S T A T E O F M I C H I G A N WORKERS' COMPENSATION APPELLATE COMMISSION V DOCKET # OPINION

Transcription

1 CAROLYN A. ASH, PLAINTIFF, 1998 OPINION #238 S T A T E O F M I C H I G A N WORKERS' COMPENSATION APPELLATE COMMISSION V DOCKET # TECHNICOLOR, INCORPORATED, AND ARGONAUT INSURANCE COMPANY, DEFENDANTS. APPEAL FROM MAGISTRATE WIERZBICKI. ROSEMARY K. WOLOCK FOR PLAINTIFF, DEBRA S. HIRSCH FOR DEFENDANTS. WITTE, COMMISSIONER OPINION This matter is before the Workers Compensation Appellate Commission on appeal by plaintiff from the decision of Magistrate John M. Wierzbicki, mailed August 29, 1995, denying benefits for her claim of mental disability. Plaintiff alleged it was the improper discrimination by the company that aggravated her pre-existing condition to the point of disability. The magistrate denied this claim as being based on misperceptions, not reality. Plaintiff alleges one issue on appeal, that the decision of the magistrate that plaintiff failed to preponderate an employment-related psychiatric disability is not based on competent, material and substantial evidence on the record as a whole and should be reversed. We affirm, since we find appropriate support for the magistrate s conclusions. Plaintiff was employed by defendant until July 17, This defendant employer purchased the predecessor company on August 3, Plaintiff began employment with the predecessor beginning December 9, Plaintiff has only sued the later company which, according to the magistrate, means that events plaintiff catalogued prior to the purchase date are not relevant for purposes of liability. Specifically, plaintiff complained of a meeting which took place in February 1986 where she was emotionally lynched. Her supervisor called the meeting in which her co-workers, whom she was training, were permitted to express their feelings to her. Plaintiff stated that her supervisor did not control the meeting, the co-workers said many unkind

2 things, and plaintiff walked out. The magistrate added that plaintiff felt that she was resented by the others because she was Black. Shortly after this meeting, another event took place which plaintiff also blamed for causing her mental disability. Plaintiff was transferred to the tape loading department and she stated this transfer was due to her race. In June 1986, she was promoted to lead tape loader. In July 1991, when raises were given, an event occurred which caused plaintiff to leave her employment with defendant. Two percent cost of living raises were given to every employee and an additional two percent raise was given to superior employees. Plaintiff did not receive a four percent raise and believed that this was due to racial discrimination. However, the testimony at trial, as found by the magistrate, did not support this perception. In 1991, plaintiff estimated, defendant employer had 600 employees. Only 19 were given merit raises. We note that the magistrate found that Michael Skinner, whose testimony is summarized below, said that 19 of 400 employees received merit raises. In either event, the ratio is very small. Plaintiff s supervisor, David Lamerson, testified, according to the magistrate, that plaintiff s performance was: adequate, not exceptional or outstanding. When [Mr. Lamerson] had to be away from the department from time to time, he would choose another supervisor or lead person to fill in for him, but he did not choose the Plaintiff. He noted that the Plaintiff needed assistance from others, on occasion, and she was somewhat unable to make important decisions. This is also why he had not recommended her for a promotion. When he was asked by the General Manager to recommend employees for merit raise increases,... he did not recommend the Plaintiff. Nor did he recommend merit raises for any of the 18 people under his supervision, as none had done superior work. The Plaintiff was not turned down for a merit raise due to her race or gender. William Van Horn also testified. He was the tape loading supervisor for the third shift. He said that of the 24 people in his department, only one was recommended for the merit raise. While plaintiff had testified that Mr. Van Horn said he would have recommended her for a merit raise if she worked for him, Mr. Van Horn denied this. The magistrate wrote: 2

