Bedini v. Frost

Annotate this Case
Bedini v. Frost (94-624); 165 Vt 167; 678 A.2d 893

[Opinion Filed 15-Mar-1996]

[Motion for Reagrument Denied 3-Apr-1996]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 94-624


Frances Bedini                                    Supreme Court

                                                  On Appeal from
    v.                                            Department of Labor & Industry

Oakley Frost, M.D.                                October Term, 1996


Mary S. Hooper, Commissioner

Ronald A. Fox of Biggam, Fox & Skinner, Montpelier, for plaintiff-appellant

Phyllis G. Severance and Thomas P. Simon of McCormick, Fitzpatrick &
  Mertz, P.C., Burlington, for defendant-appellee


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



       ALLEN, C.J.   Plaintiff Frances Bedini appeals the Department of Labor
  & Industry Commissioner's denial of her workers' compensation claim.  We
  affirm.

       Plaintiff was hired by a medical clinic in March 1992 as a medical
  receptionist/medical assistant.  Although she had prior experience as a
  medical receptionist, she had never worked as a medical assistant.  She
  expressed an interest in a career as a medical assistant, and saw the job
  as an opportunity for on-the-job training.  When she was hired, her
  employer explained the duties of the job to her.

       After a few weeks at the job, plaintiff's enthusiasm waned, and she
  began to feel the job was more than she could handle.  Her employer,
  however, never asked her to perform duties beyond those in the job
  description.  In July 1992, plaintiff complained about job-related stress
  to her physician, who was treating her for a preexisting physical
  condition.  She never informed her employer of this stress.

       Plaintiff's employer became increasingly dissatisfied with her job
  performance and

 

  counseled her several times about her deficiencies.  In April 1993, the
  plaintiff requested an opportunity to meet with her supervisor to discuss
  her job performance.  At this meeting, plaintiff's supervisor noted various
  problems with her job performance.  Plaintiff left the meeting and did not
  return to work again.  She again visited with her physician, who referred
  her to a licensed social worker for psychological counseling.  On April 12,
  1993, plaintiff was hospitalized for treatment.

       Plaintiff subsequently filed a workers' compensation claim, which was
  denied by her employer's insurer.  She then filed for a hearing on the
  denial before the Commissioner of the Department of Labor & Industry.  The
  Commissioner found that plaintiff was not subjected to unusual working
  conditions and that her injury resulted from her inability to master her
  job. The Commissioner denied her claim, and she then filed this appeal.

       The only issue on appeal is whether the standard adopted by the
  Commissioner for mental injury claims is unreasonable and unjust and
  without legal basis.  In this case, the Commissioner concluded that "in
  order for mental injury caused by stress at work to be compensable, a
  claimant must show that the stresses at work were of a significantly
  greater dimension than the daily stresses encountered by all employees."

       Because the Commissioner's standard derives from her interpretation of
  the workers' compensation statute,(FN1) we review the Commissioner's standard
  with deference.  Absent compelling indication of an error, interpretation
  of a statute by an administrative body responsible for its execution will
  be sustained on appeal.  In re Duncan, 155 Vt. 402, 408, 584 A.2d 1140,
  1144 (1990).  We will not upset that interpretation unless it is unjust or
  unreasonable or leads to absurd consequences.  In re Verburg, 159 Vt. 161,
  165, 616 A.2d 237, 239 (1992).

       The Commissioner's standard is supported by reasonable policy
  concerns.  In earlier

 

  cases, the Commissioner noted that medical authorities agree that the
  precise etiology of most mental disorders is inexplicable.  Because a
  mental injury could have resulted from such diverse factors as social
  environment, culture, heredity, age, sex, family relationships, and other
  interpersonal relationship, as well as employment, a high degree of
  uncertainty exists in the diagnosis of cause.  The unusual-stress standard
  also permits a more objective inquiry into the cause of the injury. 
  Greater objectivity is necessary in mental injury cases because the
  claimant's subjective impression that work-related stress caused her injury
  often forms the basis for the medical opinion that the injury was caused
  primarily by work-related stress.  See, e.g., Seitz v. L & R Indus., 437 A.2d 1345, 1350-51 n.6 (R.I. 1981).  Other policy considerations, not
  mentioned by the Commissioner, also support the Commissioner's standard. 
  For example, it protects against nondetectable fraudulent claims and
  prevents the conversion of workers' compensation into general health
  insurance.  See Dunlavey v. Economy Fire & Casualty Co., 526 N.W.2d 845,
  856 (Iowa 1995) (unusual stress standard effective means to prevent
  fraudulent claims and conversion of workers' compensation into general
  health insurance).  Because reasonable policy concerns support the
  Commissioner's standard, there is no compelling indication of error in the
  Commissioner's interpretation of the workers' compensation statute.

