JAMES MIDDLETON, deceased Employee, by ARLENE MIDDLETON, Petitioner/Appellant, v. NORTHWEST AIRLINES and KEMPER NAT=L INS. COS., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 31, 2000

                       

HEADNOTES

 

CAUSATION - PSYCHOLOGICAL INJURY; CAUSATION - SUICIDE.  Substantial evidence supports the compensation judge=s determination that the petitioner failed to establish the deceased employee was subjected to stress in his employment beyond the ordinary day-to-day stress to which all employees are exposed.  Egeland v. City of Minneapolis, 344 N.W.2d 597, 36 W.C.D. 465 (Minn. 1984).  The compensation judge did not improperly apply a Aperceived stress@ test, rejected by the supreme court in Egeland, in making her decision.

 

Affirmed.

 

Determined by: Johnson, J., Hefte, J., retired, and Olsen, J., retired

Compensation Judge: Joan G. Hallock

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

This case is before the court on remand from the Minnesota Supreme Court.  Middleton v. Northwest Airlines, 600 N.W.2d 707, 59 W.C.D. 429 (Minn. 1999).  The sole issue on appeal is whether the compensation judge properly found the petitioner failed to establish legal causation sufficient to support her claim for workers= compensation dependency benefits based on the employee=s stress-induced suicide.  We affirm.

 

BACKGROUND

 

The facts in this case are set forth in some detail in the prior decisions of this court and of the supreme court.  Briefly, the employee, James Middleton, worked as an aircraft mechanic for the employer, Northwest Airlines, for 36 years.  During his employment with Northwest, he worked in various shops and departments, including aircraft structural repair and flight control services.  ( T. Vol 1 at 118; Vol. 2 at 285.)  In late 1990, the employee began working in the sheetmetal shop, manufacturing and repairing tubing.  Mechanics in the tubing department fabricated rigid metal tubing used as conduit for aircraft hydraulic, pneumatic, air, water, electrical and fuel systems.  The work required attention to detail and precision.

 

Beginning in 1993, a number of changes took place in the tubing department.  Sometime prior to June 1993, Northwest management decided to discontinue in-shop inspection of routine tubing. The change was controversial and was opposed by the mechanics in the tubing department who regarded the change in procedure as a safety issue.  A co-employee, Michael Carlson, transferred out of tubing in the summer of 1993.  Carlson had been in tubing about a year and a half longer than the employee.  Paul Houska, the senior employee in the department with more than twenty years of experience in tubing, retired in October or November 1993.  The day shift in tubing was reduced to two following Houska=s retirement.  The new mechanic, Dan Martin, had no prior experience in tubing and did not, at that time, have his airframe and power-plant (A&P) license.  The employee, who did mostly stock work orders while Carlson and Houska were in the department, now did mostly live aircraft and check hanger work.  Beginning sometime in the fall of 1993, the number of backlog work orders for stock tubing increased substantially as the result of a one-time noise-reduction retrofit of DC-9 aircraft.

 

The employee apparently took a two week vacation in early November 1993.  He had been having problems with his left knee and scheduled surgery when he returned.  (Pet. Ex. B: 10/29/93.)  He was off work during January and February 1994 as a result of his knee surgery.  He returned to work for one week at the end of February, and then took a scheduled vacation during the first week in March 1994.

 

Beginning in early April 1994, the employee started telling family and friends that he didn=t know how to do the tubing job, was worried about his job, and didn=t know what he was going to do.  (T. Vol. I. at 22-23.)  The employee sought treatment from his family physician, Dr. Decker, on April 21, 1994, complaining of anxiety and nervousness, chest tightness and loss of appetite.  The doctor diagnosed anxiety and depression and prescribed medications.  When the employee did not improve, Dr. Decker referred him to Dr. Ferneyhough, a psychologist.  The employee first saw Dr. Ferneyhough on May 4, 1994.  He reported stress related to recent changes at work, and Dr. Ferneyhough diagnosed an adjustment disorder with depression and anxiety.  In a subsequent session, the employee again vented his concerns about working in the tubing department, although he was unable to specifically identify why he felt so concerned about being unable to do the job.  (Pet. Ex. A, 5/4/94, 5/6/94.)

 

In early May 1994, the employee told Michael Carlson he wanted to get out of the tubing department, expressing concerns about his knees and the noise level in the shop.  Carlson talked to Tom Viertel, then lead mechanic in the oven and refrigeration shop.  Viertel approached the employee about making a temporary move to ovens.  The employee was interested, and a 45-day assignment was approved that same day by Segundo Velasquez, the manager of the sheetmetal shop.  On May 13, 1994, the employee reported to Dr. Ferneyhough the work in ovens was much less stressful for him.  The employee hoped the transfer would become permanent and believed his emotional problems would discontinue with the job change.

