BECKETT v. CUMMINGS ALDEN, INC., No. 055470-88 (Aug. 29, 1996)


Pamela Beckett, Employee v. Cummings Alden, Inc., Employer, Hanover Insurance Co., Insurer

BOARD No. 055470-88Commonwealth of Massachusetts Department of Industrial Accidents
Filed: August 29, 1996

REVIEWING BOARD DECISION

(Judges Maze-Rothstein, McCarthy and Smith)

APPEARANCES

Frank Marchetti, Esq., for the employee

Leonard Y. Nason, Esq., for the insurer

MAZE-ROTHSTEIN, J.

The insurer appeals from a decision finding a compensable mental or emotional injury and ordering payment of G.L.c. 152, § 34
temporary total incapacity benefits from September 1, 1988 to March 1, 1992. The insurer seeks reversal or recommittal for clarification asserting that the judge failed to make adequate findings of fact and to correctly apply the appropriate standards under the 1986 enactment of § (7A).[1] Because the decision is inadequate for appellate review under G.L.c. 152, § 11C, we vacate and remand the case.

The “findings” consist primarily of recitations. The decision states the pertinent facts as follows:

The employee worked off and on since she was fifteen years old at Cummings Alden, Inc. (“Cummings”), a retail clothing store in Medford, Massachusetts. (Dec. 4.) She worked there as an assistant manager. Her goal was to become the manager. (Dec. 5.) When the position was given to someone who she felt was less qualified, the employee was depressed. (Dec. 5.)

Around August 28, 1986, she was hired as the manager for a Cummings store located in Watertown, Massachusetts, replacing a prior manager fired for stealing. (Dec. 4; Tr. 4, 12-13.) The employee claimed that this position stressed her to incapacity. (Dec. 5, 7.) According to her, some of the work-related stressors were the store’s disorganization, low staff morale, high theft, hidden inventory stored in the ceiling for one or two years, and lack of support by management. (Dec. 4-5.)

In 1988, the employee began to have episodes of increasing anxiety, insomnia, loss of appetite, nervousness, fatigue, anger, and depression. (Dec. 4-5, 7-8.) Upon request, her hours were reduced. (Dec. 5.) She was also made a floating manager assigned to various Cummings stores on an as-needed basis. Id.

Ms. Beckett first sought treatment with her personal physician in March 1988 and in May 1988 with a psychiatrist as her emotional disruption escalated. (Dec. 4; Tr. 22-24.) Nearly eight years before, in 1980 or 1981, she had psychiatric treatment for personal problems not related to her work at Cummings. (Dec. 8.) She resigned from Cummings on September 1, 1988, which was also her last day of work. (Dec. 3.) She stated that stress was her reason for leaving work. Id.

Ms. Beckett filed a claim for § 34 temporary total incapacity benefits medical benefits for a closed period from September 1, 1988 to March 1, 1992, when she returned to a different line of work for another employer. (Dec. 2-3.) Following a July 31, 1991 § 10A conference, an order was issued denying the claim. Ms. Beckett appealed to a hearing de novo.

The judge who presided at conference subsequently left the Department. (Dec. 1.) The case was reassigned to another judge for hearing. Id. Based on the lay and medical evidence, the employee was found to have sustained a compensable injury. (Dec. 10.) The judge adopted, in part, Dr. Stiegel’s medical opinion, as voiced in his October 2, 1991 deposition, that the employee suffered from a medically disabling depression causally related to her work activities at Cummings. Id; see also (Stiegel Dep, 26-27.)[2]
Dr. Stiegel opined that the stress specifically arose from the employee’s sense of betrayal by her employer. (Dec. 7; Stiegel Dep. 26.) The judge adopted Dr. Stiegel’s characterization of her feelings about the work experience as “impossible conflicting, contradictory situations” causing stress and “catch 22” situations, that had caused the by-products of reduced self-esteem, and a disabling depression. (Dec. 6-7; Stiegel Dep. 40-41.) The judge ordered § 34 weekly and medical benefits for the closed period from September 1, 1988 to March 1, 1992. (Dec. 11.)

Pursuant to G.L.c. 152, § 11B, a decision must set forth and decide each issue in controversy with brief statement of the grounds for each decision. The judge has a duty to “address the issues in a case in a manner enabling this [reviewing] board to determine with reasonable certainty whether correct rules of law have been applied to facts that could be properly found.” Praetz
v. Factory Mut. Eng’g. Research, 7 Mass. Workers’ Comp. Rep. 45, 47 (1993). Conclusions without adequate subsidiary findings do not meet the requirements of § 11B. Kilcullen v. San Vel ConcreteCorp., 4 Mass. Workers’ Comp. Rep. 182, 184 (1990). A hearing decision that fails to provide adequate findings is subject to reversal or remand. Praetz, supra at 47; G.L.c. 152, § 11C. Similarly, a decision that incorrectly or unclearly applies the relevant standards of law is subject to reversal or remand. G.L.c. 152, § 11C; see also Antoine v. Pyrotector,
7 Mass. Workers’ Comp. Rep. 337, 342 (1993). The decision now before us cannot stand under either of these principles. We, therefore, vacate and remand for de novo proceedings consistent with this opinion.

