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NO. COA03-480
NORTH CAROLINA COURT OF APPEALS
Filed: 6 April 2004
DOROTHY S. LEWIS,
Employee,
Plaintiff,
v. North Carolina Industrial Commission
I.C. File No. 033675
DUKE UNIVERSITY,
Employer,
Self-Insured,
KEMPER RISK MANAGEMENT,
Servicing Agent
Defendant
Appeal by plaintiff from opinion and award of the North Carolina Industrial Commission entered 15 November 2002. Heard in the Court of Appeals 24 February 2004.
J.
Randolph Ward for plaintiff appellant.
Cranfill,
Sumner & Hartzog, L.L.P., by Jaye E. Bingham, for defendant appellee.
WYNN,
Judge.
In
her appeal from an opinion and award of the Industrial Commission denying her
claim for benefits, Dorothy Lewis, Plaintiff, contends the Commission erred in
finding and concluding that she failed to prove she sustained an occupational
disease in her position as a registered nurse at the medical center of
Defendant Duke University. For the reasons hereafter stated, we affirm the
opinion and award of the Commission.
The
pertinent history of the instant appeal is as follows: On 24 April 2000,
Plaintiff filed a claim for workers’ compensation benefits, alleging she was
permanently and totally disabled due to “major depressive disorder, recurrent,
severe with melancholic features, and dysthymic disorder.” On 25 February 2002,
Plaintiff’s claim for benefits came before the Commission. Dr. Nancy L. Roman,
Plaintiff’s treating psychiatrist, and Milton Lewis, Plaintiff’s husband,
testified on behalf of Plaintiff. Plaintiff was unable to testify. The evidence
before the Commission tended to show the following:
Plaintiff
began her employment as a registered nurse with Defendant in 1973 and worked
continuously in that capacity until 15 August 1998, her last date of work.
During the time period of 1989 until 1992, Plaintiff worked primarily with
terminally ill patients, which she found “extremely disturbing.” According to
Dr. Roman, “some of these patients might be there for a month or two, or
longer, before they died, so that you’d get attached to these patients, and
then they would die. . . . there were several deaths, and that . . . was very
difficult for [Plaintiff].” Defendant had “no support in place to help the
staff cope with this kind of experience” or “deal with all these losses.” Mr.
Lewis testified that “death was something that [Plaintiff] had never really
dealt with that well from her childhood” and it was “hard for her, it was
difficult.”
In
1993, the hospital reorganized “and all of the operating rooms were merged, and
four different . . . nursing staffs were merged.” Following the merger,
Plaintiff was assigned to care for post-anesthesia patients. The reassignment
caused stress to Plaintiff, who felt inadequately trained to handle the work.
Plaintiff “did not feel comfortable with it, so not adequately trained on the
-- with the equipment, and she felt it was risking the patients, it was not
good patient care.” During the restructuring, some nurses were moved from
Plaintiff’s unit, which caused Plaintiff to “feel badly about being left
behind.” According to Dr. Roman, Plaintiff characterized the situation as “an
injustice [because] they had been promised that they would be moving to the new
building, and then they were not going to -- they were told they would not be.
The ones remaining were not going to the new building. And it was never clear
why some people were picked and others weren’t.” Plaintiff believed that some
of the people picked “were [not] as hard working as she was. So it was a
difficult time for her . . . .” Moreover, loss of nursing staff resulted in
Plaintiff working longer hours to accomplish the work load. Plaintiff
encountered additional stress when a supervisor whom Plaintiff trusted and with
whom she had a good relationship lost her position. Frequent changes in
Plaintiff’s shifts caused Plaintiff to suffer from acute insomnia, which added
to her stress.
Although
Plaintiff applied for other positions at the hospital, she was not granted any
interviews, “[a]nd she became, not only discouraged, but kind of suspicious as
to what this whole process was. And she was frustrated, because she was trying
to get to a . . . different position that might be less stressful for her.” Mr.
Lewis confirmed that Plaintiff “felt she was being discriminated against at
times.” Plaintiff “certainly had no full explanation for why she wasn’t getting
hired, and she knew of other people with less credentials and qualifications
who were being hired with less experience and ability than herself, and that
took a lot out of her emotionally.”