       Plaintiff argues that the Vermont Workers' Compensation Act does not
  differentiate between psychological and physical injuries.  While the
  statute does not expressly differentiate between physical and mental
  injuries, the Commissioner has adopted a standard that does so because of
  the greater uncertainty in the diagnosis of mental injuries than in the
  diagnosis of physical injuries.  Although plaintiff argues that "the
  diagnosis of physical injury is no more or less an art or science than the
  diagnosis of psychological injury in the field of medicine today," the
  Commissioner has reasonably concluded otherwise.  Moreover, all but nine
  states treat physical and mental injuries differently and do so for the
  same policy reasons as the Commissioner.  See 1B A. Larson, The Law of
  Workmen's Compensation § 42.25(g), at 7-968 (1995 & Supp. 1995). 
  Therefore, the Commissioner's conclusion that physical and mental

 

  injuries require a different standard is not unreasonable.

       Plaintiff also argues that the Commissioner's standard abandons the
  principle that an aggravation or acceleration of a preexisting condition
  can constitute an injury that is compensable under the workers'
  compensation statute.  In Campbell v. Savelberg, we held that "the
  aggravation or acceleration of a pre-existing condition can constitute
  personal injury by accident under the Act." 139 Vt. 31, 35-36, 421 A.2d 1291, 1294 (1980).  Mental injury claimants with preexisting conditions can
  still receive compensation, but they, like all mental injury claimants,
  must show that the work-related stress was greater than that experienced by
  all employees.  The Commissioner's standard does not abandon the principle
  that claimants with preexisting conditions can receive compensation.(FN2)

       Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Chief Justice




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                                  Footnotes


FN1.  If a worker receives a personal injury by accident arising out
  of and in the course of his employment . . . his employer or the insurance
  carrier shall pay compensation . . . to the person . . . ." 21 V.S.A. §
  618.

FN2.  The Commissioner's standard actually might benefit people with
  preexisting psychological problems.  Employers might be more inclined to
  hire someone with a preexisting condition if they know that they or their
  insurer will not have to pay a workers' compensation claim for mental
  injury resulting from ordinary work-related stress.


  ---------------------------------------------------------------------------
                                 Dissenting

  

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 94-624


Frances Bedini                                    Supreme Court

                                                  On Appeal from
    v.                                            Department of Labor & Industry

Oakley Frost, M.D.                                October Term, 1996


Mary S. Hooper, Commissioner

       Ronald A. Fox of Biggam, Fox & Skinner, Montpelier, for
  plaintiff-appellant

       Phyllis G. Severance and Thomas P. Simon of McCormick, Fitzpatrick &
  Mertz, P.C., Burlington, for defendant-appellee


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



       JOHNSON, J., dissenting.   I cannot accept the majority's brief
  affirmance of the standard adopted by the Commissioner for mental stress
  claims, both because the Commissioner, and now this Court, have departed
  from the statutory scheme for workers' compensation claims, and because the
  Commissioner's conclusions confuse, rather than clarify, the precise
  standard applied in stress claims.  I therefore respectfully dissent. 
  Although I believe that the final decision on this question must come from
  the Legislature, I would reverse this case, and remand for further
  explanation of the standard for stress claims, and the application of that
  standard to this case.

                                I.

       Plaintiff seeks workers' compensation benefits based on a mental
  stress claim.  Although the majority uses the term "mental injury claim" to
  describe this case, this case is more specifically about the standard
  applied to mental stress claims.  Stress claims are a subcategory of what
  are often called "mental-mental" claims -- mental injury for which the
  cause is a mental or emotional, rather than physical, impact or stimulus. 
  1B A. Larson, The Law of Workmen's

 

  Compensation § 42.23, at 7-876 (1995).  In stress claims, as the name
  suggests, the cause of the injury is gradual, rather than sudden.  See id.
  § 42.25(a), at 7-958.

       Although Vermont's workers' compensation statute does not explicitly
  authorize benefits for stress claims, the Commissioner has recognized such
  claims for some time.  See Mazut v. General Elec. Co., Vt. Dep't of Labor &
  Indus. Opinion #3-89 (1990); Lockwood v. Vermont Dep't of Corrections, Vt.
  Dep't of Labor & Indus. Opinion #20-85WC (1986).  As no party in this case
  challenges the Commissioner's policy of granting benefits for stress
  claims, this Court need not review the Commissioner's overall policy.  In
  fact, we have never addressed the issue.

       Instead, squarely raised in this case is the appropriateness of the
  standard applied by the Commissioner to mental stress claims.  The
  Commissioner has chosen to treat stress claims differently from other
  workers' compensation claims, by requiring a claimant to show not only that
  the injury was work-related, but also that the claimant's work experience
  was unusually stressful.  Specifically, the Commissioner required plaintiff
  to "show that the stresses at work were of a significantly greater
  dimension than the daily stresses encountered by all employees."