At issue was whether the employee suffered a compensable mental or emotional incapacity on the claimed date of injury, that arose out of the employment and not solely out of a bona fide personnel action(s). See supra note 1 [pre-1991 text of § 1 (7A)]. The decision of the administrative judge does not comport with the analytical requirements of § 1 (7A). Although the employee’s testimony was credited, (Dec. 9), efforts at findings are mostly recitations of the employee’s attestations about the events. Also, the decision does not specify what “event or series of events” caused the employee’s incapacity. See G.L.c. 152, § 1 (7A). As such we cannot provide proper appellate review. G.L.c. 152, § 11C; see also Praetz, supra at 47; Roldan v. H. W. Motor Lines,
8 Mass. Workers’ Comp. Rep. 410, 412 (1994).

Compensation may be ordered for a mental or emotional disability under § 1 (7A) only where: 1) a significant contributing cause of the disability is; 2) an event or series of events occurring within the employment that is not; 3) a bona fide, personnel action or; 4) an intentionally inflicted emotional harm in the guise of a bona fide
personnel action. G.L.c. 152, § 1 (7A); Walzak, v. Mass. RehabilitationComm’n., 10 Mass. Workers’ Comp. Rep. ___ (June 25, 1996).

Where a case presents both stressful events and bona fide employer actions, each must be assessed independently of the other under the statutory criteria. Some of the testimony recited could arguably be characterized as a bona fide personnel action, to wit, the employee’s transfer to the troublesome location. (Dec. 5.) Were the employee alleging the transfer only caused her mental unrest, unless done intentionally to cause it, her claim would be precluded under § 1 (7A). But the employee alleged events beyond the transfer which, if they significantly contributed to her condition, would be compensable. Unfortunately, the decision is silent as to which facts, if any, fell into the bona fide personnel action category and which went beyond that. See (Dec. 5.); see also supra note 1 [pre-1991 text of § 1 (7A)].

Furthermore, although the judge found that the employee suffered an injury in the course of her employment which caused or contributed to her impairment (Dec. 10), this finding falls short of deciding whether the employment was a significant contributing cause of the incapacity as required pursuant to § 1 (7A). Seesupra note 1 (text of applicable version of § 1 (7A).

Although it is not necessary to use the exact words “significant” or “contributing” cause, the decision does not disclose with sufficient certainty whether the judge applied the proper standard under § 1 (7A). See Walzak, supra. Compare Robinson’s Case, 416 Mass. 454, 460
(1993). We note that any pre-existing mental or emotional problems would not defeat the employee’s claim under § 1 (7A), if the evidence establishes that the work events meet the statutory standard of a “significant contributing cause of such disability.” G.L.c. 152, § 1 (7), supra n. 1.

In summary, the decision does not have sufficient specificity to disclose whether the judge applied § 1 (7A) correctly. Accordingly, we vacate and remand the decision. As the administrative judge who heard the case at conference is no longer with the Department, we forward this matter to the Senior Judge for reassignment for a hearin de novo.

So ordered.

_____________________________ Administrative Law Judge Susan Maze-Rothstein
_____________________________ Administrative Law Judge William McCarthy
_____________________________ Administrative Law Judge Suzanne E.K. Smith

Filed: August 29, 1996

[1] The relevant version of G.L.c. 152, § 1 (7A), as amended by St. 1985, c. 572, § 11 and St. 1986, c. 662, § 6, provides in pertinent part:

Personal injuries shall include mental or emotional disabilities only where a significant contributing cause of such disability is 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, demotion, or termination except such action which is the intentional infliction of emotional harm shall be deemed to be a personal injury within the meaning of this chapter.

Among other changes not relevant here, this aspect of § 1 (7A) was amended by St. 1991, c. 398, § 14 to provide:

Personal injuries shall include mental or emotional disabilities only where the predominant contributing of such disability is an event or series of events occurring within any employment.

This amendment was deemed substantive applicable only to dates of injury after its December 23, 1991 enactment by St. 1991, c. 398, § 106.

[2] The judge listed Dr. Stiegel’s reports as Exhibits 2-5 in his decision. (Dec. 3.) He did not list the October 2, 1991 deposition. It is clear, however, that the deposition, submitted to the prior administrative judge at the time of conference was entered into evidence. (Tr. 3-4.)