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

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1 1997 OPINION # 332 S T A T E O F M I C H I G A N WORKERS' COMPENSATION APPELLATE COMMISSION JERRIDEAN RABB, PLAINTIFF, V DOCKET # E.D.S., SELF INSURED, DEFENDANT. APPEAL FROM MAGISTRATE SHARON L. SMITH. ROSEMARY WOLOCK FOR PLAINTIFF, GERALD M. MARCINKOSKI FOR DEFENDANT. WITTE, COMMISSIONER OPINION This matter is before the Workers Compensation Appellate Commission on appeal by defendant from the decision of Magistrate Sharon L. Smith, mailed December 15, 1994, granting benefits for both a cardiovascular and a psychiatric condition. The magistrate found the plaintiff s employment significantly aggravated her high blood pressure and both caused and significantly aggravated a psychiatric condition. We affirm the decision of the magistrate. follows: Her findings of fact and conclusions of law were as Plaintiff, birth date December 9, 1947, was a credible witness. Although plaintiff was not always clear in her thoughts, I find her testimony persuasive on those specific events which caused her psychiatric stress, most especially the episode on September 25, Based on the combined testimony of Karen Blunden and Phyllis Sturman, I find there was a concerted effort to get rid of plaintiff by any means necessary. Ms. Sturman acknowledged her intent to remove plaintiff from her position even before giving plaintiff an opportunity to work as her assistant. And, Ms. Sturman admitted that she had pre-conceived ideas regarding plaintiff, all negative, based solely on what Ms. Blunden told her. I find the conduct and hidden

2 agendas of these two women reprehensible, the cause of plaintiff s psychiatric disability, and aggravation of her hypertension. Plaintiff began her employment with General Motors Corporation in Due to a buy out by E.D.S., defendant herein, [she] became an employee of defendant. She held several job titles, the last, in 1992[,] as an administrative assistant. As an administrative assistant plaintiff worked with the manager of an account. Initially, she had no problems performing her job. The job became stressful, however, due to the volume of calls made to the department on a daily bas[i]s. Both plaintiff and a co-worker named Judy [c]omplained that the phones were stressful and time consuming. Plaintiff testified that to complete her other daily duties she would have to work some nights until 9:00 p.m. Ms. Blunden acknowledged that there were occasions when she would leave work in the evening and plaintiff would stay late. Plaintiff has been treating for uncontrolled hypertension since at least Therefore, I do not find that defendant s actions caused her hypertension nor the result[ing] congestive heart failure. I do find, however, that defendant s actions, as aforestated, aggravated this condition beginning February 1, Plaintiff had her first employment episode on or about December 1, At approximately noon on that day plaintiff felt sick. She went to medical and was advised of her elevated blood pressure. On her way home she could not breathe. She ended up as an in-patient at Detroit Receiving Hospital. Plaintiff returned to work within a week of her discharge. Although she maintained he job title of Administrative Assistant, it soon became clear that Ms. Blunden was no longer interested in retaining plaintiff in that position, so she (Ms. Blunden) began passing plaintiff over and giving work directly to other subordinates. On February 1, 1992, plaintiff had her second episode. Plaintiff returned to work sometime in July Her job title was still administrative assistant to Ms. Blunden. Ms. Blunden left her position in August 1992 and was replaced by Ms. Sturman effective September 1,

3 Ms. Sturman supervised plaintiff from September 1, 1992 until plaintiff s last day worked on September 25, During this 3-1/2 week period Ms. Sturman evaluated plaintiff s work performance and rated plaintiff s performance below expectations. On September 25, 1992, plaintiff was working at her desk when an employee named Joe Pepper approached with some work saying it was something between Judy and Karen. Later Joe asked plaintiff for the work and when she was unable to produce it, Joe accused plaintiff of not doing her job. Ms. Sturman asked plaintiff why she had not done the work and advised plaintiff that she would not have anyone in the group who refuses to do the work. Plaintiff became very upset because she was being lied on. This coupled with her anxieties about losing her job was the straw that broke the camel s back. I find that the above stated event actually occurred and that it caused plaintiff s psychiatric disability and aggravated her hypertension in a significant manner. Plaintiff has been diagnosed as having a major depression. Based upon the testimony of Drs. Ahmad Kafi, M.D., and Raymond G. Mercier, M.D., and my own observations of plaintiff at hearing, I find that she indeed suffers from a major depression. * * * I, therefore find that plaintiff has established by the preponderance of the evidence a work-related event on September 25, 1992, which caused her major depression and that this mental condition is disabling having been caused and accelerated by her employment in a significant manner. * * * During the latter years of plaintiff s employment with defendant, her need for treatment and the number of hospitalizations increased. I find that this increase in physical complaints leading to hospitalizations were directly related to the stressful environment created by her superiors. And, that such environment aggravated her condition, in a significant manner, to the point of disability. 3

