James Hoerschgen v. Von Hoffman Corp.

disputed issues, without clearly identifying the evidence upon which those conclusions rest. As a result, we have an award in which the issues appear to have been resolved, but we are left to guess at what the fact-finder believed the facts to be. The courts have spoken to this problem before and made clear the importance of rendering affirmative findings in these matters.¹

Employee worked for employer for almost 40 years. Employee's last position was as a bindery shift manager. Employee's tasks included supervising anywhere from 12 to 45 people, ordering parts to keep machinery running, managing inventory, dealing with people problems, and other issues.

Employee has suffered from heart problems since 1976. Employee's father, mother, and daughter all have experienced health problems related to cardiac conditions. In employee's case, chronically high levels of cholesterol combined with an inability to tolerate the medications doctors prescribed to correct this condition resulted in employee's developing coronary artery disease. Beginning in April 2002, employee was off work for his heart condition. Employee had multiple stents placed in his arteries and underwent bypass surgery on September 11, 2002. He returned to work in January 2003.

In March or April 2004, a new supervisor, Garrett Shropshire, came to work for employer. Employee didn't like working for Mr. Shropshire. Mr. Shropshire's mannerisms and supervisory style caused employee some stress. Employee provided numerous examples of stressful situations created by Mr. Shropshire. From employee's testimony, we find the following facts as to the stressful incidents and situations employee experienced working for Mr. Shropshire.

Employee experienced frustration when Mr. Shropshire assigned him a particular task but then assigned the same task to another employee. For example, Mr. Shropshire once told employee to repair a spiral binding machine. Employee ordered the parts for the repair, but by the time they came in, Mr. Shropshire had directed another employee to fix the machine. Incidents like this confused employee and made it difficult for him to know what he was supposed to be doing at work.

Mr. Shropshire didn't provide a lot of leeway for his subordinates to express themselves or advance their own ideas. Mr. Shropshire did, however, take recommendations from employees and even adopted some of employee's own ideas, although not to the extent employee would have liked. There was a lot of trial and error going on during this time period, as employer was undergoing a change in corporate ownership. Mr. Shropshire sometimes commented that he would rather have inexperienced managers than his

---

¹ See, for example, the court's comments in *Stegman v. Grand River Reg'l Ambulance Dist.*, 274 S.W.3d 529, 532 (Mo. App. 2008): "Here, there are literally pages of testimony summarization. There are also pages of substantial discussion of abstract legal theory. The ALJ certainly diligently summarized all of the evidence as an impartial and uncritical scrivener. No doubt it was a useful reference tool for the ALJ's own use in understanding the facts. But because of the absence of findings (that is, the lack of critical evaluation and the failure to draw pertinent inferences from the evidence), the summaries, with all due respect, are of little value to this court."

present group. Mr. Shropshire was not quick with encouragement or praise, but employee acknowledged that he did, at least on occasion, tell employee he was doing a good job.

Mr. Shropshire was loud and animated during meetings. He also used vulgarity. He once told a coworker, Dan Rice, to come bend over and spread his legs because he was going to get it good. Vulgar language and profanity were common in the workplace. Mr. Shropshire never cursed directly at employee, did not call him vulgar names, did not get in employee's face, did not get violent or threaten to use violence toward employee, and did not yell at employee.

Mr. Shropshire instructed the managers to start rotating shifts. Employee didn't like this, as he had worked first shift for most of his almost 40 years working for employer. But employee acknowledged on cross-examination that part of the idea was to foster group similarity and cross-training among the managers and that he wasn't specifically targeted by Mr. Shropshire for rotation to different shifts.

Mr. Shropshire once put his arm around employee's shoulders as they walked together. Employee took offense at this and felt very uncomfortable, but appeared at a loss to explain why. Instead, employee urged (as he did with many of his complaints about Mr. Shropshire) that it was more the way Mr. Shropshire did things that bothered him. We find employee's testimony as to some intangible or inexpressible sense of "the way Mr. Shropshire did things" unconvincing in terms of providing a clear or credible picture of Mr. Shropshire's actions.

Employee described waking up from nightmares crying, suffering constant chest pain, not being able to think right, and disturbed sleep patterns as symptoms of the stress he encountered working for Mr. Shropshire. Employee testified that he'd never in his life experienced stress like that. We find this testimony from employee difficult to believe, especially in light of his admissions on cross-examination, when he was confronted with the medical records setting forth a considerable history of psychiatric issues predating Mr. Shropshire's coming to work for employer in 2004. We note that employee testified on direct examination that his stress prior to encountering Mr. Shropshire was nothing more than normal stress that never interfered with his ability to do his job. But employee admitted on cross-examination that doctors diagnosed him with chronic anxiety disorder and depression in 2002 and 2003, that his heart problems and surgery in 2002 caused him to be very depressed, and that he told Dr. Schlegel (who in 2002 was prescribing Zoloft for employee) that he was having a lot of anxiety related to coworkers who were leaving employer. These contradictions, in our view, further damage the credibility of employee's testimony as to the level of stress he experienced working for Mr. Shropshire. Ultimately, we find that employee was experiencing a lot of stress in his life, and having considerable difficulty managing it, before Mr. Shropshire came to work for employer.

Employee presented testimony from his wife, Yvonne Hoerschgen, and his longtime friend and coworker, Dan Rice. We find Ms. Hoerschgen lacking in credibility owing to her contradictory statements about whether employee experienced psychiatric problems before encountering Mr. Shropshire, in addition to her lack of firsthand knowledge of what it was like working with Mr. Shropshire. We find Mr. Rice lacking credibility owing to Mr. Rice's longstanding friendship with employee and also Mr. Rice's own history of

Injury No.: 04-144251

Employee: James Hoerschgen

interpersonal problems with Mr. Shropshire. We do not find Mr. Rice's testimony to be an unbiased source of evidence as to the level of stress Mr. Shropshire caused employees. Accordingly, we decline to find any facts from the testimony of these two witnesses.

Several other of employee's coworkers testified as to what they experienced working with Mr. Shropshire, as summarized in the administrative law judge's decision. We find the following facts from the credible testimony of Preston Hunter, Heather Sneller, Todd Bone, Mike Bax, and Mike McKenna. Mr. Shropshire's management style was loud and aggressive and he had high expectations, but his behavior was not so unusual that it caused these individuals stress beyond the normal type of stress they regularly encountered at work for employer. Mr. Shropshire did not treat employee differently from any of the other managers.

The parties presented conflicting expert medical testimony as thoroughly summarized in the administrative law judge's award. After careful consideration, we find Drs. Caffrey and Mankowitz more credible than Drs. Halfaker and Kennett. Dr. Mankowitz, in particular, convincingly explained that stress does not cause plaque to build up in arteries, but rather high cholesterol and poorly controlled blood pressure are responsible for employee's cardiac condition. We credit Dr. Mankowitz's ultimate opinion that employee's stress at work was unrelated and had no bearing on the development or progression of employee's coronary artery disease. Relying on the credible testimony from Dr. Mankowitz, we find that employee's cardiac condition is a product of his preexisting and longstanding high levels of cholesterol and uncontrolled high blood pressure.

Whether employee suffered a mental injury for purposes of $\S$ 287.120.8 RSMo

We agree with the administrative law judge that employee failed to meet his burden of proving he suffered a mental injury arising out of and in the course of employment pursuant to $\S 287.120 .8$ RSMo, which provides, as follows:

Mental injury resulting from work-related stress does not arise out of and in the course of the employment, unless it is demonstrated that the stress is work related and was extraordinary and unusual. The amount of work stress shall be measured by objective standards and actual events.

