The Full Board, at its meeting on September 17, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on December 13, 2012.
The issue presented for Mandatory Full Board Review is whether the credible evidence supports establishment of this claim for adjustment disorder, depression and anxiety.
The Workers' Compensation Law Judge (WCLJ) established the claimant's claim for adjustment disorder, depression and anxiety.
The Board Panel majority found that the WCLJ properly established the claim for adjustment disorder, depression and anxiety.
The dissenting Board Panel member found insufficient credible evidence to find that the claimant suffered from adjustment disorder, depression and anxiety due to his work situation.
On January 10, 2013, the self-insured employer (SIE) filed an application for Mandatory Full Board Review, arguing that the establishment of this claim is not supported by the evidence in the record.
On February 7, 2013, the claimant filed a rebuttal, arguing that the Board Panel majority's opinion should be affirmed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This is a controverted claim for adjustment disorder, depression and anxiety, which resulted from emotional stress extending over a period of approximately 3-1/2 months as a result of the alleged harassment of the claimant by his co-workers.
In a C-3 (Employee Claim) dated August 5, 2011, the claimant alleged that "Over a period of time I received harassing notes in my locker at work, harassment over the radio, and vandalism to my personal property."
During a hearing on November 15, 2011, the claimant testified that he worked for the SIE from 1993 until July 30, 2011. The claimant further testified that he began working for the SIE as a corrections officer, was promoted to a sergeant in 1998, and was appointed to the post of "Director of Professional Standards" and given the title of "Inspector" in 2005. According to the claimant, he lost his position as Director of Professional Standards, the fourth most senior position in the department, in 2008 when the position was eliminated. The claimant testified that he returned to his civil service position of sergeant until June 2009, when he was discharged for insubordination. According to the claimant, he entered into a grievance settlement with the union and returned to work as a corrections officer in January 2010. The claimant testified that he sustained a work-related shoulder injury and, as a result, was out of work from December 2010 to May 8, 2011.
The claimant testified that approximately two weeks prior to returning to work he went to his employer's premises to retrieve some items out of his locker. According to the claimant, there were two harassing letters in his locker. The letters were typed and anonymous. The claimant testified that every once in a while, after speaking over the radio, he would hear rat noises being made over the radio. The claimant specifically testified that on July 27, 2011, he called over the radio for an "extra breakfast meal, immediately following my transmission somebody responded with rat noises" (Hearing Minutes 11/15/2011, pg. 11). The claimant testified that on July 29, 2011, he worked a double shift from 7:00am to 11:30pm; that at the end of his shift he got into his truck and drove home; that he did not check his vehicle before leaving work; and that he parked his truck in the driveway. According to the claimant, the next morning when he went to get into his truck to go to work, he noticed that the word "rat" had been painted on the tailgate of his truck. The claimant testified that he went to work and reported the incident to his Lieutenant (L1). Specifically, the claimant testified that he said "Lieutenant I am going to need five minutes of your time today, I am going to need relief. I need to show you something in the parking lot, it's pretty important..." (id. at 15). According to the claimant, he never heard from the Lieutenant, so when his relief arrived he called the Lieutenant on the radio, but the Lieutenant didn't respond. The claimant went down to the Lieutenant's office, but the Lieutenant wasn't there, so the claimant just went home. The claimant testified that on August 1, 2011, another Lieutenant (L2) came to his house to see if he wanted to file an "Incident Form." According to the claimant he asked if he was required to file an "Incident Form," and the Lieutenant responded "no it's less work for me" (id. at 17). The claimant testified that the Lieutenant also presented the claimant with a letter from the Chief, requesting that the claimant come to his office for an interview to discuss the matter. According to the claimant, the Chief "took the allegation very seriously" (id. at 18). The claimant testified that he left a voice message for the Chief informing the Chief that he would not be coming in for an interview as his doctor had advised him not to return to the building. The claimant testified that on October 3, 2011, he received a manila envelope containing an anonymous, typed note informing the claimant that he will never get approved for 207-C; that if he comes back to work he will not receive back-up or support from his fellow officers; that the inmates will beat him to death; and that he is a rat who will be on his own. In addition, the envelope contained medical documents pertaining to another employee who had been out of work for stress.
On cross-examination, the claimant acknowledged that when working in the jail with the inmates he had always received support from his co-workers, and that while he felt he was being retaliated against, he was unsure who was retaliating against him.
Claimant's cross-examination was continued on January 10, 2012. On cross-examination, the claimant admitted that he spoke with a co-worker, a sergeant for the SIE, regarding the incidents that had been occurring; however, the claimant denied that he told his co-worker that he had been talking with a former co-worker about his 207-C claim, and specifically that he had asked the former co-worker how he had gone about pursuing the claim.
During the hearing on January 10, 2012, an officer for the SIE testified that he is "kind of the technical officer" and that the Chief Deputy requested that the witness review the facility radio tapes for July 27, 2011. According to the witness, he reviewed the tapes, but did not hear anything unusual. The witness testified that he informed the Chief Deputy of his findings, and the Chief Deputy requested that he review the tapes again for "rat or animal noise" (Hearing Minutes 1/10/2012, pg. 19). The witness testified that he reviewed the tapes again and that he did not hear any rat or animal noises. The representative for the SIE attempted to offer the tapes into evidence, but the representative for the claimant objected. The WCLJ sustained the claimant's objection, stating "if the claimant doesn't want to listen and doesn't want to dispute and doesn't want to analyze what's on the tape, I won't either" (id. at 22).
