Knight v. Abbott Laboratories

Although the per curiam opinion of the North Carolina Supreme Court inWoody vs. Thomasville Upholstery, Inc., ___ N.C. ___ (May 10, 2002), adopting without discussion the dissenting opinion of Judge Martin in146 N.C. App. 187, 552 S.E.2d 202 would appear to fully support the majority opinion of the Full Commission in the present case, I must respectfully dissent.

I believe that the Supreme Court must revisit its per curiam opinion as wrongly decided. In any event, the Woody case is distinguishable from the case at bar. Woody involved prolonged harassment of an employee rather than a single causal event, as in the instant case. Woody was an occupational disease claim. In such cases, G.S. § 97-53(13) is the applicable standard. In the instant case, however, the better view of the facts and law is that the instant claim arose from an injury by accident. Under this standard, all that is required to be shown is an unusual or unexpected occurrence in the course and scope of employment resulting in injury. Toler v. Black Decker, 134 N.C. App. 635,518 S.E.2d 547, 551 (1999); Jordan v. Central Piedmont CommunityCollege, 124 N.C. App. 112, 476 S.E.2d 410 (1996); Hinsley v.Cooperative, 246 N.C. 274, 278, 98 S.E.2d 289, 292 (1957); Cody v. SniderLumber Co., 96 N.C. App. 293, 385 S.E.2d 515 (1989) (rev'd on other grounds, 328 N.C. 67, 399 S.E.2d 104 (1991); Davis v. Raleigh RentalCenter, 58 N.C. App. 113, 292 S.E.2d 763 (1982)

In Woody, the Supreme Court was apparently unaware of its own decision in Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359 (1983). Therein, the Court held: "To satisfy the first and second elements [of an occupational disease claim] it is not necessary that the disease originate exclusively from or be unique to the particular trade or occupation in question. All ordinary diseases of life are not excluded from the statutes' coverage. Only such ordinary diseases of life to which the general public is exposed equally with workers in the particular trade or occupation are excluded. . . . Thus, the first two elements are satisfied if, as a matter of fact, the employment exposed the worker to a greater risk of contracting the disease than the public generally. `The greater risk in such cases provides the nexus between the disease and the employment which makes them an appropriate subject for workmen's compensation.'"

In my view the dissenting opinion in Woody demonstrated an apparent lack of knowledge of the intent and purposes of the Workers' Compensation Act, its interpretation throughout the country as reported in Arthur Larson's treatise on workers compensation, and the irrational effect application of such reasoning would have on the entire Workers' Compensation Act. The opinion reasoned that since an abusive supervisor "can occur with any employee in any industry or profession . . . or similar abusive relationships outside the workplace" the depression resulting from workplace abuse from an abusive supervisor was an ordinary disease of life to which the general public was equally exposed. Under such reasoning, carpal tunnel cases would not be occupational diseases because people use their hands outside their employment. Silicosis cases would not be compensable because people are exposed to sand and dust outside of their employment. In sum, the dissenting opinion was based upon the fact that an abusive supervisor might be present in other employment, totally disregarding the undisputed evidence that an abusive supervisor was in fact present in Ms. Woody's employment and the undisputed medical evidence that her work-related exposure to this abuse was the cause of her medical problems. There is no question that, in fact, Ms. Woody was not equally exposed to such abuse outside of her employment. Rutledge and multiple other decisions specifically have held that the test is not what might be present elsewhere but what was in fact present in the particular employment.

I would use a "but for" analysis. First, was the cause of the worker's inability to work mental problems triggered by an incident or incidents at work? But for the incidents, would the worker have been able to continue working? In an occupational disease analysis, was the worker exposed to an increased risk of triggering mental problems by something or someone in the work environment? Just because many people are stressed by supervisors at work does not remove the fact that such stresscan result in an inability to earn wages. When it does, it is compensable under workers' compensation.

Vivian Knight's claim arose from a single incident. The testimony of her treating physicians that she suffered a psychic trauma is undisputed. Such claims are generally compensable. See Larson. Multiple other cases have held such claims compensable, including Jordan, Cody,Davis, Withers, etc. The Workers' Compensation Act is required to be liberally construed in favor of the injured worker. The Supreme Court itself has held, "The evidence tending to support plaintiff's claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence." Adams v. AVX Corp., 349 N.C. 676, 508 S.E.2d 411, 414 (1998). An injury "arises out of" the employment when it is apparent to the rational mind upon consideration of all of the circumstances that there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. Robbins v.Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972). It is sufficient if the injury is one which, after the event, may be seen to have had its origin in the employment. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668 (1949).