       I am troubled by the Commissioner's unsupported and inconsistent
  application of the quoted standard in this case.  The opinion includes only
  a brief finding that plaintiff was not "subjected to any unusual working
  conditions," and does not explain why plaintiff did not meet this standard. 
  Absent is a description of "normal" working conditions.  I am concerned
  that the Commissioner has applied a standard too vague and generalized to
  permit a meaningful comparison.   How is the average level of workplace
  stress to be proven?  Is the level of stress described by a claimant simply
  measured against an unstated norm?  See Graves v. Utah Power & Light Co.,
  713 P.2d 187, 193 (Wyo. 1986) (standard requiring comparison to all
  employees in the working world at large "too amorphous to be practical").

       Rather than evaluate plaintiff's experience against some measure of
  average workplace stress, the Commissioner focuses on two facts that are
  not directly related to the standard: first, that plaintiff was hired for a
  job for which she was not suited, and second, that subsequent employees
  taking the position were able to accomplish the job.  The Commissioner's
  emphasis

 

  on plaintiff's unsuitability for the job is puzzling, because the
  Commissioner's own standard requires a showing by plaintiff only that the
  stresses she encountered at work were significantly greater than the daily
  stresses encountered by all employees.  A person who is hired for a job who
  is not qualified may very well experience significantly greater stress than
  most employees.

       Instead of comparing plaintiff to "all employees," however, the
  Commissioner apparently compared her to the employees who replaced her. 
  Assuming that the employer hired more qualified replacements, their ability
  to master the job tells us little about the level of stress encountered by
  plaintiff.  Given the broad standard for measuring unusual stress that the
  Commissioner has adopted, I cannot understand why the specific experience
  of a claimant's replacement would ever be relevant in such a case.  Nor can
  I find any reported decision that measures a claimant's experience against
  that of her successor.

                                II.

       Unusual workplace stress has been measured in at least three different
  ways.  See id. at 192 (discussing different approaches to unusual-stress
  standard).  The approach that comes closest to what the Commissioner has
  actually done requires the claimant to show an unusually stressful work
  environment compared to other employees in the same workplace with similar
  responsibilities.  The obvious advantage is the ease of proof --
  information about the comparison group is readily available.  This
  standard, however, seems too lenient on employers.  As long as all similar
  employees are treated equally badly, no individual employee who suffers a
  stress-related mental injury would have a claim.  Employees in quite
  stressful situations could be excluded.  See id. at 193.

       Another approach, which gives more breadth to the unusual-stress
  standard, measures the claimant's work environment against that of all
  similarly situated employees, regardless of employer.  See Dunlavey v.
  Economy Fire and Casualty Co., 526 N.W.2d 845, 857 (Iowa 1995) (stress
  claim compensable only where workplace stress was greater than day-to-day
  mental stresses experienced by other workers in same or similar jobs). 
  Proof becomes more difficult, of course, as the comparison group expands,
  but experts in a particular industry or field might

 

  be able to describe typical working conditions.  Again, however, although
  for different reasons, the choice of comparison group seems unfair.  A
  person in a job that is typically very low-stress might meet this standard
  easily, while a person in a particularly stressful occupation would rarely
  be able to show unusual stress.  For example, what would an air traffic
  controller or homicide detective have to show to recover for mental injury
  caused by job stress?

       Finally, some states have adopted the standard articulated by the
  Commissioner, requiring a showing that a claimant's work environment was
  unusually stressful compared to that of all employees.  See School Dist. #1
  v. Department of Indus., 215 N.W.2d 373, 377 (Wisc. 1974) (claimant must
  show level of stress greater than day-to-day emotional strain and tension
  that all employees must experience).  Although this approach sounds fair,
  the comparison group is too large and generalized to allow for consistent
  and predictable application of the standard.  The vagueness of the standard
  may have prompted the Commissioner in this case to rely instead on facts
  that were irrelevant but more easily grasped, including plaintiff's lack of
  qualifications and the success of her replacements.

       I recognize the Commissioner's concern that workers' compensation
  benefits may not be the appropriate remedy when employees suffer
  stress-related mental injury because they were hired for a job for which
  they were not qualified.  I am also concerned, however, that claimants know
  the standard for stress claims and understand how that standard is applied. 
  The Commissioner has, without doubt, chosen a standard that is difficult to
  apply.  Nonetheless, as long as the Commissioner claims to be guided by
  this standard, decisions on mental stress claims should reflect a
  meaningful comparison of the stress encountered by the claimant and the
  stress encountered by all employees, a comparison conspicuously absent from
  this decision.

                               III.

