Garry Session v. The Boeing Company

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 06-109564

Employee: Garry Session

Employer: The Boeing Company

Insurer: Indemnity Insurance Company of North America

Additional Parties Treasurer of Missouri as Custodian of Second Injury Fund (Open)

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the briefs, heard the parties' arguments and considered the whole record. Pursuant to $\S 286.090$ RSMo, the Commission reverses the award and decision of the administrative law judge dated February 23, 2011.

The issues stipulated at the hearing were: (1) accident; (2) arising out of and in the course of employment; (3) medical causation; and (4) nature and extent of permanent partial disability.

The administrative law judge made the following findings: (1) the expert opinions of Drs. Stillings and Bassett are not persuasive; and (2) the evidence in this case does not demonstrate employee sustained an injury in accordance with the language of § 287.020.3(5) RSMo, or a mental injury from work stress under § 287.120.8 RSMo.

Employee submitted a timely Application for Review with the Commission alleging the administrative law judge erred because he disregarded the only medical expert opinions on record in favor of an opinion on medical causation that was not offered into evidence by any party.

For the reasons set forth herein, we reverse the award and decision of the administrative law judge.

Employee worked for employer as a machinist. On September 22, 2006, employee and a coworker, Richard Miller, had a discussion about racism. Mr. Miller told employee he'd read something interesting about racism and told employee he'd bring it in so he could read it. On September 25, 2006, employee discovered a piece of paper on his toolbox. Employee picked up the paper and read it. The paper was a printout of an email chainletter. The chain-letter was in defense of "white pride" and contained numerous racial slurs and indicated the author's view that there was nothing improper about using these slurs. Employee felt shocked and threatened after reading the paper. He did not associate the incident with his conversation with Mr. Miller on September 22, 2006; rather, employee was afraid the letter meant someone was out to get him. He took the

Improve: Garry Session

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letter to his supervisors, who called security. Richard Miller then came forward and confessed that he'd left the letter on employee's toolbox. Employer disciplined Mr. Miller with three days suspension and sent him to sensitivity training.

Employee felt better when he learned the paper was from Mr. Miller, as he'd known Mr. Miller for a long time and he realized Mr. Miller didn't intend the letter as threatening. Employee was, however, reminded of previous incidents in which he'd felt threatened or harassed because of his race at work, such as when he believed someone had scratched the letter "N" into the paint on his truck. Employee went to a counselor on employer's premises to discuss the events and his reaction to them. Employee did not receive any other psychiatric treatment after the incident on September 25, 2006, and does not believe he needs any such treatment.

Dr. Wayne Stillings and Dr. Gregg Bassett, the two psychiatrists who testified in this matter, agreed that employee suffered psychiatric injury as a result of the incident of September 25, 2006. Dr. Stillings opined that the incident was the prevailing factor causing aggravation of employee's preexisting bipolar II disorder and employee's developing a paranoid disorder, which he rated at 15% and 25% permanent partial disability of the body as a whole, respectively. Dr. Bassett opined that the incident was the prevailing factor causing employee to sustain an adjustment disorder, which Dr. Bassett rated at 4% permanent partial disability of the body as a whole. Dr. Bassett believed employee also suffered from a preexisting paranoid disorder, which he rated at 2% permanent partial disability of the body as a whole.

There are no contrary expert opinions in the record. The nature of employee's claimed injury is complex and beyond the realm of lay understanding, and we can discern no basis for rejecting the consistent opinions from both Drs. Stillings and Bassett that employee suffered a psychiatric injury and permanent disability. As to the nature or specific diagnosis referable to that injury, we note that both doctors believe employee has a paranoid disorder, although they disagree as to whether the condition was preexisting. On this question, we credit Dr. Stillings's opinion.

We find that employee's discovering and reading the chain-letter on September 25, 2006, was the prevailing factor causing employee psychiatric injury in the form of a paranoid disorder and permanent disability to the extent of 7.5% permanent partial disability of the body as a whole.

