, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on January 30, 2012.
The issues presented for Mandatory Full Board Review are:
The Workers' Compensation Law Judge (WCLJ) established the case for panic disorder and stress disorder caused by workplace harassment with a June 22, 2010, date of accident.
The Board Panel majority affirmed the WCLJ, finding that the claim is not time barred by WCL § 28, and that claimant was subjected to stress beyond that which would occur in the normal work environment.
The dissenting Board Panel member would find that the stress experienced by the claimant was not any greater than the stress experienced by similarly situated workers in the usual correctional facility work environment, and that the claimant's experience appears to involve good natured teasing and ribbing, rather than harassment, which does not rise to the level of compensable mental injury under WCL § 2(7).
On February 28, 2012, the State Insurance Fund (SIF) filed an application for Mandatory Full Board Review, arguing that the claim is time barred by WCL § 28 because the conduct by the claimant's coworkers commenced in 2005, he experienced symptoms, sought treatment, and received medication in 2006, and he told his physician that the psychological stress was caused by harassment at work. Therefore, SIF asserts that the claimant's filing of his claim in August 2010 is untimely. It also asserts that the harassment experienced by the claimant did not rise above the normal bantering present in the correctional facility environment. SIF also indicates that the Memorandum of Decision requires correction because it fails to provide the proper amount of employer reimbursement as the decision affirmed the March 16, 2011, award to claimant for the period August 10, 2010, to March 11, 2011, at $416.67, despite the filing of a claim for employer reimbursement on January 11, 2011.
On March 28, 2012, the claimant filed a rebuttal, asserting that the years of continued harassment and abuse and the comments made by a co-worker were not common practice among the staff. The claimant also states that he presented evidence of an incident of psychological trauma occurring on June 22, 2010, the circumstances of which constituted an accident within the meaning of the law. According to the claimant, he gave notice of the accident and suffered a causally related panic attack and stress disorder. He argues that the statute of limitations provision of WCL § 28 does not bar this claim.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, then a 42 year old year old corrections officer, filed an Employee Claim (EC-3) on August 6, 2010, in which he stated that he had a panic or anxiety attack on June 22, 2010, as a result of harassment at his workplace.
The carrier controverted the claim. In its C-7 form, the carrier did not raise the issue of timely filing under WCL § 28. The carrier's Pre-Hearing Conference Statement also failed to raise the defense of untimely claim filing pursuant to WCL § 28. However, the SIF raised the defense of untimely claim filing at the pre-hearing conference.
At the hearing on January 25, 2011, the claimant testified that he has worked for the employer since October 6, 1997, at Otisville Correctional Facility. He was friendly with a Sergeant who was a supervisor. In 2004, he began being verbally harassed at work about his friendship with the Sergeant. He stated that a co-worker started to refer to him as "J-Lo" because the claimant's first name started with the letter J and the Sergeant's last name was "Lopez." In addition, there was abnormal "ribbing" that would go on at the jail. The verbal harassment continued and intensified. In 2005, the Sergeant, with whom he had a friendship, needed a ride to work and the claimant began driving him to work. The statements made by more than ten co-workers to the claimant became nasty, and included name-calling such as "suck-ass" and "kiss-ass." Co-workers called the claimant the "Sergeant's son" and stopped talking to him. In early 2006, the claimant was asked by the Deputy Superintendent of Security to work on the accreditation process. As a result, the work environment worsened. No one talked to the claimant but the name calling continued. In 2006, there were four episodes where the claimant found obscene statements such as "You're a suck-ass" written on his time card. There were occasions (twelve instances) when his time card was missing after he had submitted it. The claimant had difficulties with the time cards periodically over a number of years until early 2010.
Supervisors were also involved in inappropriate conduct. One Sergeant called him "J-Lo" and informed ten officers who had lined up to receive assignments that the claimant was on anti-depressants and stated "we don't want to hurt his feelings, so let's take it easy on him." In fact, the claimant was on medication at that time and the Sergeant was aware of it because earlier in that week, prior to the incident, the claimant confronted the Sergeant about calling him "J-Lo." The claimant indicated something to the effect that he did not call him "Sergeant A-Hole" so he expected the Sergeant to call him nothing other than Officer (claimant's last name). The very next day the claimant apologized to the Sergeant for the "A-Hole comment" and revealed to him that he was taking anti-depressants which caused him to have mood swings. (Hearing Transcript, 1/25/11, pp. 10-13). In 2010, the claimant began to receive harassing and obscene telephone calls. One message stated that if anything ever happens to him in the jail, he was going to be alone.