Dr.
Roman testified that Plaintiff experienced particular stress and anxiety over
her job security. Because Plaintiff was an experienced nurse, she earned a
higher salary than many other nurses, and “there was a feeling that they were
trying to get rid of -- the nurses at the higher end [of the pay scale].”
Plaintiff also felt her assertiveness and willingness to “stand up for herself”
and other nurses put her at greater risk of losing her position. According to
Dr. Roman, Plaintiff believed Defendant was “scrutinizing her every action, and
trying to come up with reasons to terminate her.” Mr. Lewis testified that “the
advent of managed care had taken full root . . . [and Plaintiff] was almost
like a dinosaur in the way, and so she felt that they wanted to get rid of
her.” Mr. Lewis advised his wife at the time that “[w]hen people want to get
rid of you, they have ways of setting you up for that.”
In
addition to the workplace stress, Dr. Roman and Mr. Lewis testified that events
personal to Plaintiff caused her great distress. Specifically, the death of
Plaintiff’s father approximately eight months before the onset of Plaintiff’s
disability caused Plaintiff “intense and prolonged” grief. Plaintiff’s father
died after receiving treatment at Defendant hospital. Mr. Lewis stated
Plaintiff had been “very, very close to her father” and she “felt a lot of guilt”
about her father’s death, in that her father sought treatment at the hospital
upon Plaintiff’s recommendation. Two weeks after her father died, Plaintiff’s
half-sister also died. Dr. Roman opined that Plaintiff’s depression would not
have “progressed to this degree without the personal stressors.”
Plaintiff
was first referred to Dr. Roman in August of 1998for severe depression. Dr.
Roman opined that the duties of Plaintiff’s employment substantially
contributed to the development of her depression, and that Plaintiff’s
employment placed her at a greater risk of developing depression than the
public in general. When asked to identify specific workplace stressors, Dr.
Roman stated that “the amount of stress in the job place just really increased
and increased. There was no support system at -- in her job, and . . . it got
to the point where they were giving the staff on the unit she worked on much
more responsibilities than was possible to -- to manage.” Dr. Roman added that
“there was a lot of staff turnover, and in particular, what I guess was labeled
unfair turnover, or discriminatory turnover.” Dr. Roman noted that, until 2001,
Plaintiff “was not able to discuss” her workplace during her therapy with Dr.
Roman, as the issue was too emotionally difficult for Plaintiff to address
without “breaking down.”
When
asked to identify specific workplace “triggering factors” for Plaintiff’s
stress and resulting depression, Mr. Lewis testified as follows:
[Plaintiff]
felt that she was being written up for things she didn’t do. She’s been falsely
accused. She was trying to get out of the vacuum of where she was because there
was so much intense pressure and stress. Again, there was a dilution of the
staff, she’s being asked to do a lot more work in a shorter period of time with
less personnel. Okay. The game had changed dramatically in terms of
expectations. The managed care policies that she was being forced to deal with
caused a lot of turmoil in the area where she was . . . . [s]he just didn’t get
any jobs, and that grew more and more frustrating for her. She felt that
something was going on that she had no control over and that she was literally
being forced out. And then they created -- they built a new building that was
going to take the surgical unit over to that area, and they found out that
everybody wasn’t going, so this created anxiety in her about whether or not she
was going to have a job again. . . . One young lady, who was her supervisor at
the time, ended up without a job and nowhere to go and was out of work for a
while . . . it was a difficult time for a lot of people, not just for
[Plaintiff], but for a lot of other people . . . on that staff, and
particularly the African-American nurses.
Based
on the foregoing and other evidence, the Commission found, inter alia,
that
8. Plaintiff
suffered from depression as a result of her perception that defendant’s
procedures were unjust and the workload unjustified, her concern about the
economic consequences of losing her position and benefits, her fear that she
would lose the career which she highly valued, her perception that her skills
as a nurse were not appreciated, and her perception that she was being
“watched” and was not being treated fairly.
. . . .