Employee argues stress related to his encounters and interactions with Mr. Shropshire caused him to suffer mental injury as identified by his expert, Dr. Halfaker. The foregoing section imposes a burden upon employee to show (1) that the stress was work-related; and (2) that the stress was extraordinary and unusual.

The Missouri courts have provided some guidance on the question whether work stress can be said to be extraordinary and unusual. In Carnal v. Pride Cleaners, 138 S.W.3d 155, 157 (Mo. App. 2004), the court held that an employee met her burden of proving she experienced extraordinary and unusual stress when she provided evidence demonstrating she was supervised by her ex-husband following a corporate reorganization and that he treated her in an indifferent, demanding, and uncaring manner, directed a great deal of animosity toward her, cursed at her using language he did not employ with other staff, and

also that her work duties increased relative to other employees, her work-space and facilities were in substantially worse condition than those of other employees, and there was a higher turnover rate at her workplace compared with others owned and operated by the same company. Id. at 157-59.

Here, employee provided evidence as to a number of events and interactions with Mr. Shropshire, but we are not convinced that any of them rise to the level of stress as exemplified in Carnal. Mr. Shropshire used vulgar language, but vulgar language was not unusual in the workplace, and most importantly, it was not directed at employee. Mr. Shropshire was demanding and had loud mannerisms, but we have not found that he exhibited any personal animosity toward employee. Likewise, we have not found that employee's work duties increased relative to other employees, nor have we found that his workspace or facilities were in substantially worse condition than those of other employees. In addition, owing to employee's contradictory statements regarding his preexisting stress and psychiatric issues, we have found employee's testimony as to the level of stress he experienced as a result of working with Mr. Shropshire to be unconvincing and lacking credibility. We have likewise found the testimony from employee's wife and Dan Rice lacking credibility.

[T]he proper comparison for purposes of Section 287.120.8 is to compare Employee's work-related stress with the stress encountered by employees having similar positions, regardless of employer, with a focus on evidence of the stress encountered by similarly situated employees for the same employer.

Williams v. DePaul Health Center, 996 S.W.2d 619, 628 (Mo. App. 1999) (citation omitted).

The parties provided evidence from employee's coworkers. We have found, based upon the credible testimony from Preston Hunter, Heather Sneller, Todd Bone, Mike Bax, and Mike McKenna, that Mr. Shropshire treated everyone in the same manner and that, while his management style was aggressive and he had high expectations, his behavior was not so extreme that it caused an unusual level of stress in these other employees.

It's clear that, subjectively speaking, employee reacted to Mr. Shropshire's antics with a high level of stress and emotion. But when we apply the objective standards mandated under $\S 287.120 .8$, we do not believe that any of the actual events identified by employee, considered alone or taken together, rise to the level of work-related stress that can be properly described as extraordinary and unusual. Accordingly, we must conclude that employee did not sustain a mental injury arising out of and in the course of employment for purposes of $\S 287.120 .8$.

The foregoing is dispositive of employee's claim of mental injury from stress at work, as he has failed to establish he suffered an injury arising out of and in the course of employment pursuant to $\S 287.120 .8$.

The only remaining question is whether employee's work stress was a substantial factor causing him to sustain physical injury in the form of aggravation of his preexisting coronary artery disease. We agree with the administrative law judge that employee failed to meet his burden of proof on the issue of medical causation. Section 287.020.2 RSMo provides, as follows:

An injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable because work was a triggering or precipitating factor.

We have found Dr. Mankowitz more credible than Dr. Kennett on this issue. We have adopted Dr. Mankowitz's opinion that employee's stress at work was unrelated and had no bearing on employee's coronary artery disease. Accordingly, we conclude that work was not a substantial factor causing employee to suffer any medical condition or disability.

By virtue of our findings and conclusions as to the two dispositive issues discussed herein, all other issues are moot.

We supplement the award of the administrative law judge with the foregoing findings, conclusions, and analysis. In all other respects, we affirm the award.

The award and decision of Administrative Law Judge David L. Zerrer, issued July 19, 2011, is attached hereto and incorporated herein to the extent not inconsistent with our findings, conclusions, and analysis in this supplemental opinion.

Given at Jefferson City, State of Missouri, this $20^{\text {th }}$ day of June 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: James E. Hoerschgen

Injury No. 04-144251

Dependents:

Employer: Von Hoffman Corp.

Address: 000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 1,538.46
3. Weekly compensation rate: $\$ 675.90 / \ 354.05
4. Method wages computation: stipulated

1. Amount of compensation payable: None

Unpaid medical expenses: None

-0- weeks of temporary total disability (or temporary partial disability)

-0- weeks of permanent partial disability from Employer

-0- weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning , for Claimant's lifetime

1. Second Injury Fund liability: Yes No X Open

TOTAL: NONE

1. Future requirements awarded: None

Employee: James E. Hoerschgen

Injury No: 04-144251

Dependents:

Employment: Von Hoffman Corp.

Additional Party: Second Injury Fund

Insurer: Sentry Insurance

Checked by: DLZ

On the $13^{\text {th }} day of April, 2011, and the 28^{\text {th }}$ day of April, 2011, the parties appeared before the undersigned Administrative Law Judge for final hearing. The Claimant appeared in person and by his attorney, Roger Brown. The Employer appeared by its corporate representative, Heather Sneller, and by its attorney, Stephen McManus. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appeared by Assistant Attorney General Charles Clark. The record was ordered to remain open for 30 days after the close of the hearing.

The parties have entered into a stipulation as to certain facts which are not at issue in this claim as follows, to wit: On or about the $16^{\text {th }}$ day of November, 2004, Von Hoffman Corp. was an employer operating subject to the Missouri Workers' Compensation Law; the Employer's liability was fully insured by Sentry Insurance; on the alleged injury date of November 16, 2004, James E. Hoerschgen was an employee of the Employer; the Claimant was working subject to the Missouri Workers' Compensation Law; the employment occurred in Cole County, Missouri, and the parties agree that Cole County, Missouri, is the proper venue for this hearing; the Claimant notified the Employer of the injury as required by Section 287.420; the Claimant's claim was filed within the time prescribed by Section 287.430; at the time of the claimed

accident/ occupational disease, Claimant's average weekly wage was $\ 1,538.46, sufficient to allow the following compensation rates: $\ 675.90 for temporary total disability and permanent total disability and $\ 354.05 for permanent partial disability; no temporary disability benefits have been paid prior to the date of this hearing; the Employer has paid no medical benefits prior to the date of this hearing; Claimant's attorney seeks approval of an attorney fee of 25 % of the amount of any award.

Joint Exhibits:

1. Deposition transcript of Mike Bax dated April 6, 2011.
2. Deposition transcript of Mike McKenna dated April 6, 2011.

Claimant's Exhibits

A. Missouri Heart Center.

B. Missouri Heart Center.

D. Capital City Medical Associates (Dr. Haight).

E. Capital City Medical Associates (Dr. Haight).

F. Exhibits attached to Dr. Haight's deposition.

G. Deposition transcript of Dr. Haight.

H. Deposition transcript of Dr. Kennett.

I. Records of Counselor Richard Hayes.

J. Dr. Haight's off work slip of 11/16/04.

K. Dr. Haight's off work slip of 12/21/04.

L. Dr. Haight's medical.

N. Counselor Tom Vaughn's records from Capital Region.

O. Letter by Von Hoffman to Claimant regarding Tom Vaughn.

P. Tom Vaughn's note of 12/28/04.

Q. Dr. Haight's Department of Labor report form of 11/16/04.

W. Report of Dr. Halfaker.

X. Performance Review of Claimant by Preston Hunter.

(Exhibit C was not offered)

Employer's Exhibits:

1. Deposition transcript of Dr. Keith Mankowitz dated October 28, 2010.
2. Deposition transcript of Dr. Patrick Caffrey, Ph.D., dated November 25, 2008.
3. Deposition transcript of Todd Bone dated April 6, 2011.
4. Report of Claimant's discussion with Heather Sneller regarding Garrett Shropshire.