3 The witness is Black. He stated that he would not have recommended Plaintiff for a raise because, to his knowledge, she did not handle people well and was somewhat coarse and threatening. There were other lead tape loaders, besides the Plaintiff, who were Black. As far as he was concerned, race or gender was not part of the decision-making process regarding merit raises. Gary Smuda testified. He was defendant s day shift production manager and had known plaintiff about five years at the time of hearing. He said that even if her supervisor had recommended her for a merit raise, he would have questioned it because, according to the magistrate, he did not feel she was capable of taking charge in her supervisor s absence. Finally, testimony was received from Michael Skinner, defendant s Human Resources Manager. The magistrate found that, according to Mr. Skinner, sometime prior to May 1988, plaintiff had applied for a clerical position and was rejected: The Plaintiff was not denied the position due to her race or gender. In fact, a Black female obtained the position. Since 5/88 there are no other job applications in Plaintiff s file. Mr. Skinner noted that plaintiff made no complaints about race or gender discrimination while employed nor while she was on disability leave (starting 7/19/91) for her depression. There were no grievances in her personnel file. Mr. Skinner first learned of this claim in her application for benefits to the bureau, received October 28, The magistrate analyzed the medical testimony of three examining psychiatrists and weighed their diagnoses of depression and panic disorder. Dr. J. Barry Rubin, who examined the plaintiff on one occasion, testified for plaintiff and diagnosed a major depression, recurrent type, with anxiety features, and secondary to her employment conflicts. The doctor directly attributed the recurrence of the depression to plaintiff s perception of discrimination. Further, the magistrate summarized, the doctor opined, Assuming she was the victim of race and sex discrimination, the stressors in the job precipitated the recurrent episode of her major depression, from which she still suffers. He gave a guarded prognosis. Dr. Ahmad Kafi also testified for the plaintiff. He had treated the plaintiff for major depression in 1977 due to marital conflicts. He diagnosed a major recurrent depression, with obsessive compulsive personality features. The magistrate wrote that Kafi believed that the Plaintiff s difficulties at work significantly aggravated her depression, a pre-existing condition, resulting in total disability. Dr. Edward R. Klarman examined plaintiff for defendants. He diagnosed Panic Disorder, with a great deal of underlying anxiety, with possible agoraphobia. Such a condition is bio-chemical and would have no relationship to the work place. 3

4 The magistrate applied section 301(4) as interpreted by Gardner v Van Buren Public Schools, 445 Mich 23 (1994), to these facts and concluded that the Plaintiff suffers from a disabling mental condition. He preferred the testimony of Drs. Rubin and Kafi as more compelling, especially so the testimony of Plaintiff s long-time treater, Dr. Kafi. The next hurdle, he wrote, would be whether Plaintiff s employment aggravated her pre-existing major depression. He concluded it did not. He pointed out that the 1986 meeting occurred prior to this defendant s existence, and that the clerical payroll assistant position for which plaintiff applied was in fact filled by a black female. The magistrate stated that the third event which plaintiff claimed demonstrated discrimination, her failure to receive a merit raise, was misperceived by her: The only fact that is clear is that the Plaintiff did not get a merit raise. She has not met her burden of proof, however, in showing that her failure to get the raise was due to racial or gender discrimination. She may have perceived this, but it was not a well-founded perception. It did not happen.... Her perception as to why she failed to get the raise was considerably off base, however. The reason she did not get the raise was because she did not deserve it.... Quite simply, she was not a superior employee. Yes, this was discrimination, but not such that would give rise to Plaintiff s expert psychiatrists opinions as to causation. It was not based on race or gender discrimination. For good measure, the magistrate went so far as to find that even were plaintiff s perceptions accurate, he would not find, in light of her personal circumstances, that work played a significant role in her admitted mental disability. He reiterated the fact that her depression was recurrent and that she had previously been hospitalized for such a condition. He noted, as did the psychiatrists, that plaintiff had a difficult childhood, including abuse and neglect by her father, that she was married to an alcoholic, abusive husband, from whom she separated, yet to whom she remained emotionally attached, and that when he died on September 29, 1990 from a heart attack induced by a cocaine overdose, she felt guilty because she should have helped him. She said that he was the only person who had ever loved her for who she was. Thus, while the magistrate found plaintiff was able to cross the first hurdle in obtaining an award for a mental disability, he found she did not cross the second, and even if she had, she would not cross the last. In her criticisms of this opinion, plaintiff does not convince us that it was in error. After ten pages of reiterating the facts in a favorable light, plaintiff states that the magistrate erred when he found that the testimony of Dr. Kafi did not support an employment-related disability. However, as the portion of his opinion quoted above demonstrates, the magistrate found exactly that. That is, the magistrate recognized Kafi s testimony was in support of an employment-related disability. 4