       Plaintiff makes a broader claim in this case, however, arguing that
  the Commissioner's policy of applying a different, higher burden of proof
  to mental stress claims is without legal basis.  The Commissioner argues,
  and the majority agrees, that the unusual-stress standard is supported by
  "reasonable policy concerns."  Ante, at 2.  Specifically, the majority
  maintains that

 

  fraudulent mental injury claims are easier to make, because generally the
  only evidence of causation comes from the claimant.  This argument has some
  merit, but its logic can be extended to various types of physical injuries
  as well; soft-tissue injuries and back and neck complaints are notoriously
  difficult to diagnose, and pain itself can be described only by the
  sufferer.  See Reyer v. Pearl River Tung Co., 68 So. 2d 442, 444-45 (Miss.
  1953) (reversing denial of benefits where doctors could neither account for
  nor controvert claimant's complaints of pain).

       In fact, fraudulent complaints are only part of the problem.  Work
  environments that most people perceive as normal and manageable may
  overwhelm others.  For some people, under some circumstances, the stress of
  any job might be enough to cause mental illness. Although such claims would
  not be fraudulent, these may not be the kinds of injuries that workers'
  compensation is intended to insure.  See Board of Educ. v. Industrial
  Comm'n, 538 N.E.2d 830, 834 (Ill. App. Ct. 1989) (permitting compensation
  for any mental illness caused by on-the-job stressful events or conditions
  would open floodgate for workers who succumb to everyday pressures of
  life); Townsend v. Maine Bureau of Public Safety, 404 A.2d 1014, 1018 (Me.
  1979) (under standard requiring only causal connection between conditions
  of employment and resulting mental disability, virtually every
  psychoneurotic injury would be compensable).

       I agree that important policy concerns support requiring a higher
  standard for mental stress claims.1  These concerns, however, must be
  balanced against the explicit provisions of the workers' compensation
  statute.  Although the statute does not refer to mental injury claims of
  any kind, the statute does require that benefits be paid to "a worker [who]
  receives a personal injury by accident arising out of and in the course of
  his employment."  21 V.S.A. § 618.  By

 

  adopting the "unusual stress" standard for stress claims, the Commissioner
  has determined that some injuries that "aris[e] out of and in the course of
  . . . employment" will not be compensated.  Creating a separate category of
  injury, and requiring some showing other than causation, is not authorized
  by and is inconsistent with the workers' compensation statute.  See
  Candelaria v. General Elec. Co., 730 P.2d 470, 477 (N.M. Ct. App. 1986)
  (noting that statute contains no basis for applying different "arising"
  standard to mental injury produced by mental or emotional stimulus;
  changing standard for mental injury is province of legislature).

       The choice between the different approaches to mental stress claims,
  and their relative advantages and shortcomings, is a difficult one. 
  Granting benefits for mental stress claims, but adopting an unusual stress
  standard, may be the best compromise.  Perhaps a better solution awaits
  discovery.  Most troubling to me, however, is that this complex policy
  decision has been made by the Commissioner, rather than the Legislature.2 
  Although I recognize that this Court must give deference to the
  Commissioner's interpretation of the workers' compensation statute, In re
  Duncan, 155 Vt. 402, 408, 584 A.2d 1140, 1144 (1990), the Commissioner has
  moved some distance from the underlying statutory scheme in developing the
  standard for stress claims. Moreover, the Commissioner has failed to
  provide a coherent explanation of the standard or its application.  Without
  more, I am unable to join in affirming the Commissioner's decision in this
  case.



                              _______________________________________
                              Associate Justice



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                                  Footnotes


FN1.  Faced with the same policy concerns, some states have chosen to
  deny benefits for mental stress claims altogether.  See Larson, supra, §§
  42.25(d) & (e), at 7-963-64 (eight states deny compensation for
  mental-mental claims altogether, while seven states award benefits for
  mental-mental claims only where stimulus is sudden).  A number of other
  states, however, permit recovery in stress cases whether or not the
  claimant encountered unusual stress.  Id. § 42.25(g), at 7-968; see, e.g.,
  Wade v. Anchorage Sch. Dist., 741 P.2d 634, 637-38 (Alaska 1987) (stress
  claim analyzed in same way as any other workers' compensation claim;
  showing of stress greater than that in profession not required).

FN2.  A number of states have adopted statutory standards (some quite
  detailed) for mental stress claims.  See, e.g., Ala. Code § 25-5-1(9)
  (1992); Cal. Lab. Code § 3208.3 (West Supp. 1995); Colo. Rev. Stat. §
  8-41-301(2)(a) (Supp. 1995); La. Rev. Stat. Ann. § 23:1021(7)(b) & (c)
  (West Supp. 1995); Me. Rev. Stat. Ann. tit. 39-A, § 201(3) (West Supp.
  1995).