Matter of Compensation of Balfour

651 P.2d 179 (1982)

59 Or.App. 503

In the matter of the Compensation of Mildred Balfour, Claimant. Mildred Balfour, Petitioner, v. STATE ACCIDENT INSURANCE FUND CORPORATION, Respondent.

WCB Case No. 79-04213; CA No. A23059.

Court of Appeals of Oregon.

Argued and Submitted June 28, 1982.

Decided September 29, 1982.

Reconsideration Denied November 19, 1982.

Peter McSwain, Eugene, argued the cause for petitioner. On the brief were Evohl F. Malagon and Malagon & Velure, Eugene.

Darrell E. Bewley, Appellant Counsel, SAIF Corporation, Salem, argued the cause and filed the brief for respondent.

Before BUTTLER, Presiding Judge, and WARREN and ROSSMAN, Judges.

WARREN, J.

Claimant seeks judicial review of a determination by the Workers' Compensation Board that her psychological occupational disease was not compensable. This case was earlier remanded to the Board by this court, 51 Or. App. 206, 624 P.2d 671 (1981), for reconsideration in light of James v. SAIF, 290 Or. 343, 624 P.2d 565 (1981).

In denying compensability, the Board relied on two grounds. The first is an application of a general rule adopted by the board and applied by it in Harry McGarrah, WCB Case No. 79-05540 (1981). We have rejected the application of that rule to the facts in that case. McGarrah v. SAIF, 59 Or. App. 448, 651 P.2d 153 (1982). In this case, we conclude that claimant's condition, to the extent that it resulted from stress caused by her work supervision, was not excluded from compensability on the ground that it did not arise out of her employment within the meaning of ORS 656.802(1)(a).

The second ground is an application of the requirement that the work stress be the major contributing cause of the occupational disease. See SAIF v. Gygi, 55 Or. App. 570, 574, 639 P.2d 655, rev. den. 292 Or. 825, 648 P.2d 849 (1982).[1] The Board stated, in relevant part:

"In addition to possible work causation, there were several possible nonwork causes. Claimant had recently had surgery. *180 Claimant was anxious over the health of her husband. One of claimant's grandchildren died. Considering all the evidence, we are not persuaded that claimant's work experiences (even assuming they were all within the scope of her employment, which they were not) were the significantly predominate [sic] cause of her psychological condition."

Claimant, 61 years old at the time of the hearing, was a housekeeper in a hospital. In October, 1978, a new supervisor revamped the housekeeping regimen at the hospital to increase efficiency and reduce the infection rate. That resulted in changes in claimant's work routine, including a new work assignment, albeit one chosen by claimant, use of more efficient cleaning machines and agents and possibly a larger area to clean. Claimant experienced some difficulty adjusting to the changes. She was reprimanded for less than satisfactory work performance, although that had occurred on occasion before the changes. It is not entirely clear from the record why or how specific changes may have been particularly upsetting to claimant. In any event, claimant left her employment in March, 1979.

The record does reveal a number of off-the-job sources of continuing stress. Claimant's husband had been injured in 1967 and remained permanently and totally disabled. In 1975, his ongoing problems apparently caused a six-month bout of depression on claimant's part. In March, 1978, before the new regimen was initiated, claimant told her doctor about depression because of pressure at work and her husband's difficulties. At the end of 1978, about the time the new supervisor came on the scene, claimant told that doctor that her depression was because of two foot surgeries she had had in 1978, which were complicated by infections. At the hearing, claimant testified that she had been taking several antidepressive medications for years.

Claimant was first referred to her treating psychiatrist in December, 1978. At the time of the original diagnosis that the cause of claimant's anxiety was job related, the doctor was unaware of the previous use of medications and that claimant had been previously treated for depression. In a deposition, this doctor admitted that claimant's previous use of medications would tend to indicate that the problem of depression was ongoing. The doctor testified that, notwithstanding those facts, her opinion was still that the changes in the housekeeping routine were a contributing cause of claimant's depression, based on claimant's perception of what the change did to her.

We review the record de novo. Given the continuing sources of nonwork stress admittedly affecting claimant during the relevant time period, we are not persuaded that claimant's work was the major contributing cause of her increased depression, as required under SAIF v. Gygi, supra.

Affirmed.

NOTES

[1] The Board used a substantially similar test: "significant preponderance of causation [must be] work-related," derived from its decision in Kay L. Murrens, WCB Case No. 79-01573 (1981).