 

Despite the change, the employee showed little improvement, reporting considerable ongoing anxiety, nervousness, agitation and worry.  Dr. Ferneyhough believed the employee=s continuing symptoms were inconsistent with his original diagnosis of a situational depression and recommended further investigation.  (Pet. Ex. D: 5/26/94; Pet. Ex. A: 5/27/94, 6/2/94.)  On June 17, 1994, the employee began a week-long vacation.  Just a few days before his vacation, the employee told a long-time co-employee, David Pluff, that he was having mental problems and expressed concerns about returning to the tubing department.  Pluff attempted to reassure the employee, stating he would help him get a different job when he came back from vacation.

 

The vacation did not go well, and on June 21, 1994, the employee returned to see Dr. Decker after confiding to his wife that he had contemplated suicide.  Dr. Decker noted an A[a]lmost psychotic fear of work,@ diagnosed severe depression, and gave the employee a work slip taking him off work indefinitely Afor medical reasons.@  The work slip was mailed to Velasquez who placed the employee on a medical leave of absence.  Psychological testing performed by Dr. Ferneyhough on June 22, 1994, showed increased confusion, difficulties in logic, and deepening depression.  The employee=s behavior was becoming increasingly irrational and inappropriate, including his belief that Northwest was monitoring him or was about to have him arrested.  On the morning of June 30, 1994, the employee took a knife from the kitchen, went downstairs to the basement, and committed suicide.

 

The employee=s widow filed a claim petition seeking dependency benefits and payment of medical and funeral expenses, contending the employee=s suicide was the result of job-related stress.  A three-day hearing was held before a compensation judge at the Office of Administrative Hearings.  The parties stipulated the employee suffered from a major depressive disorder, the major depressive disorder led to the employee=s suicide, and the major depressive disorder created a mental derangement which deprived the employee of the ability to think rationally.  (T. Vol. I at 7.)  Following the hearing, the compensation judge found that job stress, as perceived by the employee, caused the employee=s major depressive disorder.  (Finding 39.)  The judge denied benefits, however, concluding the employee Awas not subjected to stress at work beyond the day to day stress to which all employees are subjected.@  (Finding 38.)  The sole issue on remand is the employee=s appeal from the compensation judge=s findings on legal causation.

 

STANDARD OF REVIEW

 

On appeal, the Workers= Compensation Court of Appeals (WCCA) must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, subd. 1 (1992).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be affirmed.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60, 37 W.C.D. 235, 240 (Minn. 1984).  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

Test for Determining Legal Causation

 

In remanding this case the supreme court stated,

 

Given the complexity of the issues involved in determining whether Middleton=s suicide was legally caused by his employment, a remand to the WCCA is appropriate.  (Citations omitted.)  Remand will allow the WCCA, which has significant knowledge and expertise in assessing causation issues, to consider an appropriate framework for determining legal causation in instances of stress-induced employee suicide. 

 

Middleton at 711, 59 W.C.D. at 436.  The petitioner contends that by this language the supreme court directed the WCCA to go beyond mere consideration of the compensation judge=s findings regarding legal causation and to re-examine the Abeyond the ordinary day-to-day stress@ standard for legal causation.  We disagree.

 

Recognition that emotional or mental stress may play a role in causing bodily injury or harm is a relatively recent medical-legal phenomenon.  See, e.g., Larson, Mental and Nervous Injury in Workmen=s Compensation, 23 Vand.L. Rev. 1243-44.  In Minnesota, the first supreme court cases addressing job-related stress claims appeared in 1979.  In Klapperich v. Agape Halfway House, Inc., 281 N.W.2d 675, 31 W.C.D. 641 (Minn. 1979), the supreme court adopted a two-part test for causation in mental stress cases: (1) Does the evidence support a finding that the employee=s mental stress and strain were medically related to the injury? and (2) Is the causal connection sufficient as a matter of law to recover workers= compensation benefits?  The court upheld the compensation judge=s denial of benefits, concluding the evidence did not support a finding that the employee was exposed to Aunusual or significant@ job-related mental stress.  Id. at 678, 31 W.C.D. at 645.  See also Hough v. Drevdahl & Son Co., Inc., 281 N.W.2d 690, 31 W.C.D. 605 (Minn. 1979).  In Aker v. State, Dep=t of Natural Resources, 282 N.W.2d 533, 32 W.C.D. 50 (Minn. 1979), the supreme court recognized that Aextreme@ emotional or mental stress from a single precipitating incident may be suf­ficient to establish causation in a stress-related injury case (fatal heart attack caused by extreme stress related to removing badly decomposed bodies from a remote BWCA campsite).  

