ANDERSON v. GENERAL ELECTRIC CO., No. 08300290 (Nov. 22, 1996)


David Anderson, Employee v. General Electric Co., Employer, Electric Mutual Liability Ins., Insurer

BOARD No. 08300290Commonwealth of Massachusetts Department of Industrial Accidents
Filed: November 22, 1996

REVIEWING BOARD DECISION

(Judges Kirby, Fischel and Wilson)

APPEARANCES

Ernest W. Piper, Jr., for the employee.

Paul M. Moretti, Esq., for the insurer on the brief.

John J. Canniff, Esq. for the insurer at the hearing.

KIRBY, J.

The insurer appeals the decision of the administrative judge finding the employee sustained a compensable injury under G.L.c. 152, § 1 (7A) and awarding workers’ compensation. The insurer contends that the decision was arbitrary, capricious, and contrary to law. Because the judge’s findings are not sufficiently specific and clear to provide proper appellate review, we recommit for further findings consistent with this opinion.

The employee, now forty-six years of age, began working for General Electric Company (employer) in 1968. (Dec. 4.) During his twenty-two year employment at General Electric, the employee was subject to a series of personnel actions, including reassignment, transfer, layoff, recall, and “bumping.”[1] (Dec. 4-6; see Tr. 14-17, 21-22, 28 46-47, 69, 77, 79, 82-84; Braverman Dep. 46-48, 50-51, 55-56, 66-68; Employee’s Brief, at 6, 14-16.) These events culminated in the employee suffering a nervous breakdown in March 1990. (Dec. 6.) The employee began psychiatric treatment with Doctor Paul Hans, with whom he continues treatment. (Tr. 23.) In May 1990, the employee returned to work but left after three weeks when he experienced increased anxiety. (Tr. 24.) He has not returned to work since that time. Id.

On March 3, 1993, the employee filed for workers’ compensation benefits alleging he sustained compensable mental and emotional harm arising out of the course of his employment at General Electric. (Dec. 1.) A conference was held July 19, 1993, at which time the judge denied the claim. Id. The employee appealed. At hearing, held December 8, 1993 and continued on January 28, 1994, the employee claimed G.L.c. 152, § 34 total incapacity benefits from March 20, 1990 to January 30, 1993 and G.L.c. 152, § 35 partial incapacity benefits from January 31, 1993 and continuing. Doctor Michael Braverman, a certified psychiatrist, examined the employee pursuant to G.L.c. 152, § 11A. He diagnosed the employee as having an underlying tendency toward anxiety and depression, with some possible narcissistic vulnerabilities. (Braverman Rep., 4-5; Dep. of Braverman, 63.) He reported that the employee’s nervous breakdown was precipitated by the series of work events that occurred during his employment at General Electric. (Dr. Braverman Rep. 6; Dec. 8.) The employee testified that he suffered deep depression and anxiety from March 1990 to December 1992. (Dec. 6; Tr. 28.) He further testified that by January 1993, his condition improved enough to seek clerical jobs, but felt mentally and emotionally unable to return to his prior job at General Electric. (Dec. 6; Tr. 25.)

Adopting the § 11A report, the judge found the employee suffered a nervous breakdown on March 1, 1990 that arose in the course of his employment. (Dec. 9.) He therefore ordered the insurer to pay § 34 benefits from March 1, 1990 to January 1, 1993 and § 35 benefits thereafter and continuing. (Dec. 10-11.) The insurer appeals this decision.

On appeal, the insurer contends that the judge failed to apply the correct standard of law set forth under G.L.c. 152, § 1(7A), and then failed to make the appropriate findings pursuant to that law.[2] We agree that the decision does not clearly apply the proper analysis under § 1 (7A) and fails to make the necessary findings to support the conclusion that the employee has sustained compensable personal injury in a form adequate for proper appellate review. G.L.c. 152, § 11C; Praetz v. Factory Mut.Eng.’g Research, 7 Mass. Workers’ Comp. Rep. 45, 47 (1933).

Mental or emotional injury cases are governed by G.L.c. 152, § 1 (7A), which at the time of the industrial injury provided in pertinent part:

Personal injuries shall include mental or emotional disabilities only where a significant contributing cause of such disability in [sic] an event or series of events occurring within the employment. No mental or emotional disability arising principally out of a bona fide, personnel action including a transfer promotion, devotion, or termination except such action which is the intentional infliction of emotional harm shall be deemed to be a personal injury . . . .”

