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.

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Dissenting

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.

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).

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