4 I, further, find that plaintiff was the victim of harassment in the workplace, again at the hands of her superiors but also by co-workers who had the approval of her superiors. Such harassment caused plaintiff s major depression rendering her totally disabled from functioning in any workplace. Defendant brings up one issue for our review: The magistrate erred as a matter of law by failing to correctly apply the in a significant manner causation standard as provided in Farrington and Gardner, and by failing to recognize the rule which holds that where a mental condition results from a physical condition, the physical condition itself must be compensable in order for the resultant mental condition to be compensable. Defendant cites for us the rules of Farrington v Total Petroleum, 442 Mich 201 (1993), and Gardner v Van Buren Public Schools, 445 Mich 23 (1994), as follows: Farrington established a three part test for section 301(2). First, the heart injury must have been the result of specific incident or event at work, not the result of stress or anxiety over a period of time. Miklik v Michigan Special Machine Co, 415 Mich 364 (1982). Second, there must be a consideration of work activities in relation to the claimant s non-occupational factors, including age, weight, diet, previous cardiac aliments or injuries, genetic predispositions, use of tobacco, alcohol or other drugs as well as non-work-related stressful events. Third, the specific workplace events must have contributed to the heart attack in a significant manner. Young v Traverse Bay Area Schools, 1994 ACO # 238. Holden v Ford Motor Co, 439 Mich 257 (1992). Defendant quotes Gardner: Once actual events have been shown to have occurred, the significance of those events to the particular claimant must be judged against all the circumstances to determine whether the resulting mental disability is compensable. Defendant acknowledges that the blood pressure and depression claims are related. Defendant is right; the magistrate concluded that plaintiff, more vulnerable to stress because of her volatile blood pressure, became depressed due to the harassment 4

5 and her inability to work. The fact that duties were removed from her to relieve her workload only served, according to plaintiff, to both stress and depress her more. Defendant alleges that plaintiff s heart claim is one of general stress or anxiety over a period of time rather than one of specific incidents or events at work. Defendant further writes, The salient point is there is no linkage of any heart damage to any specific incident at work. This test, obviously, is not a black and white test. Numerous specific incidents, stretched out over time, can equate with generalized stress. Here, however, the magistrate listed specific events, particularly the one on plaintiff s last day worked, as having specific deleterious effects on plaintiff s ability to continue working. She also accepted the testimony of Dr. Howard Dubin, set forth in some detail below, that the stress at work was actually causing cardiac damage. Defendant then states that the magistrate did not correctly weigh in plaintiff s numerous non-occupational factors to determine the work-relatedness of her heart condition: plaintiff was hypertensive for 12 years prior to her last day worked, she is a diabetic, has seizures, is obese (5 foot 7 inches, 230 pounds), has panic attacks, has hallucinations and is psychotic according to her treating psychiatrist, smoked until 1991 according to one set of hospital records, and has continued to be hospitalized, with increasing frequency since her last day worked for heart and breathing disorders. Her cardiovascular condition, to be specific, includes a murmur due to a dysfunctional ventricle, uncontrolled high blood pressure and congestive heart failure. The medical opinions accepted by the magistrate were, that for a person with plaintiff s medical profile, any stress, either physical or mental, is to be strictly avoided. As Dr. Dubin stated, Any physical or emotional stress would tend to increase the rate of the heart, it could accelerate the pressure and in doing these two things it actually would put stresses on the heart that is already nonfunctional.... Any acceleration of the ventricle which is dysfunctional could result in a -- actually an acute exacerbation of cardiac decompensation again.... [T]he stress could certainly produce an acute acceleration of her hypertension crisis and result in further cardiac decompensation even further cardiac damage and under those factors it could certainly aggravate, accelerate or even cause a congestive heart failure and by itself also could aggravate the preexisting hypertensive cardiovascular disease. Further, plaintiff, with her longstanding high blood pressure, was subjected, once her congestive heart failure began hospitalizing her, to attempts to be rid of her. Apparently management felt plaintiff was no longer physically capable of handling the stress of her job. It was the steps of giving work to others, re-doing files to the liking of another secretary who was to take them over, getting plaintiff help in handling the 1,500 to 2,000 monthly calls, and the general sense of not being wanted or needed any longer, during her last months of 5