 

In Lockwood v. Independent School District No. 877, 312 N.W.2d 924, 926, 34 W.C.D. 305, 309 (Minn. 1981), the supreme court (although holding that mental injury caused by mental stress is not compensable) acknowledged the majority of courts that allow recovery for work-related mental stress require Aproof that the employee was exposed in his employment to stresses beyond the ordinary day-to-day stress to which all employees are exposed,@ citing Swiss Colony, Inc. v. Dep=t of Indus., Labor & Human Relations, 72 Wis.2d 46, 240 N.W.2d, 128 (1976)(cited with approval  in Larson, see 2 A. Larson and L.K. Larson, Workers' Compensation Law § 56.04[2] (1999)) and Townsend v. Maine Bureau of Public Safety, 404 A2d 1014 (Me. 1979).  The dissenting justice specifically advocated adoption of the Wisconsin rule.  Id. at 927, 34 W.C.D. 313.  A few years later, in Egeland v. City of Minneapolis, 344 N.W.2d 597, 36 W.C.D. 465 (Minn. 1984), the supreme court specifically held that A[t]o prove legal causation@ in cases involving Astress that has accumulated over a long period of time,@ the employee must show evidence that he or she was sub­jected to stress Abeyond the ordinary day-to-day stress to which all employees are exposed.@ Id. at 603-04, 36 W.C.D. at 474-75.  The supreme court has applied the Abeyond the ordinary day-to-day stress@ test on numerous occasions since Egeland.  See, e.g., Courtney v. City of Orono, 424 N.W.2d 295, 40 W.C.D. 1117 (Minn. 1988); 463 N.W.2d 514, 43 W.C.D. 571 (Minn. 1990); Swanson v. City of St. Paul, 526 N.W.2d 366, 52 W.C.D. 187 (Minn. 1995).

 

In reversing and remanding this case to the WCCA, the supreme court stated:

 

[W]e perceive death by suicide to be analogous to other subsequent physical injuries. See, e.g., Aker v. State, Dep=t of Natural Resources, 282 N.W.2d 533 (Minn. 1979)(game warden=s heart attack caused by emotional stress of removing decomposed bodies from Boundary Waters Canoe Area held compensable); Egeland v. City of Minneapolis, 344 N.W.2d 597(Minn. 1984)(police officer=s ulcer aggravated by chronic depression caused by work-related emotional stress held compensable).  Compensability, of course, depends on whether the work-related stress can be proven to be both the medical and legal cause of the employee=s suicide.  Egeland, 344 N.W.2d at 603. (Emphasis added.)

 

The Abeyond the ordinary day-to-day stress@ test of Egeland is well-established.  The petitioner argues the Egeland test is a departure from the Aincreased risk test@^[1] and places a higher burden of proof on the employee.  The petitioner urges this court to reject the Egeland test in suicide cases and instead adopt an increased risk with corroboration test.  We decline to adopt a causation test for suicide cases different from that clearly expressed and applied by the supreme court in numerous stress-induced injury cases.^[2]  In any event, we do not agree the Egeland test is a different or more stringent test than the increased risk test.  The Egeland test merely restates the increased risk test for cases involving mental or emotional stress and provides a measure for gauging the level of the employee=s exposure to stress.  Members of the general public are subject to risk of injury in pursuing their personal affairs and all employees are exposed to stress at work.  The arising out of requirement of Minn. Stat. ' 176.011, subd. 16 requires proof of an increased risk or increased stress.  If the stress to which an employee was exposed was not beyond the ordinary day-to-day stress to which all employees are exposed, then that employee was not subjected to an employment hazard which increased the risk of injury beyond that of the general public.