Vivian Knight was a long term employee who was working satisfactorily for years before the incident. As a direct result of the incident, she is undisputedly disabled. There is no evidence of an idiopathic cause.

This case is compensable.

This 28th day of June 2002.

S/_____________ THOMAS J. BOLCH COMMISSIONER

2. An employer-employee relationship existed between plaintiff and defendant-employer at all relevant times.

3. Defendant is self-insured with Kemper Risk Management Services as the servicing agent on the risk.

4. Plaintiff's average weekly wage was to be determined by a Form 22 which had not been submitted as of the time of the filing of the Deputy Commissioner's Opinion and Award.

5. The date of plaintiff's alleged injury is March 25, 1994.

6. The issues for consideration are:

a. Did plaintiff sustain a compensable injury by accident arising out of and in the course of her employment?

b. If so, is plaintiff's mental condition the result of an injury by accident?

c. Is plaintiff permanently and totally disabled?

d. If so, to what benefits is plaintiff entitled?

7. The parties submitted a packet of bound and indexed medical records.

8. Following the hearing before the Deputy Commissioner, the depositions of Dr. James Bryant, Dr. Victor Mallenbaum and Dr. C. Thomas Gualtieri were taken and were received into evidence.

2. Plaintiff's previous jobs included work at Rocky Mount Mills, as a waitress, and doing assembly work.

3. Plaintiff began work with defendant-employer in 1980 and worked there continuously through the date of her alleged injury, March 25, 1994. Plaintiff performed production operator work, assembling filters according to specifications in written work orders. Plaintiff earned approximately $30,000.00 per year. She frequently worked overtime and her usual workweek was six days. Mr. Fred Fuller was plaintiff's supervisor in this employment.

4. Plaintiff had experienced prior problems with Mr. Fuller, and therefore she tried to avoid having any contact with him.

5. On March 25, 1994, plaintiff had a confrontation with Mr. Fuller. Under company seniority rules, plaintiff was entitled to select vacation days. Plaintiff had requested a day of vacation before the Easter holiday to coincide with a planned trip to visit family members in Atlanta. Only one individual from her work crew was allowed vacation at any given time. Mr. Fuller allowed an employee with less seniority than plaintiff to take the vacation day plaintiff had requested.

7. Plaintiff learned of Mr. Fuller's decision late in the workday on March 25, 1994. She went to Mr. Fuller's office to speak with him about this. Mr. Fuller became very upset when plaintiff asked about the day of vacation she had requested. Mr. Fuller is a large individual. He arose from his desk and began talking to plaintiff in a very loud, angry voice, waving his hands and fingers in plaintiff's face. The conversation ended abruptly after a loud discussion between plaintiff and Mr. Fuller.

8. Several witnesses corroborated plaintiff's testimony regarding a confrontation with Mr. Fuller and hearing raised voices.

9. Plaintiff left the office in tears and returned to her workstation. Shortly thereafter, Mr. Fuller came to plaintiff's workstation and called to her in a loud voice. He stated that he would give plaintiff the vacation day she had requested. Following the confrontation, plaintiff was emotionally upset and crying.

10. After the second discussion with Mr. Fuller, the shift ended. Plaintiff had broken out in hives. She was sobbing uncontrollably and went from work directly to the office of Dr. James Bryant, her family doctor, for medical attention. Dr. Bryant gave her prescription medications and referred her to Dr. Soong Lee, a psychiatrist, and Dr. Victor Mallenbaum, a psychologist, for treatment.

11. Plaintiff required psychiatric hospitalization approximately four weeks after the incident. She also was hospitalized at Nash General Hospital for emotional problems. Plaintiff underwent a coronary catheterization at Durham General Hospital. No heart problem was found. Plaintiff also received treatment at the Nash General Hospital Emergency Room for psychiatric problems.

12. Plaintiff continued to be treated by Drs. Bryant and Mallenbaum at the time of the hearing before the Deputy Commissioner.

13. During the summer of 1994, defendant's representatives contacted plaintiff. She also gave a statement to the servicing agent by telephone.

14. Dr. Lee, plaintiff's psychiatrist, wrote a letter to the company asking the employer not to contact plaintiff.

15. On two occasions, plaintiff attempted to return to work but was unable to perform her job duties due to medications she was taking at the time she reported to work.

16. Plaintiff received approximately three months of disability through a company plan.

17. Plaintiff was involved in an unrelated automobile accident on December 15, 1995. This resulted in relatively minor "whiplash" injuries that increased plaintiff's discomfort.

18. At the hearing before the Deputy Commissioner, plaintiff described multiple medications she was taking.

19. In her testimony plaintiff described an incident in which she left pans on the stove causing a house fire after the incident at work. Family members have to help insure that plaintiff does not have additional accidents.