Whether the Claimant sustained an accident/occupational disease?

Whether the accident/occupational disease arose out of the course of and scope of employment?

Whether the accident/occupational disease caused the injuries and disabilities for which benefits are now being claimed?

Whether the Claimant has sustained injuries that will require future medical care in order to cure and relieve the Claimant of the effects of the injuries?

Whether temporary total benefits are owed to the Claimant?

The nature and extent of any permanent disabilities?

The liability of the Second Injury Fund for permanent total disability/enhanced permanent partial disability?

A legal file was established for this hearing which consisted of the following documents, to wit: Claim for Compensation, filed with the Division May 10, 2005; Amended Claim for Compensation, filed with the Division September 28, 2006; Second Amended Claim for Compensation, filed with the Division July 26, 2010; Answer of Employer to Claim for Compensation, filed with the Division May 31, 2005; Answer of Employer to Amended Claim for Compensation, filed with the Division November 1, 2006; Answer of Employer to Second Amended Claim for Compensation, filed with the Division July 29, 2010; Answer of Second Injury Fund to Amended Claim for Compensation, filed with the Division November 3, 2006; Answer of Second Injury Fund to Second Amended Claim for Compensation, filed with the Division August 5, 2010; Request for Final Hearing, filed with the Division December 17, 2010.

James Hoerschgen, Claimant herein, testified in his own behalf. Claimant testified that he is married with four children, all of whom are emancipated.

Claimant testified that he began working at Von Hoffman, also referred to herein as RR Donnelley, from time to time, in September 1965. He last worked at Von Hoffman on November 16, 2004. His last job was a bindery shift manager. Claimant worked as a bindery operator, line supervisor, supervisor, and finally a shift manager. Claimant testified that his job duties as a shift manager included: overseeing lines, dealing with people problems, ordering parts for machinery, completing inventory for bindery, as well as other issues. He testified that he would supervise anywhere from 12 to 45 people. Claimant shared an office with other shift managers. Claimant became a shift manager in 2000. Claimant also testified that in 2000 the company began to shift to a more corporate atmosphere, which required increased volumes of paperwork. He further stated that this coincided with rotation shifts every two months from first to second to third shift.

Claimant testified that he was off work beginning in April 2002 for a heart condition. He admitted that he did have a stent placed and then a triple bypass on September 11, 2002. He later testified that he actually had five stents that were either inserted or removed before his bypass surgery.

Claimant testified that prior to 2002, he had normal stress on the job, including little problems and everyday stress. He testified that he got through this by talking with friends and did not have any problems with stress at this time.

Claimant testified that he returned to work in January 2003 after his heart surgery. He testified that when he returned to work that there was no job duty that he could not perform. He testified that the bindery manager, Tim Kotter, was his direct supervisor. He further testified that

in 2000 the bindery manager was Jean McKim. Thereafter, it was Gary O’Toole and in 2003 Tim Kotter. Preston Hunter was an interim bindery manager in 2003.

Claimant testified that under Tim Kotter his job duties included: working with people, working with various lines, ordering supplies, and maintenance. During this time in 2003, Von Hoffman was producing three to four million books per month before suffering a slow down. Claimant further testified that upon his return to Von Hoffman in January 2003, he became a "champion" of a line, wherein he supervised 15 people.

Claimant then admitted to having increased duty in 2003 under Tim Kotter, which did cause increased stress, especially when talking with others. Claimant testified to working overtime two to three days a week, which included working with vendors. He then testified that he was under no stress in 2003.

Preston Hunter subsequently took over as interim bindery manager and Claimant testified that his job duties were not changed.

Claimant testified that Garrett Shropshire began as bindery and plant manager in March or April of 2004. He testified that Mr. Shropshire was not neat, was vocal, and was very different and not like someone Claimant was used to working with. He further stated that he was not experiencing stress until Mr. Shropshire took over as bindery manager.

Claimant testified that Mr. Shropshire initially had all of the supervisors and managers continue their normal job duties in order to make an evaluation of each one. He also held regular meetings, including both managers and supervisors.

Claimant testified that under the management of Preston Hunter and Tim Kotter, the opportunity for the shift managers to express their thoughts was greater than it was under Mr. Shropshire. He testified that Mr. Shropshire only wanted to pursue his own way of thinking. On

cross-examination Claimant admitted that Mr. Shropshire would often take the recommendations of other employees. Claimant recalled that some of his own ideas were taken and utilized by Mr. Shropshire.

Claimant testified that he would be assigned a job to oversee on one day, but another manager would be overseeing it the following day. He testified that this practice confused him and made his job hard to follow. He stated that he questioned Mr. Shropshire about this practice, but did not receive a response. Although, Claimant did admit that by having another supervisor handle his job duties it actually decreased his work load.

Claimant further noted that Mr. Shropshire substantially changed how the plant functioned in the repair and case area. In Claimant's opinion, this slowed down the process on the line.

Claimant testified that on one occasion Mr. Shropshire had asked him to repair a spiral binding machine. Claimant ordered the parts to do so; however, before the parts came in Mr. Shropshire had directed someone else to fix the machine. On another occasion, Mr. Shropshire and Claimant had a disagreement over who would purchase a wrapper, and Mr. Shropshire eventually purchased the wrapper machine without Claimant's knowledge.

Claimant testified that Mr. Shropshire's ideas would cause the plant to slow down and this would cause problems with the staff, because the staff was given bonuses based on the productivity of the plant. Claimant then testified regarding a dispute with Mr. Shropshire over the type of glue to use. Claimant disagreed with Mr. Shropshire's decision, but later admitted that the change to cheaper glue was a decision from the corporate office. Claimant testified that no other manager acted this way previously. He then testified to a time when Mr. Shropshire

Instructed him to not worry about the budget when filling the inventory room. However, when Claimant was questioned about going over budget, Mr. Shropshire did not stand up for him.

Claimant further testified that Mr. Shropshire was very vocal at meetings. He stated that on one occasion Mr. Shropshire told Dan Rice that he needed to come in and bend over and spread his legs because he was going to get it good. Claimant testified that this comment was not directed at him, but he witnessed it and found it unprofessional. Claimant also testified that Mr. Shropshire encouraged them to try different approaches, which did not always work. However, again on cross-examination he testified that some of Mr. Shropshire's ideas and recommendations were successful.

Claimant testified that Mr. Shropshire's tone was "vulgar;" but on cross-examination he testified that he had heard words far worse in the bindery and printing press area than what Mr. Shropshire said. Claimant further testified that he occasionally cursed at the bindery. He then testified that Mr. Shropshire had occasion to place his arm on Claimant's shoulder when they were walking down the hallway, which made Claimant feel "strange." Claimant also testified that Mr. Shropshire commented that he would rather have "six new greenhorns" than his present group of supervisors.

Claimant testified that one of the final incidents occurred when Mr. Shropshire told Claimant in October or November 2004 that he wanted him to work second shift. Claimant felt that since he had been working at the Employer for 39 years, and worked first shift for a number of those years, that this move indicated Mr. Shropshire's desire to get rid of him. Claimant testified initially that he did not know why Mr. Shropshire started rotating shifts. However, when confronted with his deposition transcript he recalled that it was done to foster more group similarity and cross-training.