G.L.c. 152, § 1 (7A) as amended by St. 1986, c. 662, § 6) (emphasis added).[3] This language of § 1(7A) provides specific provisions for establishing a “personal injury” arising out of mental or emotional disability and places the burden upon the employee to establish all elements of his claim under this section. SeeRobinson’s Case, 416 Mass. 454 (1993).

Generally in cases of claimed mental or on emotional harm a judge must make clear and precise findings on whether: (first) a significant contributing cause of the disability (second) was an event or series of events occurring within the employment (third), if applicable, that was or were not principally a bona fide personnel action or series of actions and (fourth) not intentional infliction of emotional harm under the guise of an otherwise bona fide personnel action or series or actions. See § 1 (7A), supra;
see also Walczak v. Massachusetts Rehabilitation Commission,
10 Mass. Workers’ Comp. Rep. ___ (June 25, 1996). Where the allegations consist primarily of emotional harm resulting from personnel actions, there are two questions on which the judge must make findings, that is, whether the actions were bona fide or were intentional infliction of emotional stress. Where the allegations consist of other events or work-place stressors separate and apart from personnel actions, bona fide or not, the judge need only make findings on whether the stressors were a significant contributing cause of an injury. G.L.c. 152, § 1 (7A. See Beckett v. CummingsAlden, Inc., 10 Mass. Workers’ Comp. (August 29, 1996).

In his decision, the judge adopted the § 11A opinion that “the employee was temporarily totally disabled from March 1, 1990 through January 1, 1993 and temporarily partially disabled from January 2, 1993 . . . and continuing . . . .” (Dec. 10.) The judge then awarded compensation, stating generally that “the series of events was a contributing cause of the [employee’s] disability . . .,” without qualifying the contributing cause as “significant.” (Dec. 10.) Although the judge is not required to recite the exact wording of § 1 (7A) to comport with its requirements, his conclusions must be drawn from a proper application of the standard that an event of employment must be a “significant” contributing cause of the employe’s mental or emotional disability. See Robinson’s Case, supra at 460 (judge applied correct standard where she concluded that the “emotional disability was `principally’ caused by a series of events occurring within [the] employment). In the decision at bar, we are unable to ascertain whether the judge applied that proper standard without more specific findings on the extent to which the work-related events contributed as a cause of the employee’s mental or emotional disability.

Furthermore, the judge was required to determine and make findings on whether the series of events or any event therein were bona fide or intentional infliction of emotional harm under § 1 (7A). The judge, however, omits this segment of the analysis all together. We are thus unable to determine whether the judge correctly awarded compensation based on the proper application of § 1 (7A).

Although the record could support the insurer’s contention that all personnel actions were based on company policy and procedures agreed and adopted by the workers’ unions and known to the employee, or the employee’s contention that some actions were not bona fide personnel actions or were intentionally taken to inflict emotional harm, we are confined to our appellate function and therefore recommit for the administrative judge to make the necessary findings pursuant to § 1 (7A).

In this case the judge has already found “that the injury resulted from a series of events within the employment.” (Dec. 9) On remand, he should make further findings with specificity on the other three points stated above.

So ordered.

_____________________________________ Edward P. Kirby Administrative Law Judge
_____________________________________ Carolynn N. Fischel Administrative Law Judge
_____________________________________ Sara Holmes Wilson Administrative Law Judge

Filed: November 22, 1996

[1] “Bumping” is an accepted procedure at General Electric which allows an employee to step into the position of another employee who has less seniority, which at times could leave that employee without work and subject to lay-off. See (Tr. 69.)
[2] The insurer also charges error in conducting the hearing “sooner than one week after [the § 11A report was] received by the parties.” See G.L.c. 152, § 11A(2), as amended by St. 1991, c. 398, § 30; see also Gatturna v. M.J. Flaherty Co.,
10 Mass. Workers’ Comp. Rep. ___ (March 29, 1996). This error, however, was harmless.
[3] Section 14 of St. 1991, c. 398 narrowed liability for mental or emotional injuries by substituting the words “the predominant” for “a significant.” This amendment, however, was deemed substantive by St. 1991, c. 398, § 106 and therefore does not apply to this case.