On June 22, 2010, while entering work, an electrician for the employer stated to the claimant that he heard that the claimant went to lunch with the deputy (Deputy Superintendent of Security) and made a lewd comment in connection with that lunch. The claimant stated that he became extremely angry to the point where he was about to cry. He experienced a panic attack, his heart was beating out of control, his hands were sweating, and he experienced confusion. The claimant attempted to perform his work and, when the acting administrator came to the claimant's office, and asked him what was wrong, the claimant broke down. He was taken to the Captain who told the claimant to take a break. The claimant did so and, thereafter, returned to the work site and left for the day. He called Dr. Ramirez that night. He began to have panic attacks in 2005 or 2006 after the abuse at work started. The claimant filed a grievance in 2008 stating that he could no longer endure all the abuse. In approximately September 2009, he attempted to transfer to another facility. He met with the Superintendent and Deputy Superintendent who assured the claimant that he would not be bothered by anybody if he reported directly to them. However, the abuse continued and he so informed the Superintendent or Deputy Superintendent.
The claimant first treated with Dr. Smith for psychiatric conditions in 2005 or 2006. He told the doctor that he was constantly being harassed at work. It was Dr. Ramirez who told him that his condition was work related. The claimant stated that he spoke to Sergeant who told the claimant to ignore the behavior.
Four employer witnesses testified at the hearing which took place on March 11, 2011.
An electrician for the employer testified that on June 22, 2010, he and a fellow employee were getting ready to punch in. They had heard that the claimant had lunch with the Deputy Superintendent of Security, and the witness asked the claimant how lunch was. The witness described the claimant's actions/response as "a tirade." The claimant called the witness a non-essential employee and a slow driver and stated that the witness carried the same piece of equipment in his van for the last 20 years. The witness also stated that the claimant made an obscene gesture and statement. The witness denied making an obscene statement to the claimant.
A locksmith for the employer testified that he observed the incident between the electrician and the claimant on June 22, 2010. The witness stated that he and electrician were getting ready to punch in that morning and the claimant was making comments to the electrician about how he drives and that he is a non-essential employee. The electrician then asked the claimant how lunch was with the "Dep." According to the witness, the claimant yelled an obscene statement to the electrician. The witness acknowledged that his written statement did not contain anything about the electrician asking the claimant about lunch with the "Dep." The witness denied that the electrician made an obscene statement regarding the claimant's actions toward the Deputy Superintendent of Security.
A Lieutenant at the facility testified that he was the watch commander and he received a call from the recreation civilian at the facility stating that the claimant was distraught and upset over a comment that the electrician made, and that the claimant wanted to go home. He did not recall noting in his written statement that the claimant was on the verge of crying. He denied that he was aware that workers teased the claimant about getting preferential treatment. However, after reviewing his written statement, he acknowledged such an awareness. He initially denied that he pulled the claimant aside on one occasion to let him know that it was not good to give the appearance that he was driving to work with Sergeant L. He acknowledged, however, that this was included in his written statement. He was aware that the claimant was the subject of "good-natured" teasing.
A Captain at the facility testified that the recreation civilian entered his office with the claimant and that the claimant was upset due to words and insults being exchanged between the claimant and the electrician. The witness suggested that the claimant take the witness' truck and go for a ride to calm down. The claimant returned in less than an hour and told the Captain that he was much better and did not want to go home. The claimant wanted to return to his job. The Captain asked the claimant if he wanted to talk about the incident, which the claimant declined. The witness viewed the claimant as calm and functional at that time, and permitted the claimant to return to his job. Since the claimant was quiet, the witness felt that the claimant was upset. He did not recall anything about the claimant's appearance being flushed or emotional. However, he acknowledged that in his written statement he noted that the claimant was flushed and emotional. He acknowledged that prior to the incident the claimant was subject to teasing by other employees based on preferential treatment by Sergeant L.
The medical reports filed with the Board include an August 10, 2010, report of Dr. Conciatori which refers to the claimant's feelings of panic, anxiety and depression brought on by job harassment which has been going on since 2007, but which peaked in 2010. Dr. Conciatori diagnosed the claimant with adjustment disorder with mixed disturbance of mood, depression and anxiety. He opined that the claimant is too symptomatic to return to his job as a Corrections Officer.
In a November 30, 2010, letter, Dr. Cancro stated that the claimant reported being harassed on the job for the last two years and concluded that the job related environment and associated stresses produced his condition.
SIF's consulting psychiatrist, Dr. Citrome, examined the claimant on January 3, 2011. The doctor's report provides the history that the claimant experienced his first episode of feeling his chest was exploding, numbness in his arms, shortness of breath, diaphoresis and dizziness about five years ago. He provided the opinion that the claimant's panic disorder is causally related to the stressors encountered at his work place for the past several years. He stated that the claimant's return to Otisville Correctional Facility would be counterproductive to his recovery and his therapeutic rehabilitation should include an attempt to work at a different facility.