Claimant testified about his desire to retire during this time period. Claimant admitted that he had talked about retiring at this time with other supervisors and managers. He further admitted that he felt he could not give a full eight hours of work at this time due to his legs.

Claimant further stated that during 2004 he would be upset when he went home from work and that he would make his wife upset, as well. He also stated that he was not sleeping well and often had nightmares. He further stated that his chest would hurt five days a week at this time. The Claimant did tell both Dr. Haight and Dr. Kennett about the problems he was having at work with Mr. Shropshire. He states that neither Dr. Kennett nor Dr. Haight ever allowed the Claimant to return to work.

On November 16, 2004, the Claimant spoke with Heather Sneller in the HR department at Von Hoffman. He provided her with an off-work slip issued by Dr. Haight. He never returned to work after this date. Claimant admitted on cross examination that he had not followed up with either of them recently about his ability to return to work. He also states that he only discussed returning to his same job at RR Donnelley. There were no discussions about his ability to return to work in other fields. He further admitted that he had not sought out any type of help from a placement office or vocational rehabilitation services. He has not applied for any jobs at any employer. He states he did one time look in the newspaper to see if there were any jobs available. He did have a job working as a taxidermist for a few hours per day for a relative. He agreed that he probably could return to work for an eight hour day at a more sedentary level position. The only reason he could not return to work at a more full duty position is due to his inability to stand throughout the day because of bad knees.

Claimant testified that meeting with Counselor Hayes helped considerably. He testified that Counselor Hayes talked to him about approaching a fork in the road and having to make a

choice as to the path he takes. On cross-examination Claimant testified that he understood this analogy, even though he could not understand Mr. Shropshire. In fact, he stated that these analogies helped him in his recovery.

The Claimant indicated that he went back to Dr. Kennett in 2005 for more stent placements. In 2007, Claimant received more treatment from Dr. Kennett with regard to Claimant's stents The Claimant testified that he feels much better now. However, he still has nightmares occasionally and has occasional chest pain.

The Claimant indicated that he believes the company was trying to get rid of some of its more senior managers. He explained that Dan Rice was moved around the plant frequently and he felt that was in an effort to get rid of him. However, on earlier direct examination the Claimant indicated that the Claimant was a part time supervisor and would be moved around regularly in that position. Claimant also testified that Mr. Shropshire would use Charlie Castle on a regular basis throughout the facility. He explained that he would use him a lot because of his knowledge of the plant.

On cross-examination, Claimant admitted that he was unaware of any employee or supervisor or manager that ever made a single complaint against Mr. Shropshire while they worked for him. He is unaware if anybody ever filed any type of formal complaint regarding Mr. Shropshire and his behavior.

Claimant admitted that Garrett Shropshire never called him any type of vulgar name. Mr. Shropshire never hit him. He never threatened to hit him. Mr. Shropshire also never got in the Claimant's face and screamed at him. Claimant never witnessed Mr. Shropshire do any of these types of things to any of the other shift managers.

Claimant testified that he had chest pain as far back as 1976. He testified that he had high cholesterol as far back as 1976, which included LDL, or bad cholesterol. He admitted that he tried at least four different medications for the high cholesterol. According to him, all of his medications had side effects that he was not willing to put up with even for the benefits of the medication. The Claimant also testified that from approximately the mid-1980s up until 2002 he was also bothered by a right flank and lower abdominal pain. He further admitted that he was worked up in numerous forms and with numerous diagnostic tests to determine the cause of this right flank pain. To this day it has never been identified. However, it did not appear that he had much, if any, of this pain going on after his heart condition. He was worked up by neurologists, orthopedists, gastroenterologists, etc. The pain was so bad that it would take him into the emergency room.

The Claimant also indicated that his father had a stroke and multiple bypass surgeries. His mother had a "light" heart condition. He indicated that she used medications to stabilize her condition. He also has a brother who has had a stroke. He has a daughter that has also had multiple strokes and a heart condition. The Claimant also has a history of high blood pressure/hypertension, high triglycerides and high lipid profile. The Claimant admitted the high blood pressure and high cholesterol were sometimes out of control as he was not taking his medications regularly. The Claimant at one point felt that the right flank pain may be some type of anxiety disorder. Dr. Boyer discussed putting him on Zoloft at that time.

Claimant testified on direct examination to having no problems with stress or depression prior to 2004. However, upon being questioned about the multiple notes in his medical records prior to 2002 regarding depression, anxiety and stress, he testified that all of these anxiety and depression conditions were related to his heart condition. He then testified that he did tell Dr.

Caffrey in 2002 that he was having anxiety and depression and that it was related to work. Even though he was not working, he realized that several of his co-employees were being laid off or terminated.

Claimant testified that he fell and fractured his elbow in 2003. He also went to Dr. Schneider in January 2005 complaining of right knee symptoms. In 2005 he did have a medial meniscectomy of the right knee. Claimant testified that in 2008, he had bilateral knee surgeries to clean the inside of the knee. He was having knee problems prior to the surgery and continued to have significant knee problems after the surgery. He stated that he could hardly stand on his knees for eight hours. The Claimant also had bilateral carpal tunnel releases in 2006. He denied any residual symptoms from same. The Claimant had lasix eye surgery. He also has two hearing aids.

Claimant then testified that he believes his depression and anxiety actually began in 2000 or 2002. He was on 12 different medications at that time. The anxiety and depression was so strong that his wife told him his whole personal life changed.

Claimant admitted that he applied for social security benefits in 2002 after his heart condition. He stated that his doctors told him he needed to do this. He advised he was disabled at that time due to his anxiety, depression, and heart condition.

Claimant testified he actually stopped taking Zoloft in approximately April 2003, as it resulted in the Claimant having erectile dysfunction. However, he did testify that he continued to use other medications for psychiatric conditions throughout 2003 and 2004. Claimant admitted that he was taking the same medications during 2004 after Mr. Shropshire began working at Employer as Claimant was taking prior to the time Mr. Shropshire began working with the Claimant.

Claimant's wife, Yvonne Hoerschgen, testified on behalf of Claimant. She testified that she worked for the Missouri Department of Labor for 36 years processing workers' compensation reports of injury. Mrs. Hoerschgen testified regarding Claimant's change in mood after Mr. Shropshire began in 2004. She testified that her husband was not depressed about work prior to 2004. She testified that she did not recall stating that Claimant tensed up nor had increased anxiety when he talked about work, as was noted in medical records from 2002. She further testified that she did not recall that he was diagnosed with anxiety and depression before 2004. However, she did testify that she recalls he was given Zoloft, but he did not take it, because it made him feel "funny."

On direct examination, she testified that her husband began having nightmares and general mood changes for the worse after 2004 when Mr. Shropshire began at Von Hoffman. However, on cross-examination she admitted that Claimant was having nightmares prior to Mr. Shropshire's employment at Von Hoffman. She further testified that although she was aware that her husband applied for Social Security Disability in 2002, she did not know that he claimed depression as an aspect of his disability.

Mrs. Hoerschgen further testified that before Mr. Shropshire began at Von Hoffman her husband never brought work home with him and that the Claimant had no "stressors" in his life. On cross examination the Claimant's wife was asked about several potential "stressors" happening prior to 2004. First, she acknowledged that in 1998, her daughter was diagnosed with a heart condition. In 2002, the Claimant's mother was diagnosed with dementia. The Claimant went through multiple operations on his heart. All of these occurred prior to Shropshire's employment and would likely cause additional stress.