20. Dr. Victor Mallenbaum is plaintiff's treating psychologist. According to Dr. Mallenbaum, plaintiff suffered a psychological trauma after the incident of March 25, 1994, and her symptoms were caused or significantly aggravated by the incident. However, Dr. Mallenbaum performed no psychological testing of plaintiff. It is Dr. Mallenbaum's opinion that plaintiff has reached maximum medical improvement, is permanently and totally disabled from competitive employment and will require medical and psychological care and prescription medicines in the future. Dr. Mallenbaum stated that the incident at work was a substantial contributing factor in development of plaintiff's post-traumatic stress disorder (PTSD). Dr. Lee, who was not deposed, diagnosed plaintiff with PTSD and recurring major depression.

21. Dr. Thomas Gualtieri, a neuropsychiatrist in Chapel Hill, saw plaintiff for an independent medical examination at the request of defendant on August 10, 1994. Dr. Gualtieri gave plaintiff a general physical examination, a neurological examination and a mental status examination. In Dr. Gualtieri's opinion, plaintiff's presentation was inconsistent. Plaintiff was unable to complete the forms and questionnaires routinely given to patients, had attentional and memory lapses and could remember only one of three simple words five minutes after being told the words, and was an extremely poor historian. However, plaintiff's manner and speech changed dramatically when asked by Dr. Gualtieri to describe the events related to the incident of March 25, 1994. Plaintiff's memory of this incident was remarkably intact and she described the incident in detail to Dr. Gualtieri. According to Dr. Gualtieri, plaintiff does not have post-traumatic stress disorder (PTSD) because plaintiff experienced no credible event that was life-threatening or credibly traumatic and because plaintiff did not present typical PTSD symptoms. Dr. Gualtieri did not believe that the event plaintiff described as occurring at work on March 25, 1994, was the kind of severe traumatic event that gives rise to PTSD.

22. After reviewing the medical records, the testimony of witnesses and the depositions of medical experts, the Commission gives greater weight to the testimony and opinions of Dr. Gualtieri, who is a neuropsychiatrist whose areas of specialization include post-traumatic psychiatric conditions and who conducted psychological testing of plaintiff, than to the testimony of Dr. Bryant, a family physician, and Dr. Mallenbaum, a psychologist.

23. Prior to and after the incident of March 25, 1994, plaintiff experienced a number of life stressors. In 1989 she received counseling due to marital problems and was diagnosed with an adjustment disorder. Plaintiff was hospitalized for five days in 1989 due to depression. Plaintiff had an extensive history of being tardy for work and was reprimanded on several occasions for her tardiness, as well as for an altercation at work with another employee and for poor work performance. Plaintiff's daughter was injured in a knife fight. Plaintiff's father was ill and in the hospital for approximately five years and died in August of 1993. Plaintiff's house and belongings were destroyed in a fire in January of 1994. Plaintiff's car was vandalized and she did not receive payment for the damage because the vehicle was uninsured. Plaintiff's son was shot. Plaintiff was involved in two car accidents and she filed a lawsuit arising out of the car accident of December 15, 1995.

24. The Commission finds that the greater weight of the competent, credible evidence of record shows that the events of March 25, 1994, did not cause plaintiff's psychological problems. The evidence showed that plaintiff initiated the meeting with Mr. Fuller and that a dispute over a requested vacation day occurred, during which both plaintiff and Mr. Fuller raised their voices in an angry manner and Mr. Fuller angrily gestured toward plaintiff with his hands. Disagreements between an employee and a supervisor are not uncommon in employment situations, although the type of angry confrontation which occurred in this case may happen infrequently. The confrontation between plaintiff and her supervisor did not constitute an unexpected, unusual or untoward occurrence; nor did it constitute an interruption of the work routine and the introduction thereby of unusual conditions likely to result in unexpected consequences.

2. Therefore, plaintiff is not entitled to workers' compensation benefits under the Workers' Compensation Act. N.C. Gen. Stat. §97-2(6).

2. Each side shall pay its own costs.

This the ___ day of May, 2002.

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

CONCURRING WITH SEPARATE OPINION:

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

DISSENTING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

Upon the issuance of the North Carolina Supreme Court's Opinion in the case of Woody v. Thomasville Upholstery, Inc., ___ N.C. ___ (10 May 2002), I believe I am compelled to concur in the majority Opinion and Award in the instant case and deny benefits to plaintiff. However, I must note that I am in agreement with the arguments set forth in the dissenting opinion, and absent the Woody decision, I would vote to award compensatory benefits in this case.

S/___________________ BERNADINE S. BALLANCE COMMISSIONER