By Notice of Decision filed March 16, 2011, the WCLJ established accident, notice and causal relationship for the claimant's panic disorder and stress disorder caused by work place harassment. The WCLJ also found no clear evidence of a work-related diagnosis until after the June 22, 2010, incident, and found that the carrier's arguments regarding WCL § 28 are without merit. Awards were directed for the period from August 10, 2010, to March 11, 2011, at the tentative rate of $416.67, and continuing. SIF was directed to produce forms C-240 and C-11, and a reimbursement request.
"To establish an accidental work-related condition that developed over time, rather than from a sudden event, claimant was required to demonstrate by competent medical evidence that his condition resulted from '"unusual environmental conditions or events assignable to something extraordinary"' at his work place (Matter of Harrington v Whitford Co., 302 AD2d 645 , quoting Matter of Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129 ; see Matter of Engler v United Parcel Serv., 16 AD3d 969 , lv denied 5 NY3d 705 )" (Matter of Mazayoff v A.C.V.L. Cos., Inc., 53 AD3d 890 ).
The concept of time-definiteness required of an accident can be thought of as applying to either the cause or the result, so that there can be a compensable accident where there is an exposure to a condition over a protracted period during which the victim succumbs to a disease culminating in a relatively sudden collapse (Matter of Middleton v Coxsackie Correctional Facility, 38 NY2d 130 ).
When an accidental injury accrues gradually over time as the result of repetitive trauma or exposure, the Board must select the appropriate date of accident. The Board is not obligated to set the date of accident as the date of last exposure, and may instead opt to set the accident date of the date the claimant first experienced symptoms, sought treatment, or sustained lost time from work (Matter of Par Plumbing, 2010 NY Wrk Comp 40610380).
A mental injury caused solely by psychic trauma is compensable as a matter of law when the circumstances constitute an accident within the meaning of the Workers' Compensation Law (Matter of Haydel v Sears, Roebuck & Co., 106 AD2d 759 ). A mental injury need not be caused by a discrete identifiable psychic trauma, but can result from emotional stress extending over a period of months (Matter of Velazquez v Triborough Bridge & Tunnel Auth., 156 AD2d 922 ). Not all mental injuries suffered on the job are compensable, and in order for a claim to be viable, the stress must be greater than that which occurs in the normal work environment (Matter of Troy v Prudential Ins. Co., 233 AD2d 635 ).
Bullying, harassment, and mean-spirited actions and remarks should not be part of any normal workplace experience. The conduct of the claimant's co-workers was over and above the normal expected stresses of any similarly situated corrections officer. Ribbing and joking is one thing, but showing up to work and having your time card go missing, or having "You're a suck-ass" written on your time card, and being left a message that says if "anything ever happens to him in the jail, you are going to be alone" as well as being belittled by a superior in front of fellow officers for taking anti-depressants goes beyond normal ribbing. Moreover, the evidence is clear that the claimant was singled out as the target of repeated obscenities by virtue of his friendship with a sergeant. The employer witnesses admitted that the claimant was the subject of teasing due to the preferential treatment he received from Sergeant L.
SIF's consulting psychiatrist, Dr. Citrome, opined that the claimant's panic disorder is causally related to the stressors encountered at his work place for the past several years. He stated that the claimant's return to Otisville Correctional Facility would be counterproductive to his recovery and his therapeutic rehabilitation should include an attempt to work at a different facility, thereby further confirming that the claimant's stress occurred from events assignable to something extraordinary that occurred at that particular correctional facility.
In addition, the case is not time-barred by WCL § 28. While the claimant testified to ridicule from other workers due to his friendship with a sergeant over the years, he testified to specific and particularly vulgar statements made by a co-worker on June 22, 2010, that precipitated a panic attack and his break down. It was after this incident that the claimant was unable to return to work.
Based upon a review of the record and the preponderance of the credible evidence, the Full Board finds that the claimant sustained a mental injury caused by stress greater than that which occurs in the normal work environment; that claimant's accident date is June 22, 2010; and that the claimant's filing of his claim on August 6, 2010, was within the two year statute of limitations.
Furthermore, the Full Board notes that although SIF's request for employer reimbursement was timely filed, the request that the awards be adjusted to reflect employer reimbursement was not raised in its application for administrative review nor was it raised at the March 11, 2011, hearing. Therefore, the issue is not preserved for review.
Accordingly, the WCLJ decision filed on March 16, 2011, is AFFIRMED. No further action is planned by the Board at this time.