Mrs. Hoerschgen testified that the Claimant cannot work a full eight hour job where he stands for long periods of time because of Claimant's knee condition. She testified that he often has to take breaks when gardening or walking for an extended amount of time.

Dan Rice testified on behalf of the Claimant. Mr. Rice testified that he was employed by Von Hoffman for 37 years before retiring in 2005. During his time with Von Hoffman, he held various job titles including shift manager and supervisor. Rice testified that he interacted with the Claimant on a daily basis, performing tasks such as buying supplies.

Mr. Rice testified concerning his observations of Garrett Shropshire. Mr. Rice then described several incidents involving Mr. Shropshire that formed his opinion that he was unusual. Mr. Rice recounted an incident where Mr. Shropshire wore a mask of sorts and went around the office singing "I love you, you love me." He then recalled a meeting where Mr. Shropshire stated that everyone needed to get their Vaseline ready. He also recalled Mr. Shropshire being loud and often swearing. However, he admitted on cross-examination that several employees swore around the plant, including him. Mr. Rice testified that he recalled a meeting in which Claimant was present where Mr. Shropshire requested that Mr. Rice "bend over and spread his legs, because he was going to get it." Mr. Rice admitted that he never filed a complaint regarding the incident, even though he was the subject of the comment. Mr. Rice also testified about his job duties regularly changing under Mr. Shropshire's management. He testified that he would be assigned a given task, only to show up and find someone else completing the same task. He stated that he did not know what job he would be performing from day to day.

Mr. Rice testified concerning Mr. Shropshire's treatment of the Claimant. He recalled one incident in a bindery meeting where Mr. Shropshire referred to an idea offered by Claimant as "stupid." Mr. Rice testified that this made the Claimant feel stupid.

Mr. Rice then testified to the impact Mr. Shropshire had on Mr. Rice's personal wellbeing. He stated that he often did not want to go to work and would go home with tears in his eyes.

Mr. Rice testified that his primary issue with Mr. Shropshire related to the quality of product advocated by Mr. Shropshire. He stated that Mr. Shropshire advocated poor materials, and this adversely affected the work attitude of Mr. Rice and other employees. He testified that newer employees were not affected by this change, only the older employees. On cross examination, Mr. Rice admitted that older employees were more affected by Mr. Shropshire, because it was like "watching a child go downhill."

Mr. Rice admitted to working with Claimant for 30 years, wherein he and Claimant forged a friendship. He stated their friendship extended beyond the workplace.

Mr. Rice admitted on cross examination that he received praise from Mr. Shropshire on several occasions. He further revealed that he also received the highest evaluation from Mr. Shropshire for his work at Von Hoffman.

Mr. Rice also acknowledged that he had changed positions/titles throughout his tenure at Von Hoffman, and this was not a unique aspect of Mr. Shropshire's management style. He further explained that despite all of his issues with Mr. Shropshire, he never filed a complaint and was not aware of other employees who did file complaints.

Mr. Rice testified on direct examination that the Claimant was upbeat and energetic from 2000 to 2003.

Dr. Dale Halfaker, Ph.D., testified on behalf of Claimant. Dr. Halfaker is a psychologist who practices in the Springfield, Missouri, area. Dr. Halfaker testified that he diagnosed the Claimant with an adjustment disorder. He did not believe he had PTSD as he did not have a life threatening traumatic event. Dr. Halfaker also opined that the Claimant had a 30\% permanent partial psychological disability at this time. He apportioned 5\% of the disability to be as a result of the company changing corporate processes and going from a family owned business to a corporately run business. He then indicated that approximately 8 % of the total 30 % would be related to the Claimant's coronary artery disease and resulting surgeries. The final 17 % was related to dealing with Garrett Shropshire.

On cross examination, Dr. Halfaker admitted that he does not know whether any of the scenarios presented to him by the Claimant were actually true.

He admitted that he takes the Claimant at face value and accepts as true all things listed. He also testified to several of the statements Claimant made that caused his psychological condition. These include Mr. Shropshire finishing up a project that Claimant had started on, as well as Claimant being replaced by another supervisor to do a certain job task. Dr. Halfaker did indicate that, taken in isolation, many of these types of activities that the Claimant felt were threatening or harassing would not rise to the level of anything atypical.

Dr. Halfaker testified on cross-examination that a large majority of these scenarios are not vulgar, insensitive, or demeaning in any way. Dr. Halfaker indicated that it was the collective amount of harassment that occurred that caused Claimant's injury. Dr. Halfaker admitted it was not the harassment that may have been the problem, but rather the Claimant's perception of the actions as harassment.

Dr. Halfaker further testified that there is a high association of depression and anxiety with coronary artery disease. He stated they usually come about together.

Dr. Halfaker also admitted that an individual such as Claimant, who has a significant predisposition to depression and anxiety, could have more difficulty in dealing with stressful situations and a stressful situation is more likely to cause a more serious reaction than would have been without the pre-disposition. The Claimant could react in a highly defensive way to a stimulus that most people would be able to adapt to. Dr. Halfaker admitted that he never found the Claimant to be permanently and totally disabled. He admitted that Claimant can work in a full duty capacity from a psychological point of view, but Claimant may have difficulty working due to his bilateral knee condition. Dr. Halfaker admitted that he did not take the Claimant off work as a result of his evaluation of the Claimant.

Dr. Haight and Dr. Kennett testified by deposition. Their testimony is referred to throughout this discussion of testimony.

The depositions of Mike Bax and Mike McKenna were admitted as Joint Exhibits 1 and 2 .

Mike Bax testified that he has been employed by Employer since 1994 and that in 2004 he was a shift supervisor under Claimant. Mr. Bax testified that he was on active military duty until March 2004 when he returned to Employer and met Mr. Shropshire who was the bindery manager. Mr. Bax testified that he saw Mr. Shropshire about one time a week during supervisors' meetings which were held weekly on a regular basis.

Mr. Bax testified that Mr. Shropshire's management style was that he was a "numbers guy," and that he did not "beat around the bush" in his communication style. Mr. Bax also testified that Mr. Shropshire could be very vocal in managers' meetings and would use curse

words from time to time. Mr. Bax further testified that he has had other managers who had similar management styles to Mr. Shropshire. Mr. Bax testified that when Mr. Shropshire would become vocal and use curse words in a meeting, it was directed at the group and not any individual employee or manager. Mr. Bax also testified that he did not observe Mr. Shropshire being verbally abusive to employees, only towards the managers as a group.

Mr. Bax testified that previous managers had also used abusive language and aggressive management styles with other groups of managers at the Employer. Mr. Bax stated that a former president of the Employer would lose his temper with an employee and fire that person on one day, and the next day he would call the employee and hire him back and ask him to come back to work. Mr. Bax further testified that he never experienced verbal abusiveness from the former president of the Employer.

Mr. Bax testified that Mr. Shropshire's actions and words were not considered by him to be extraordinary or unusual in comparison to other managers and people in management positions in his own work experience.

On cross-examination, Mr. Bax denied hearing about incidents involving Mr. Shropshire and other employees. He admitted that he usually worked the night shift, and the only contact he would have with Mr. Shropshire would be the meetings which would last fifteen minutes to half-an-hour.

Mr. Bax admitted that he considered Claimant a fairly laid-back person, as were all the supervisors prior to the company being sold by the Von Hoffman family. Mr. Bax denied that he had any problem working with Claimant, and he further denied knowing anything about the conflict that Claimant was having with Mr. Shropshire during 2004.