 

APerceived Stress@

 

The petitioner argues the compensation judge=s determination is erroneous as a matter of law, asserting the judge improperly applied the concept of Aperceived stress@ rejected by the supreme court in Egeland.  One of the issues on appeal in Egeland was the majority opinion of two WCCA judges affirming the compensation judge=s denial of benefits for depression based on their conclusion that the employee suffered from Aperceived stress@ rather than Aactual stress.@  The supreme court rejected the distinction observing that it Aseems to be purely semantical.@.  Id. at 599, 602, 36 W.C.D. at 466, 473.  The court discussed at some length three prior decisions of the WCCA, Applequist v. Insurance Co. of No. Am., 33, W.C.D. 245 (W.C.C.A. 1980), Strand v. Ramsey County, 34 W.C.D. 181 (W.C.C.A. 1981) and Green v. First State Bank of White Bear Lake, 34 W.C.D. 151 (W.C.C.A. 1981), noting in determining legal causation in these cases, the WCCA attempted to distinguish between an employee=s honest perception of workplace stress and objective evidence about the workplace that did not support the employee=s perceptions.  The court observed that,

 

[W]hat seems to be the crux of the WCCA=s earlier three decisions is the idea that it is important to establish factually the existence of stress in the workplace other than by means of the disabled employee=s own testimony.  This position is consistent with the Minnesota Supreme Court=s prior holdings.  (Referencing Klapperich, Hough, and Aker, id.)

 

Egeland at 603, 36 W.C.D. at 473-74.^[3]  The supreme court concluded, however, that the facts of record in Egeland Adid not coincide with@ the facts in the earlier WCCA cases, holding the employee in Egeland had, in fact, presented sufficient objective evidence to meet the legal causation test including evidence of outward manifestations of stress and specifics about the work situation that supported a finding that the employee was subjected to stress beyond the ordinary day-to-day stress to which all employees are exposed.  Id. at 602, 604, 36 W.C.D. at 473, 475-76.

 

Here, the compensation judge concluded that Athe job stress which the employee perceived, though not rising to the legal standard for compensability, did trigger the employee=s major depressive disorder.@  The judge further concluded, however, that the petitioner failed to prove the employee was, in fact, subjected to stress at work beyond the ordinary day-to-day stress to which all employees are exposed.  (Findings 38, 39; Mem. at p. 7.)  While the specific facts relied upon by the compensation judge are less than clear,^[4] it does not appear that the compensation judge improperly applied a Aperceived stress@ test in reaching her decision.

 

Legal Causation

 

The petitioner argues that changes in the employee=s job between September 1993 and May 1994, including inadequate training; little or no assistance from supervisors; a loss of in-shop inspection raising safety concerns; a reduction in the number of day shift workers and the employee=s elevation to the most experienced mechanic on the shift; and a 1000% increase in work backlog com­pels a finding that the employee was subjected to job-related stress beyond the ordinary day-to-day stress to which all employees are exposed.  The quality and quantity of stress^[5]  to which the employee was exposed by his employment is a question of fact for the compensation judge.  As such, the compensation judge=s findings may not be disturbed unless they are manifestly contrary to the evidence or the evidence clearly requires reasonable minds to adopt a contrary conclusion.  Minn. Stat. ' 176.421, subd. 1; compare Courtney v. City of Orono, 463 N.W.2d 514, 517, 43 W.C.D. 571, 575, (W.C.C.A. 1990); Egeland at 601, 36 W.C.D. at 470.  While different inferences could be drawn from the evidence, it is not the role of an appellate court to try the facts anew.

 

                         The testimony and documentary evidence relied upon by the opposing parties regarding the job-related stress to which the employee was exposed varies significantly.  The records of Dr. Decker and Dr. Ferneyhough reflect the employee=s concerns about work, especially his fear of causing an airplane crash due to a mistake on his part in fabricating a tube.  Testimony by the employee=s wife and daughter reflect comments made by the employee indicating there no longer was inspection in the tubing department; that he didn=t know how to do the tubing job, didn=t think he was trained enough to be taking over Paul Houska=s job and didn=t have anyone to go to for assistance; that his co-worker was inexperienced and didn=t have an A&P license; and that the number of orders had Abuilt up@ while he was off work for his knee surgery.  The employee worried in particular about making a mistake, stating that if a tube broke or didn=t work correctly the plane could crash.  (T. Vol. 1 at 15-16, 22-26. 28-29, 33, 39, 55, 61 70-72.)  In late May or June, the employee began obsessing about having to return to the tubing department when his 45 day assignment to ovens ended. (T. Vol. I at 30, 36-37, 40, 42, 76-77.)

