Skip to Content

Workers' Compensation Board

Language Assistance: (877) 632-4996 | Language Access Policy

 


Case # G1222886
Date of Accident: 09/29/2014
District Office: NYC
Employer: RICS Americas
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 67550277
Date of Filing of Decision: 09/06/2016
Claimant's Attorney: Klee, Woolf, Goldman & Filpi, LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on July 19, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed March 29, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's claim for post-traumatic stress disorder (PTSD) and anxiety disorder is compensable.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim, finding that the claimant did not sustain stress greater than that which other similarly situated workers experience in the normal work environment.

The Board Panel majority disagreed, finding that the stress experienced by the claimant was greater than that which other similarly situated workers experienced in the normal work environment, and established the case for PTSD and anxiety disorder.

The dissenting Board Panel member agreed with the WCLJ that the stress suffered by the claimant was no greater than that which other similarly situated workers experience in the normal work environment and would have found that the WCLJ properly determined the claimant's injury is not compensable.

On April 26, 2016, the carrier filed a request for Mandatory Full Board Review.

The claimant filed a rebuttal on May 24, 2016.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This is a controverted claim for PTSD and anxiety.

The claimant filed a form EC-3 (Employee Claim) indicating that on September 29, 2014, the claimant, a business assistant, was setting up a WebEx class when she was "harassed by managing director for requesting technical assistance. Closed conference room door, angrily brushed index finger below right cheekbone. Rubbed against right breast." The claimant alleged that as a result she suffered severe anxiety, heart palpitations, shortness of breath, constant jittery feeling in her stomach, difficulty concentrating, sleep disturbance, and migraines.

During a hearing on March 3, 2015, the WCLJ found prima facie medical evidence for PTSD and anxiety disorder pursuant to a November 3, 2014, medical report from the claimant's treating psychologist, Dr. Da Silva. The WCLJ further found that Workers' Compensation Law (WCL) § 25(2)(b) applied, as the carrier failed to timely file a First Report of Injury (FROI-04). The WCLJ set the case for trial with the testimony of the claimant only, as the carrier had failed to identify any witnesses on its Pre-Hearing Conference Statement. The WCLJ's findings were memorialized in a decision filed March 6, 2015.

Dr. Da Silva was deposed on April 14, 2015. Dr. Da Silva testified that he first treated the claimant on November 3, 2014. The claimant provided him the following history of the incident: the claimant called her manager and he came in, closed the door, and, "he verbal[ly] insult her and he scream to her and then put a finger in her cheek. And then she panic[ed]." The claimant further reported that after the manager left the room, she was very fearful, shaking, and terrified of the manager. The claimant indicated that she had attempted to go back to work a couple of days after the incident, but was unable to "because she was feeling very anxious about being in the same place that [the manager] was." The claimant reported being dizzy, having headaches, and that she was terrified of being stricken. The claimant experienced other PTSD symptoms such as heart palpitations and sweating. He diagnosed the claimant with PTSD and anxiety disorder causally related to the September 29, 2014, incident.

The matter came on for trial at a hearing on May 5, 2015, before a different WCLJ than had previously handled the claim. At the beginning of the hearing, the WCLJ precluded the carrier from producing an IME based on the carrier's failure to produce an IME as previously directed.

During the hearing, the claimant testified at length concerning the events giving rise to her claim. Specifically, she described setting up a web training class on September 29, 2014, and encountering technical difficulties. After the claimant and another employee were unable to resolve the issue, the claimant asked the supervisor for assistance. The supervisor provided help, and then left the claimant alone to finish her task. The claimant subsequently experienced another technical issue. She ran out of the room and called to her supervisor in a panic, saying she needed help with the computer. The supervisor "angrily sprang" up and followed her back into the room, closing the door behind him. The claimant's testimony included some physical demonstration of distances and gesturing as she described how the supervisor stepped forward, pointing his right index finger into her face, and stated, "Listen, listen, listen, nobody speaks to me like that." The claimant stated that she put her hands up to create a shield and was backing away when the supervisor, "rushed in and then came brushed up against my right breast...like how a predator snatches up a prey...He then rushes in and then brushes up against me and said, 'You panicked.' ... And then he fixed whatever it was and he just stormed out of the room." The claimant went on to give details of a second incident later that day when she met with the supervisor in his office and "he lost his temper again and the finger in my face, 'Do your job.'" The claimant responded that she was going home early. Upon being asked why she was leaving early by the supervisor, she replied, "it's just one of those days." She could not recall how she got home that day. She remembered being overwhelmed with anxiety, and then waking up in the middle of the night feeling like she was drowning. On October 10, 2014, she had to leave work early again after she became overwhelmed with anxiety and fear because her supervisor had started yelling at her over the phone. With the exception of one other person, she never witnessed the supervisor yell at anybody. Upon being asked if anybody yelled at work, she replied, "Nobody. That wasn't the environment. Everybody was more jovial, happy."