Mike McKenna testified that he began working for Employer in 2003 at a time when the company was transitioning operational ownership to Vizant Corp. He testified that he has more than 30 years experience working in the printing business. Mr. McKenna testified that in 2004 the Employer was going through a lot of changes in attempting to retool the plant, streamline the manufacturing process, and increase productivity.

Mr. McKenna testified that in terms of management style, Mr. Shropshire was not the worst that he had worked with and that Mr. Shropshire's style was somewhere in the middle between calm and extreme behaviors. He further testified that Mr. Shropshire was very direct and to the point and that he used profanity from time to time in supervisors' meetings. Mr. McKenna stated when Mr. Shropshire raised his voice or cursed in meetings, Mr. McKenna never felt demeaned or personally attacked by Mr. Shropshire.

Mr. McKenna testified that prior to 2003 the atmosphere at Employer was more laid back and that beginning with the Vizant Corp., there were higher expectations for more productivity, more structure to the manufacturing process and more employee expectations. Mr. McKenna further testified that it was not uncommon for shift supervisors to work different shifts from time to time and that he moved around shifts some, but he primarily worked the night shifts. Mr. McKenna testified that in his opinion, based on 30 years experience in the printing business, that there was not anything unusual or extraordinary in Mr. Shropshire's behavior or management style.

On cross-examination Mr. McKenna denied observing or knowing about several specific conduct situations involving Mr. Shropshire. Mr. McKenna testified that he would be upset if he was assigned a task to purchase equipment for a job and then have a superior go out and purchase the equipment himself.

Preston Hunter, a co-supervisor of Claimant, testified on behalf of the Employer. He testified that he had been with the Employer since 2002 as a shift manager and bindery manager. He worked with the Claimant from the time Claimant returned to work in 2003 until Claimant ceased working for the Employer in November 2004. Mr. Hunter was the interim manager immediately prior to Mr. Shropshire taking the position in 2004. Mr. Hunter testified that he has spent 45 years in the printing business and worked for several managers and that each has their own style.

Mr. Hunter testified that he has experienced positive changes in the company since 2002. He testified regarding the Claimant's Exhibit X, Mr. Hunter's evaluation of the Claimant. He explained that he was seeking more improvement from the Claimant, because his performance was no better than average. He also stated that he felt the Claimant was very reluctant to accept the changes happening in the company.

Mr. Hunter testified concerning his experiences with Mr. Shropshire and his management style. He testified that Mr. Shropshire would praise employees for a job well done, either in person or via email. Mr. Shropshire also treated everyone the same, and was no more vocal than other managers he had worked under. He also stated that Mr. Shropshire was very concerned with the company's profitability.

Mr. Hunter testified that Mr. Shropshire's style of high expectations was consistent with that of other managers he had worked under. Mr. Hunter testified that Mr. Shropshire was referred to as a "lunatic" in the office and that the name stemmed from Mr. Shropshire speaking with his hands aggressively and simultaneously running his hands through his hair.

Mr. Hunter also testified regarding changes made with shifts and duties under Mr. Shropshire's management. He testified that he did not recall duties changing from day to day;

**Employee:** James E. Hoerschgen

**Injury No.:** 04-144251

However, it is not uncommon as a shift manager to have different, unexpected tasks on a daily basis assigned by the manager. He further testified that it is common for shifts to be regularly rotated. He also testified that it was common for different materials to be used or tested at the bindery, because it was the only way to test their utility. These changes were made on a trial and error basis.

Mr. Hunter recounted an instance where he was reprimanded by Mr. Shropshire. He testified that Mr. Shropshire "chewed him out," but it was no different than any other time he had been reprimanded by a superior. He further testified that the Claimant was treated no differently than any other employee by Mr. Shropshire.

On cross examination Mr. Hunter admitted that it would not be unusual to have different tasks from day to day or be given a different shift. He testified that varying shifts and responsibilities were consistent with his experience at a printing press manufacturer. He further admitted that Mr. Shropshire's management style was no different than the array of different managers he had worked for in the past.

Heather Sneller testified on behalf of the Employer. She testified regarding general complaints made by employees during Mr. Shropshire's time as manager, as well as the complaint made by the Claimant.

Ms. Sneller testified that complaints from employees during Mr. Shropshire's management at Von Hoffman centered on the company's "action plan." She stated that this involved new hiring policies and how employees were assigned to shifts.

Ms. Sneller testified that in 2004 the Claimant approached her and made a complaint about witnessing Mr. Shropshire act inappropriately. She testified that the Claimant told her about the incident described by Mr. Rice in his testimony, wherein Mr. Rice was told to "grab

the table and spread his legs." Ms. Sneller testified that she investigated the complaint that day and took the matter very seriously.

Ms. Sneller testified that no other employees made a formal complaint regarding the incident between Mr. Shropshire and Dan Rice nor were any other formal complaints lodged against Mr. Shropshire related to other claims of inappropriate behavior.

Dr. Keith Mankowitz testified on behalf of the Employer by deposition. Dr. Mankowitz testified that he is an Associate Professor of Cardiology at Washington University Medical Center. A portion of his practice is teaching and a portion is taking care of patients in the Cardiac Clinic at Washington University Medical Center. He has been a cardiologist for approximately 17 years. He has been working at Washington University Medical Center the last 12 years.

Dr. Mankowitz explained the sequence of cardiac injuries that the Claimant had. He first pointed out that the Claimant had chest pains dating back to when he was in his 20s. He had had several stress tests over the years due to his chest pain. These were all normal. However, he pointed out that many of Claimant's stress tests that were done, even after he was diagnosed with his cardiac problems, were normal. He explained that certain patients simply do not show vascular blockage based on the stress testing. He did indicate that it was clear Claimant was having problems with his heart even when all of the stress tests were normal, as cardiac catheters were completed which did show blockages in the heart.

Dr. Mankowitz opined that the Claimant's cardiac condition throughout his life was caused by his high cholesterol, LDL cholesterol, triglycerides, and his lack of exercise. He explained further that the medications used to control the cholesterol could not be used by the Claimant as he did have numerous reactions to same. Therefore, there was no way to keep these elevated cholesterol levels down. Dr. Mankowitz also opined that he did not believe that the

Claimant's job duties or exposure to the supervisor were substantial factors in the development of his heart condition. He explained that the Claimant already had ongoing heart issues from his early twenties with the chest pain. Despite there being no positive stress test, he did feel that the Claimant was having these problems all along. He also stated that the fact that the Claimant actually had the blockages two years before his exposure to this supervisor further supports his position.

Dr. Mankowitz admitted on cross-examination that stress had very little to do with Claimant's heart condition. He did admit that stress can cause an increase in blood pressure which does have something to do with the heart. However, since the cholesterol and LDL numbers were so high, it was clear those would be the substantial factors in the development of his condition.

Dr. Patrick Caffrey, Ph.D., testified on behalf of the Employer by deposition. Dr. Caffrey is a psychologist and works in vocational rehabilitation. Dr. Caffrey has worked in professional practice as both a vocational expert and psychologist since August of 1992. He does both neuropsychological and psychological evaluations. He also does vocational evaluations. He also works as a clinical psychologist with persons who have depression, anxiety, marriage and family issues, as well as, career counseling for life-altering disabilities. He also works as a vendor for the State of Missouri Division of Rehabilitation.