On cross-examination, the witness acknowledged that there was static on the tape and background noise; however, on re-direct, the witness testified that while the recording was not crystal clear, neither is the radio transmission when you are listening to it in real time. Specifically, the witness testified that "when they're transmitting, you're getting feedback" (id. at 29).
During the hearing on January 10, 2012, a Lieutenant for the SIE (L2) testified that the Chief Deputy requested that he go to the claimant's house on August 2, 2011, to investigate a possible criminal mischief complaint. The witness testified that the claimant did not wish to complete the "Standard Incident Report." On cross-examination, the witness stated that he and the claimant were both friends and co-workers. The witness indicated that the claimant's emotional state was normal in the past, but that the claimant looked upset when the witness arrived at the claimant's home. The witness further testified that the claimant mentioned that the Captain might be harassing him. The witness stated that he had listened to the radio transmissions as well, and that although some of the transmissions were a little scratchy or difficult to hear, the transmissions indicated that rat noises had not been made towards the claimant.
During a hearing on February 13, 2012, a sergeant for the SIE testified that she worked with the claimant and that the claimant informed her of the incident involving his truck and that people were making rat noises over the radio. According to the witness, she told the claimant that she never heard people making noises at him over the radio. The witness stated that she never heard anything negative about the claimant. The witness testified that the claimant told her that he had a discussion with a former co-worker regarding how he had gotten out on 207-C.
On cross-examination the witness, testified that she never heard any rat noises; that she was working on July 27, 2011; and that she was listening to her radio the entire time that she was on shift.
During the hearing on February 13, 2012, a former Chief Deputy for the SIE testified that he was instructed to investigate the claimant's allegations that officers were making rat noises over the facility radio system. The witness further testified that he asked an officer "to listen to the tapes to see if there was such a noise," and that the officer told him that "he had listened to the tape and could not hear any such noise" (Hearing Minutes 2/13/12, pg. 39). The witness testified that after he received the claimant's complaint that someone had vandalized his vehicle he sent a Lieutenant (L2) to the claimant's house to take a Standard Incident Report from the claimant. The witness testified that the claimant left a voice message for him at his office, stating that he would not come in to be interviewed, that he did not trust the methods of the investigation or the office and that he did not want to be involved. According to the witness, the claimant indicated that he wanted to handle it on his own. The witness testified that on August 10, 2011, he interviewed 46 officers, and that he asked each officer the following questions: have you ever witnessed or heard anyone harassing the claimant; and have you ever heard anyone make any kind of noises over the facility radio that would lead you to believe that they were meant to harass the claimant and/or anyone else. According to the witness, all 46 officers responded "no" to each of the questions. The witness testified that on August 15, 2011, he sent the claimant a certified letter informing him that the employer had finished its preliminary investigation of the claimant's allegations, and that in order to finish the investigation he needed to interview the claimant. According to the witness, the claimant signed for the letter but never responded to it. The witness testified that he spoke with a former employee, and that the former employee told him that he had spoken with the claimant and that the claimant had asked him about his stress-related situation. The witness further testified that the conversation that he had with the former employee was recorded.
On cross-examination, the witness testified that he personally interviewed all 46 officers and that he orally asked each officer the two questions that he stated on direct examination. According to the witness, each of the interviews was tape recorded. The witness testified that, as far as he knows, no other employee of the employer has complained about rat noises on the radio.
In a reserved decision filed on March 30, 2012, the WCLJ established the claimant's claim for adjustment disorder, depression and anxiety.
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 ).
In the present case, the claimant has provided testimony and evidence in support of his allegations regarding a number of acts of harassment that he claims were taken against him during his employment by the SIE. While the SIE has produced testimony and evidence in an attempt to refute the claimant's allegation that he heard rat noises being made over the radio, that a number of the claimant's co-workers denied hearing such rat noises, simply creates an issue of fact for the Board to decide. If the claimant's co-workers were actively or passively engaging in, or allowing, such harassment to take place, it is not unreasonable to believe that those same co-workers would attempt to deny the harassment, or discredit the claimant's allegations that such harassment took place. Furthermore, the claimant testified regarding a number of alleged acts of harassment aside from his assertion that he heard co-workers making rat noises over the radio.
Although the Board is entitled to make its own factual findings and is not bound by the credibility determinations of a WCLJ (see Matter of Ortiz v Five Points Correctional Facility, 307 AD2d 634 ), the credibility determinations of the WCLJ who heard the testimony are entitled to considerable weight (Di Donato v Hartnett, 176 AD2d 1102 ). Here, the WCLJ who heard the testimony of the claimant and other witnesses, and was able to observe their demeanor, found claimant to be credible.
In addition, based on claimant's credible testimony, the record supports a finding that the stress experienced by the claimant as a result of the acts of harassment he was subjected to was certainly greater than that which occurs in the normal work environment. Finally, the medical experts in this case all agree that if the claimant's descriptions of the incidents of harassment are accurate, such incidents caused him to suffer adjustment disorder, depression and anxiety.
Therefore, the Full Board finds that claimant developed adjustment disorder, depression and anxiety as the result of his employment, and that those conditions are the result of a compensable accidental injury within the meaning of the Workers' Compensation Law.
ACCORDINGLY, the WCLJ decision filed on March 30, 2012, is AFFIRMED. No further action is planned by the Board at this time.