At the conclusion of the claimant's testimony and summations, the WCLJ initially found that the undisputed medical evidence supported the claim and that the claimant credibly testified. However, the WCLJ further found that the incident did not involve stress greater than that which other similarly situated workers experience in the normal work environment, as it was a verbal altercation. The WCLJ found that the claimant was inadvertently poked in the face and hit in the body, and these were not sexual harassment. The WCLJ disallowed the claim. The claimant noted an exception on the record. The WCLJ's findings were memorialized in a decision filed May 11, 2015.

LEGAL ANALYSIS

"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 [2003])" (Matter of Jones v New York State Dept. of Correction, 35 AD3d 1025 [2006]; see also Matter of Ridgeway v RGRTA Regional Tr. Serv., 68 AD3d 1219 [2009]).

"[A] mental injury precipitated solely by psychic trauma may be compensable in workers' compensation" (Matter of Guess v Finger Lakes Ambulance, 28 AD3d 996 [2006], lv denied 7 NY3d 707 [2006] [citations omitted]). "[A] claim for work-related stress cannot be sustained absent a showing that the stress experienced by the affected claimant was greater than that which other similarly situated workers experienced in the normal work environment" (Matter of Spencer v Time Warner Cable, 278 AD2d 622 [2000], lv denied 96 NY2d 706 [2001] [citations omitted]). "This inquiry . . . presents a factual issue for the Board to resolve and its determination, if supported by substantial 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 [2007] [citation omitted]).

A claim for mental stress and anxiety based on an office manager's anger and use of profanities while yelling at people in the office was properly denied because the claimant did not show that the stress she suffered on the day in question was any "'greater than that which usually occurs in the normal work environment' (Matter of Charlotten v New York State Police, 286 AD2d 849 [2001], quoting Matter of Troy v Prudential Ins. Co., 233 AD2d 635 [1996] [citation omitted])" (Matter of Clark v Oswego County Self Ins. Plan, 17 AD3d 882 [2005]). In Clark, the Court found that "the office manager's outburst was an isolated event, that he had not been physically threatening and that he had not actually directed his tirade at her but, rather, at another coworker" (Clark, 17 AD3d 882 [2005]). Further, "the office manager acknowledged that his behavior that day had been inappropriate and that he had apologized to claimant afterward. It was also established that arguments between coworkers in the office in which voices were raised and profanities used were not unusual and that claimant had been involved in such arguments in the past" (id.).

Here, unlike Clark, 17 AD3d 882 [2005], not only did the claimant credibly testify that her supervisor yelled at her, but that he also physically touched her while yelling (i.e. angrily pointing his right index finger into her face and brushed up against her right breast). The claimant further testified that the supervisor shut the door leaving her alone in the office with just the supervisor. Based on the claimant's testimony, the supervisor engaged in similar aggressive conduct toward the claimant a second time later the same day as the initial incident. The claimant also testified that she witnessed the supervisor yell at one other person, nobody else yelled at work, and that the work environment was jovial and happy.

Therefore, the Full Board finds that the preponderance of the evidence in the record, including the medical opinion of Dr. Da Silva and the claimant's credible testimony, supports that the supervisor's conduct, particularly his physical contact with the claimant, even if inadvertent, cannot be considered that which usually occurs in the normal work environment, and that such conduct caused stress to the claimant, rendering the claim compensable. The supervisor's conduct went beyond mere yelling and using profanity, and went beyond what similarly situated workers would be expected to experience in the workplace.

The Full Board further finds that the record supports establishing the claim for PTSD and anxiety disorder.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed May 11, 2015, is REVERSED. The claim is established for PTSD and anxiety disorder. The case is restored to the hearing calendar for a determination on the average weekly wage, appropriate awards, including attorneys' fees, and any other outstanding issues. The case is continued.