Dr. Caffrey testified that with regard to the Claimant's medical history and records he reviewed, he did note that the Claimant had been treated for depression and anxiety in 2002 up through 2005. He also indicates that the Claimant was treated for depression in 1966 after his divorce as well. He stated that this history helped form the base line for depression which he found in his diagnosis. Dr. Caffrey also felt it was significant that the Claimant had a history of

coronary artery disease. He testified that physical findings such as his high blood pressure, right knee meniscus tear, reflux, sleep apnea, elevated cholesterol, and chronic bilateral knee pain would all be considered psycho-social stressors. Dr. Caffrey also stated that the Claimant's hearing loss and tinnitus would be a psycho-social stressor. He explained that it would be a constant reminder that Claimant is not well and has ongoing pain and problems.

Dr. Caffrey's report also discusses the Claimant having an episode of anxiety when his father became very ill and was placed in a nursing home. He tended to worry about his father excessively. He explains that loud noises and crowds bother the Claimant as well.

Dr. Caffrey testified concerning his findings with regard to Claimant's educational and vocational history. The majority of Claimant's work life has been spent at Von Hoffman/RR Donnelly. He has worked there for 40 years beginning in September of 1965.

Dr. Caffrey also took a social history from the Claimant. He testified that Claimant appeared to have a good home life. However, he does have a mother that has Alzheimer's disease. Dr. Caffrey pointed out that the Claimant was independent for both basic activities of daily living such as dressing, grooming and bathing, as well as advanced activities such as balancing the check book. The Claimant also rides his John Deere riding mower and gardens.

Dr. Caffrey pointed out that there were inconsistent findings in many of his tests. However, there were also findings that the Claimant was giving a good effort in other tests, as well as a valid profile on the MMPI. Dr. Caffrey pointed out that although he took a test on the Claimant's scaled anxiety and depression, it was not consistent with other findings in the exam. The Claimant had a normal IQ but did have inconsistencies within the testing. The Claimant also had evidence of a good memory but had very high memory with auditory learning and a low

memory with visual learning. The Claimant also had a sixth grade reading level and a seventh grade spelling level but a high school arithmetic level.

Dr. Caffrey pointed out that the results of the MMPI showed the Claimant to have a personality in which he manages stress poorly by converting stress into physical symptoms. He also has deficiency in skills for managing stress. The Claimant's profile was one for being very anxious, tense, and agitated. These individuals tend to worry a great deal, even over small problems, and they are fearful and apprehensive. They tend to be high strung and jumpy, and they report difficulties in concentrating, and they often receive anxiety disorder diagnoses. The profile from the MMPI was one of an individual that distorted the importance of problems and overreacted to stressful situations. They also felt depressed and guilty about falling short of goals. They typically feel insecure and inferior and lack self-confidence. These people tend to be self- critical, self-conscious and self-degrading and are plagued by self-doubt. These individuals also experience obsessive thinking and ruminations.

Dr. Caffrey explained that he understood the Claimant was having difficulty beginning in the year 2000 or 2001 when there was a change of management at Von Hoffman Press. He stated that co-workers were laid off and other workers were offered early retirement. He stated that many of his co-workers developed stress related problems, such as heart disease. He explains that these health problems from stress prevented him from working. The Claimant stated that the new management was a threat to his job security, in particular, his new boss. He claimed that his boss engaged in "vulgar" talk. He explained that his boss was one time overheard telling a coworker to "spread his legs and go get the vaseline." However, the Claimant does not give in what context this was reported. The Claimant had difficulty with both the harsh talk and the frequent profanity. He stated it was difficult to go out and manage people when he is spoken to harshly by

his manager. The Claimant admitted that he got too stressed out and tended to hold onto his emotions. Ultimately, he went to Dr. Caffrey who told him to report these occurrences to the HR manager. Dr. Caffrey then put Mr. Hoerschgen on leave, secondary to hypertension and sleep deprivation. The Claimant also indicated that he would be provided an assignment and a deadline, but when he failed to meet the deadline, he experienced confrontation with the supervisor and criticism. He did not respond well to criticism.

Dr. Caffrey diagnosed the Claimant with general anxiety disorder and adjustment disorder with depressed mood. He explained that these were chronic conditions and that they pre-existed the change in management at RR Donnelly. However, he stated that these conditions may have been aggravated by the work. He specifically pointed out that the Claimant appeared to be agitated not only by the supervisor's statements but by the simple change in structure of the business. It appears that Von Hoffman was run as a family company, and everybody was very congenial. However, when the change occurred to RR Donnelly, it appeared to be a much more tightly run company and certain standards were demanded. Also, based on my evaluation, it appeared that this Claimant began to have more of his problems when he returned from an extended break and many of his co-managers and co-workers were no longer working for the company. He appeared to have a hard time dealing with the changes at that time. Dr. Caffrey did explain that the problems with the boss or manager also contributed to an aggravation of these conditions.

Dr. Caffrey opined that the Claimant is employable in the open labor market. He recommended that he attempt to return to his job at RR Donnelly as he was able to make \$84,000 a year in that position. However, if he could not do that job, Dr. Caffrey did outline several other job duties which he includes in his report which the Claimant is able to perform. However, these

pay significantly less than what the Claimant was earning. However, there are significant other jobs available within the Claimant's abilities and intellect.

Dr. Caffrey also opined that the Claimant was not exposed to any type of unusual or extraordinary conditions when the management of the company changed and the problems with his boss began.

Dr. Caffrey testified that his addendum report was simply in response to questions raised on the effect of the Claimant's hormone condition and bypass surgery. Dr. Caffrey did explain that he felt the bypass surgery and coronary artery disease were the most significant factors for the stress related conditions. However, he also felt that the hormonal imbalance would be a negative impacting factor as well. The final report from Dr. Caffrey is dated August 6, 2007.

Todd Bone testified on behalf of the Employer by deposition. Mr. Bone testified that he is currently the bindery manager of Employer and that he began working for Employer in 2005. He testified that he worked under Mr. Shropshire while Mr. Bone was shipping supervisor and press room supervisor. Mr. Bone further testified that Mr. Shropshire had a very direct and open management style and that Mr. Shropshire openly stated his expectations to the supervisors as to the performance he expected from the supervisors and the plant production.

Mr. Bone testified that he never observed Mr. Shropshire to have conducted himself toward an individual employee that was inappropriate and that if he did criticize an employee, Mr. Shropshire would usually pull that employee off to the side and privately talk to him about the expectations Mr. Shropshire had with regard to that employee.

On cross-examination Mr. Bone admitted that if there was inappropriate behavior or management style by a manager toward Mr. Bone individually that Mr. Bone considered

offensive, Mr. Bone would tell the manager directly that the conduct was considered inappropriate.

Whether the accident/occupational disease arose out of the course of and scope of employment?

Whether the accident/occupational disease caused the injuries and disabilities for which benefits are not being claimed?

Claimant is alleging that he suffered an accident on November 16, 2004. Accident is defined in Section 287.120.2 in part as: "An unexpected or unforeseen identifiable event or series of events happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. An injury is compensable if it is clearly work related." Section 120.2 further states: "An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor."

Section 287.020.3.1 defines injury in part as: "An injury which has arisen out of and in the course of employment." An injury arises out of and in the course of employment if, among other factors, "it is reasonably apparent upon consideration of all the circumstances, that the employment is a substantial factor in causing the injury." RSMo. 287.020.3(2)(a) Sections 287.120.8 and 287.120.9 set out additional requirements for mental stress injuries as follows:

1. Mental injury resulting from work related stress does not arise out of and in the course of employment unless it is demonstrated that the stress is work related and was extraordinary and unusual. The amount of work stress shall be measured by objective standards and actual events.