 

The testimony of co-workers and other Northwest employees is somewhat different.  By the time of his death, the employee had worked in the tubing department for three or four years.  He was trained by Paul Houska who had 20 years of experience in tubing.  Both Carlson and Martin testified they were comfortable and confident doing the tubing job within a year or so after starting work in the shop.  (T. Vol. 1 at 190, 220; T. Vol. 2 at 267.)  Velasquez, Carlson, Martin, Pluff and Viertel all regarded the employee as a highly capable mechanic who was very competent at manufacturing tubing.  There was no indication that the employee did not know how to do the tubing job.  (T. Vol. 1 at 88, 135,  214-15;  Vol. 2 at 267, 275, 277, 288, 290, 301, 319.)  Velasquez agreed the employee at times requested advice or clarification, and testified he referred the employee to Carlson, the shop engineers, or to some other knowledgeable person if he needed further assistance.  Carlson testified the employee came to him primarily for help finding manual references or with questions about tooling, because Carlson had special expertise in these areas.  Carlson explained it could take quite some time to find a manual reference, and it was more a matter of saving time than the employee not understanding the manual.  (T. Vol. 1 at 134-35, 137; Vol. 2 at 259-60, 267, 275-76, 320; see also 291.)

 

Although he viewed the inspection change as a safety issue, Carlson agreed there are redundancies and back-up systems for critical flight items like aircraft hydraulics, and that it was improbable that all redundant systems would fail.  He testified that while Ait was always in the back of my mind,@ it was not a major concern, and as far as aircraft actually crashing, AI don=t believe that was an issue.@  (T. Vol. 2 at 258, 268-71.)  Raymond Johnson, director of the aircraft support shops, made the decision to discontinue inspection of routine tubes.  He testified he had been in the airplane business for 35 years, had been involved in aircraft hydraulics for 30 years, and had yet to see a failure of a tube cause an emergency procedure, let alone a crash. A[I]t=s just not something that happens.@  (T. Vol. 2 at 408-09.)  Moreover, Anon-routine@ tubing continued to receive in-shop inspection.  This included virtually all tubing for live aircraft and aircraft in check in the hanger.  (T. Vol. 1 at 109-10; Vol. 2, 253, 268, 315-16, 347-48, 386.)  Most of the employee=s work after Carlson transferred and Houska retired was line and check hanger tubing.  Routine tubing, basically stock tubing, although not inspected in the shop,^[6] was inspected upon installation in an aircraft.  (T. Vol. 1 at 111; Vol. 2 at 321-22, 376.)

 

Although there was a significant increase in the backlog of stock work orders due to a noise retrofit on DC-9 aircraft in the fall of 1993, testimony from Velasquez, Carlson, and Martin indicates that the employee and Martin were doing mostly line and check hanger work on the day shift, and the backlog orders were being worked on by the second or third shift.  Carlson testified that there were cyclical increases in backlog work orders, and both Velasquez and Martin testified the backlog was reduced and was back to normal by the fall or end of 1994.  Velasquez testified he was not concerned about the backlog, that the deadlines for stock work orders were flexible and he did not put pressure on anyone to get the work done.  The employee=s workload in an eight-hour day remained essentially the same.  (T. Vol. 1 at 125-27, 130-31, 135-36, 212, 215, 217, 221, 224-25; Vol. 2 at 259, 263, 274-75, 282-83, 313-18, 325, 327, 337, 339, 341-42, 354-55, 356, 359, 380.)

 

Finally, although the employee reported feeling Atrapped@ and was worried about returning to the tubing department after his 45-day assignment to ovens, there was general agreement the 45 day assignment could have been extended to 90 days, and likely would have been had it been requested.  Johnson, Viertel and Velasquez also testified that, even with a freeze on bids, they would likely have been able to work out an agreement allowing the employee to move permanently to ovens.  (T. Vol. 1 at 128-30, 205-06; Vol. 2 at 276, 329-31, 380-82, 421-23.)  The employee expressed his concerns about returning to tubing to both Viertel and Pluff.  Both testified they tried to reassure the employee that he would not have to return to the tubing shop.  (T. Vol. 2 at 289-90, 294-95, 299,  421, 428, 430.)

 

Given this evidence,^[7] the compensation judge could reasonably conclude the petitioner failed to prove the employee was subjected to stress beyond the ordinary day-to-day stress to which all employees are exposed.  The point is not whether we might have viewed the evidence differently, but whether the findings are so manifestly contrary to the evidence as to compel reasonable minds to adopt a contrary conclusion.  We cannot do so on the record here and must, therefore, affirm.

 

 

SEPARATE CONCURRING OPINION

 

R.V. (SALLY) OLSEN, Judge

 

I am in full agreement with the decision of the majority on remand in this matter.  I would, however, affirm in accordance with the dissenting opinion of Justice Stringer in Middleton v. Northwest Airlines, 600 N.W.2d 707, 712-13, 59 W.C.D. 429, 439-41 (Minn. 1999), as I believe that Justice Stringer correctly interpreted the law with respect to the compensability of the employee=s suicide on the facts in this case.