5 Plaintiff next argues that there were actual events of employment and not unfounded perceptions. However, as the magistrate so carefully set forth, plaintiff s claims were for improper discrimination and she was unsuccessful in demonstrating that either racial or sexual discrimination was the reason she was not awarded a merit raise. Plaintiff next reiterates the two events occurring in 1986 and in 1988 as support for her claims. Assuming that plaintiff is correct, that defendant employer purchased all the existing worker s compensation causes of action of the employees, these events do not change the result reached by the magistrate. As a result of the meeting in February 1986, five years before her last day worked, she did not miss any work, seek any psychiatric care or file any grievances. Shortly thereafter, plaintiff was transferred out of that department. As for her application in May 1988 for a clerical position, neither racial nor sexual discrimination were shown since a black female was awarded the job. Plaintiff admits, in her appellate brief, she was able to effectively deal with the employment related conflicts until July 1991, when she learned that she was not being given a merit increase. Plaintiff then returns to her contention that the magistrate misread Dr. Kafi s opinions. She states that while the magistrate states that Dr. Kafi said he did not know if the raise issue, alone, would have caused the depression, plaintiff writes that a fair reading of Dr. Kafi s testimony would be that, if Ms. ASH had received a raise, she would not have suffered a disabling depression. Plaintiff quotes a deposition question about whether, in Kafi s opinion, plaintiff would have become depressed had she received the raise, and Kafi s answer: Well, that s a good question. That was one of her biggest complaints that made her angry. It could have helped, but maybe not. Maybe if she had a kind of promotion and, you know, the just treatment, she wouldn t have had this depression. Even if plaintiff is correct that the magistrate misread this deposition (a point with which we disagree), this quotation is so tentative that it does not convince us of anything relevant. The issue is whether plaintiff was improperly discriminated against, not, hypothetically, whether, if she had received a raise (and/or promotion), she would have avoided the depression. Perhaps plaintiff is trying to show the significance of the impact of her failure to get the merit raise. Because there is competent, material and substantial evidence for the magistrate s weighing of occupational and non-occupational events, this argument would not change our conclusion. Plaintiff next states that the magistrate further misread Kafi s deposition and failed to realize that Kafi s opinion was that plaintiff was depressed by her husband s death and that this was aggravated by her failure to get a raise. We disagree. As the portion of the magistrate s decision quoted above demonstrates, the magistrate summarized this very 5

6 finding of Dr. Kafi: In his opinion, the Plaintiff s difficulties at work significantly aggravated her depression, a pre-existing condition, resulting in total disability. Plaintiff concludes with this argument: Ms. ASH s testimony, as well as that of her treating psychiatrist and examining psychiatrist, make it clear that she was able to cope with her non work-related emotional difficulties throughout the years while maintaining her employment at TECHNICOLOR VIDEO CASSETTE. However, it was the years of harassment by supervisors and co-workers, culminating in the incident in July 1991, wherein a white male co-worker with equivalent job duties was given a merit raise and she was not, which caused her to become psychiatrically disabled. Ms. ASH has demonstrated, by a preponderance of the evidence, that the harassment, stress and humiliation that she was subjected to caused, aggravated and accelerated in a significant manner her continuing psychiatric disability. The magistrate s conclusion to the contrary is not based on competent, material and substantial evidence on the record as a whole and should be reversed. MCL a(3). As shown above, the events occurring in the years of harassment by supervisors and co-workers do not demonstrate improper discrimination. A merit raise was given to another individual based on his superior performance for defendant, performance the plaintiff was not shown to have equaled. The magistrate s conclusion that plaintiff s disability was not work-related, nor, if it had been, affected by work in a significant manner, is well supported and we affirm his decision. Commissioners Kent and Garn concur. Joy L. Witte James J. Kent Marten N. Garn Commissioners 6

7 CAROLYN A. ASH, PLAINTIFF, S T A T E O F M I C H I G A N WORKERS' COMPENSATION APPELLATE COMMISSION V DOCKET # TECHNICOLOR, INCORPORATED, AND ARGONAUT INSURANCE COMPANY, DEFENDANTS. This cause came before the Appellate Commission on appeal by plaintiff from the decision of Magistrate John M. Wierzbicki, mailed August 29, 1995, denying benefits. The Commission has considered the record and the briefs of counsel, and believes that the magistrate s decision should be affirmed. Therefore, affirmed. IT IS ORDERED that the decision of the magistrate is Joy L. Witte James J. Kent Marten N. Garn Commissioners