1. A mental injury is not considered to arise out of and in the course of employment if it resulted from any disciplinary action, work evaluation, job transfer, layoff, demotion, termination or any similar action taken in good faith by the employer. RSMo. 287.120

Claimant has the burden of proof to show that the work stress was a "substantial factor" in causing a mental stress injury, as well as, that his stress was work related, was extraordinary and unusual, and was not the result of a good faith action taken by the employer. Williams v. DePaul Health Center, 996 S.W.2d 619 (Mo. App. E.D. 1999), Duncan v. SpringfieldR-12 School District, 897 S.W.2d 108 (Mo. App. S.D. 1995).

A party claiming workers' compensation benefits bears the burden of proving all material elements of his claim. Meilves v. Morris, 422 S.W.2d 335, 339 (Mo. 1968). It is Claimant's burden to prove a causal connection between his mental stress injury and an extraordinary and unusual stress, measured by objective standards and actual events.

Claimant testified that Mr. Shropshire's conduct was the cause of his current depressive condition. In particular, he stated that Mr. Shropshire managed the bindery in a "different" manner, that he was loud and vulgar. He testified that these work conditions made it difficult for him to sleep and caused him to have nightmares and otherwise made him very anxious and depressed. He testified that in 2002 and 2003 he did not have a serious problem with depression.

Claimant admitted to having difficulty with sleeping and with nightmares in 2002, prior to working with Mr. Shropshire. Claimant also admitted to claiming depression as one of the reasons for his disability in his pre-2004 Social Security Disability Application. He testified concerning his heart condition treatment in 2002 and the resulting depression there from. He also testified that his mother was diagnosed with dementia during the same general timeframe. Claimant's depressive condition, prior to 2004, was supported by his own testimony and the testimony of Drs. Halfaker and Caffrey.

Dr. Halfaker testified that there is a high association of anxiety and depression with coronary artery disease. He further admitted that an individual, such as Claimant, with a preexisting depressive condition is more sensitive to otherwise ordinary situations or remarks. He admitted Claimant could react much more defensively to a stimulus than other people would.

Dr. Caffrey noted that Claimant had been treated for anxiety and depression from 2002 through 2005. He also noted that Claimant had been treated for depression in 1966. Dr. Caffrey testified as to the correlation between coronary heart disease and depression, as well as Claimant's other physical ailments of high blood pressure, meniscus tear, reflux, sleep apnea, elevated cholesterol, and chronic bilateral knee problems. Dr. Caffrey further discussed Claimant's episode of anxiety when Claimant's father was ill.

Dr. Caffrey opined that Claimant had a general anxiety disorder and adjustment disorder with depressed mood. Dr. Caffrey explained that these were chronic conditions that pre-dated the change in management at Employer. He testified that it is possible that not only the change in management, but also the general change in the structure of the business aggravated Claimant's condition, as Claimant struggled with change throughout his life. Dr. Caffrey opined that Claimant began to have some of his stress problems with the corporate culture of Employer when he returned from his extended break to find many co-employees were no longer working for Employer.

I find that Claimant's work under Mr. Shropshire was, at the most, a precipitating or triggering factor, but not a substantial factor in Claimant's depressive condition.

In Williams v. DePaul Health Center, supra, the court denied the claimant benefits for her mental stress claim, because although she testified as to the amount of stress she believed her employment caused, she did not present evidence that her stress was greater than stress routinely

encountered by other similar employees at the same employer. In Sherman v. First Financial Planners, Inc., 41 S.W.3d 633 (Mo. App. E.D. 2001), the court denied benefits for a claim of mental stress where the claimant failed to prove that her stress was unusual when compared with that normally experienced by similarly situated employees either of her company or of different employers.

Preston Hunter testified that varying and changing duties is normal for a shift manager at a bindery. It was consistent with his 37 years of experience and not behavior that was unique to Mr. Shropshire's management style. He also testified that it was common for shifts to be regularly rotated. Mr. McKenna testified that he was aware Claimant worked first shift, but that in 2004 it was typical for shifts to be rotated. He stated that he changed shifts often in this time frame and that it was done to give shift managers a better understanding of what was happening when they were not there. This further evidences Claimant's failure to prove that the stress he encountered was extraordinary and unusual when compared to similarly situated employees at this Employer.

Mr. Hunter testified that Mr. Shropshire treated "everyone the same" and was no more vocal than other managers he worked under. Mr. Hunter testified that Mr. Shropshire's management style of high expectations was consistent with the style of many of his previous managers. This sentiment was confirmed in the deposition of Todd Bone, wherein he stated that Mr. Shropshire's management style was such that he had high expectations for his supervisors, but that this was not unusual.

Mr. Bax testified in his deposition that there have been bindery managers like Mr. Shropshire before he was there and since he has left. He further noted that he never witnessed any conflict between Mr. Shropshire and Claimant.

Dr. Caffrey testified concerning Claimant's difficulty with handling change throughout his life as part of his preexisting anxiety disorder. He testified that many of the problems Claimant experienced at Employer were related to the general change in the company.

Dr. Caffrey testified that Claimant experienced many of his problems when he returned from his extended break to discover that many of his co-employees no longer worked for Employer.

Claimant has failed to prove that work stress under Mr. Shropshire was extraordinary and unusual as compared to the work stress encountered by similarly situated employees at this Employer or at different employers. As in Williams, referenced above, Claimant has offered testimony of the stress he believes he encountered at work, but has failed to show that the stress was unusual or extraordinary to that encountered by similarly situated employees at this Employer or a different employer in similar circumstances. I find there is substantial and competent evidence that the incidents which Claimant alleges caused him extraordinary and unusual stress, including, but not limited to, corporate culture changes occurring in the workplace prior to and during 2004, conduct of supervisors during managers' meetings, and language and attitude of any one supervisor is not sufficient to constitute extraordinary and unusual stress when measured by objective standards and actual events. The testimony of several witnesses established that treatment was standard and evenly applied within the Employer during the period in which Claimant complains, even if such conduct may have been considered by some to be rude or obnoxious.

After a review of all the testimony adduced at the hearing, both oral and written, and based on the record as a whole, I find that Claimant has failed to sustain his burden of proof to establish that the stress encountered by Claimant was extraordinary and unusual, measured by objective standards and actual events. I further find that Claimant's claim that his being assigned

to work night shifts after 39 years of employment was reasonable action taken by the Employer in good faith.

I find that Claimant has failed to prove that his stress was extraordinary and unusual when measured by objective standards and actual events, compared to similarly situated employees for Employer or a different employer in similar circumstances. Accordingly, Claimant's mental injury does not arise out of and in the course of his employment.

I find that Claimant's pre-existing mental stress disorder along with Claimant's diagnosed inability to cope with change and stressors of life in a way similar to others who do not have a pre-disposition to depressive disorders does not constitute or establish a work related injury according to the evidence presented at the hearing.

I find these issues in favor of Employer and therefore, order that Claimant's claim for compensation be denied.

Whether the Claimant has sustained injuries that will require future medical care in order to cure and relieve the Claimant of the effects of the injuries?

Whether temporary total benefits are owed to the Claimant?

Based on the findings and rulings set out above denying benefits to the Claimant on Claimant's Claim for Compensation, I find these issues in favor of Employer.

It is ordered that Claimant shall not be entitled to future medical treatment provided by the Employer, nor temporary total disability benefits, nor permanent disability benefits.

The liability of the Second Injury Fund for permanent total disability/enhanced permanent partial disability?

Employee: James E. Hoerschgen

Injury No. 04-144251

Based on the findings and rulings set out above and based on the denial of Claimant's

Claim for Compensation, I find that the Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, has no liability for any permanent disability in this claim.

I find this issue in favor of the Second Injury Fund.

Made by: $\qquad$

David L. Zerrer

Administrative Law Judge

Division of Workers' Compensation