#### Accident

We conclude that employee has met his burden of demonstrating he sustained an accident for purposes of the Missouri Workers' Compensation Law. The language of § 287.020.2 RSMo defines "accident" as follows:

The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury.

caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

The claimed injury in this matter resulted from employee picking up and reading an offensive, racially-themed chain-mail letter that a coworker left on his toolbox. We conclude that these circumstances constitute an "accident." The event was unexpected and traumatic: employee had discussed racism with his coworker and may have been aware the coworker was bringing a document about racism to work, but there is no evidence employee was expecting, when he came into work on September 25, 2006, to find on his toolbox a chain-mail letter advocating the use of racial slurs. The event is identifiable by time and place: employee established the time and place of the incident with his testimony. The event produced, at the time, objective symptoms of an injury: employee experienced shock and fear that someone was out to get him; the doctors who testified in this case agreed that these were symptoms of a psychiatric injury employee sustained at that time. Finally, employee's work was not merely a triggering or precipitating factor: both doctors agreed, rather, that the accident was the prevailing factor resulting in psychiatric injury.

There is no need to consider § 287.120.8 RSMo, in this matter. That section applies to employees who claim work-related stress as an injury. See Williams v. Depaul Health Ctr., 996 S.W.2d 619 (Mo. App. 1999). The present matter is not a claim of work-related stress but instead involves a psychiatric injury sustained in the workplace as a result of a specific unusual event.

We conclude that employee has met his burden on the issue of medical causation. Section 287.020.3(1) RSMo provides, as follows:

An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

We have found that the accident of September 25, 2006, was the prevailing factor in causing employee to sustain a paranoid disorder and a 7.5 % permanent partial disability of the body as a whole. Our findings are based on the testimony from both psychiatrists. We conclude that the accident of September 25, 2006, was the prevailing factor in causing employee's resulting medical condition and disability.

We are convinced employee has met his burden of demonstrating that his psychological injuries arose out of and in the course of his employment. Section 287.020.3(2) RSMo provides, as follows:

An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

We have already determined that the accident of September 25, 2006, is the prevailing factor in causing employee's psychiatric injury. We must now determine whether employee has satisfied the second prong of the foregoing section, namely, that his injury did not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of work in normal life.

In Pile v. Lake Reg'l Health Sys., 321 S.W.3d 463 (Mo. App. 2010), the court made clear that the application of $\S 287.020 .3(2)$ (b) involves a two-step analysis. The first step in the analysis is to "determine whether the hazard or risk is related or unrelated to the employment." Id. at 467. The court explained that "[o]nly if the hazard or risk is unrelated to the employment does the second step of the analysis apply. In that event, it is necessary to determine whether the claimant is equally exposed to this hazard or risk in normal, non-employment life." Id.

Here, we are convinced that employee's injuries stemmed from a hazard or risk related to his employment. Employee's job for employer involved being on premises at employer's worksite and working in proximity to other individuals. The plain language of $\S 287.120 .3(2)$ (b) does not restrict our inquiry to inanimate hazards or risks, such as slippery floors or heavy objects. Simply stated, employee's presence in the same workplace as Mr. Miller subjected employee to the risk that Mr. Miller would place an inappropriate and racially-themed letter on his toolbox. Employee's injuries came directly from that risk. Obviously, receiving such a letter from Mr. Miller was not part of employee's job duties or work tasks, but the hazard or risk that such an event might occur was a part of being present at employer's workplace and working alongside Mr. Miller.

We find that Mr. Miller was the nexus to employee's work. We need not proceed to the second step of the analysis. We conclude that employee met his burden of proving his injuries arose out of and in the course of employment.

Employee has met his burden of proving he sustained permanent disability as a result of the accident of September 25, 2006. We have found employee sustained a 7.5 % permanent partial disability of the body as a whole referable to his developing a paranoid disorder. Accordingly, employer is liable under $\S 287.190$ RSMo, for 30 weeks of permanent partial disability benefits at the stipulated rate of $\ 376.55, for a total of $\ 11,296.50.

Based on the foregoing, the Commission concludes and determines that employee met his burden of proof on the issues of accident, medical causation, whether the claimed