6 employment, that served to aggravate her blood pressure condition significantly. 1 It is obvious from a reading of the magistrate s decision that she weighed in plaintiff s substantial pre-existing medical conditions. However, she specifically found that work events significantly aggravated those conditions to the point of disability, thus satisfying a Farrington analysis. Because there is competent, material and substantial evidence on the whole record for the magistrate s conclusion that plaintiff s cardiovascular condition was significantly aggravated by work, this finding is conclusive upon us and must be affirmed. Defendant s argument that since the cardiovascular condition was not shown to be significantly aggravated by her employment, the mental condition, arising from that physical problem, is not compensable, must be rejected since we find support for the premise that there was significant aggravation of the heart condition. Defendant then argues that even if the mental claim is considered separately from the cardiovascular claim, it fails because the magistrate did not consider the myriad of non-occupational factors under this issue either. Defendant contends that plaintiff has a lot of physical problems and, as a result, has a lot to worry about. We disagree that the mental claim fails on its own. The magistrate specifically found that the harassment in this case, especially the events of September 25, 1992, caused and aggravated plaintiff s major depression. The only non-occupational factor defendant points to, outside of plaintiff s numerous medical ailments, is that plaintiff s father had died 25 years prior and her uncle, who became like a father to her, died shortly after Dr. Kafi had already diagnosed her with major depression. Thus, there is competent, material and substantial evidence on the whole record for the magistrate s conclusion that plaintiff experienced specific events at work which significantly aggravated, even caused, disabling depression. Even if the actual event was the transfer of duties away from plaintiff in an attempt to reduce stress, as defendant logically argues, we no longer are permitted, pursuant to Gardner, to gauge the logic of a plaintiff s response to such a supervisory action. 2 Furthermore, as is most evident from the history as given to Dr. Leon Rubenfaer, psychiatrist, plaintiff s congestive heart failures began and coincided 1 We note our agreement with defendant s recognition of its catch-22 position: the job was stressful without assistance and there was the attempt to assist plaintiff in her ever-weakening condition. Yet it was this very attempt to help that plaintiff found so threatening. 2 For the record, we agree with defendant s commentary that it is nearly impossible to gather from a mere reading of the transcript in this case why the magistrate s tone in discussing defendant s personnel s actions is so vindictive. The transcript does not convey actions that appear reprehensible, harassing or which evidence hidden agendas. For example, that a supervisor, who was undoubtedly briefed regarding the employees she was to supervise, had a pre-existing opinion of plaintiff before meeting her, seems completely ordinary. Further, plaintiff did not describe her supervisors with these vehement adjectives. Rather, she explained that she very much liked her co-workers and she loved her jobs but was unhappy with supervision. This case, then, perhaps serves as an example of why we are obligated to defer to the magistrate s observation of live witnesses. 6

7 with plaintiff s assignment to Karen Blunden as an administrative assistant. As Dr. Rubenfaer records her history, [B]ut at the end of 1991, her appraisals suddenly turned negative and inappropriately critical. She states that this is when her heart problems occurred, that her blood pressure began to increase and she experienced shortness of breath and was hospitalized. She went back to work shortly afterwards, but her increased blood pressure was not able to be corrected and she continued to feel great stress at her job. She states she went into heart failure in February of 1992, and again in April of 1992, and last worked on September 23, the magistrate s decision in its entirety. Thus, based on our standard of review, we must affirm Commissioner Skoppek and Chairperson Miller concur. Joy L. Witte Jürgen Skoppek Donald G. Miller, Chairperson Commissioners 7

8 S T A T E O F M I C H I G A N WORKERS' COMPENSATION APPELLATE COMMISSION JERRIDEAN RABB, PLAINTIFF, V DOCKET # E.D.S., SELF INSURED, DEFENDANT. This cause came before the Appellate Commission on appeal by defendants from the decision of Magistrate Sharon L. Smith, mailed December 15, 1994, granting benefits for both a cardiovascular and a psychiatric condition. The Commission has considered the record and the briefs of counsel, and believes that the decision should be affirmed. Therefore, affirmed. IT IS ORDERED that the magistrate's decision is Joy L. Witte Jürgen Skoppek Donald G. Miller, Chairperson Commissioners