12. The
Full Commission finds that plaintiff’s employment stressors -- the personnel
conflicts, a demanding workload, job security issues, and her feelings of being
undervalued as a professional -- did cause or substantially contribute to her
depressive disorder. The Commission further finds that these stressors are not
characteristic of nursing work as opposed to occupations in general and that
her employment as a nurse did not place her at an increased risk of contracting
a depressive disorder as opposed to the general public not so employed.
The Commission
concluded that Plaintiff failed to prove she sustained an occupational disease
and entered an opinion and award denying Plaintiff’s claim for benefits.
Plaintiff appealed.
____________________________________________________
Plaintiff’s
primary contention on appeal is that the Commission erred in finding and
concluding that she did not sustain an occupational disease. We conclude
Plaintiff failed to present sufficient evidence to support her claim, and we
therefore affirm the opinion and award of the Commission.
Appellate
review of an opinion and award of the Commission is limited to a determination
of (1) whether the findings of fact are supported by competent evidence, and
(2) whether the conclusions of law are supported by the findings. See Smith-Price
v. Charter Pines Behavioral Ctr., __ N.C. App. ___, 584 S.E.2d 881,
884 (2003). Where there is “‘evidence of substance which directly or by
reasonable inference tends to support the findings, this Court is bound by such
evidence, even though there is evidence that would have supported a finding to
the contrary.’“ Shah v. Howard Johnson, 140 N.C. App. 58, 61-62, 535
S.E.2d 577, 580 (2000) (quoting Porterfield v. RPC Corp., 47 N.C. App.
140, 144, 266 S.E.2d 760, 762 (1980)), disc. review denied, 353 N.C.
381, 547 S.E.2d 17 (2001).
An
occupational disease is defined as “[a]ny disease . . . which is proven to be
due to causes and conditions which are characteristic of and peculiar to a
particular trade, occupation or employment, but excluding all ordinary diseases
of life to which the general public is equally exposed outside of the
employment.” N.C. Gen. Stat. §97-53(13) (2003). “The claimant bears the burden
of proving the existence of an occupational disease.” Norris v. Drexel
Heritage Furnishings, Inc., 139 N.C. App. 620, 621, 534 S.E.2d 259, 261
(2000), cert. denied, 353 N.C. 378, 547 S.E.2d 15 (2001).
It
is well established that work-related depression or other mental illness may
qualify as compensable occupational diseases under appropriate circumstances. See,
e.g., Smith-Price, __ N.C. App. at __, 584 S.E.2d at 888 (affirming award
of benefits to a registered nurse who suffered from post-traumatic stress
disorder); Jordan v. Central Piedmont Community College, 124 N.C. App.
112, 117, 476 S.E.2d 410, 413 (1996) (stating that case law “recognized
depression, a mental condition, as an occupational disease and compensable
under the [Workers’ Compensation] Act”), disc. review denied, 345 N.C.
753, 485 S.E.2d 53 (1997); Pulley v. City of Durham, 121 N.C. App. 688,
694, 468 S.E.2d 506, 510 (1996) (affirming an award of benefits to a police
officer who developed post-traumatic stress disorder and depression). The
claimant must first establish, however, that “the mental illness or injury was
due to stresses or conditions different from those borne by the general
public.” Pitillo v. N.C. Dep’t of Envtl. Health & Natural Res., 151
N.C. App. 641, 648, 566 S.E.2d 807, 813 (2002). To do so, the claimant must
show that her psychological condition, or the aggravation thereof, was (1) “due
to causes and conditions which are characteristic of and peculiar to a
particular trade, occupation or employment” and that it is not (2) an “ordinary
disease[] of life to which the general public is equally exposed.” N.C. Gen. Stat.
§97-53(13); Clark v. City of Asheville, __ N.C.App. ___, 589 S.E.2d 384,
386-87 (2003); Smith-Price, __ N.C. App. at __, 584 S.E.2d at 885. These
elements are met “if, as a matter of fact, the employment exposed the worker to
a greater risk of contracting the disease than the public generally.” Rutledge
v. Tultex Corp., 308 N.C. 85, 93-94, 301 S.E.2d 359, 365 (1983). “The
greater risk in such cases provides the nexus between the disease and the
employment which makes them an appropriate subject for workman’s compensation.”
Booker v. Medical Center, 297 N.C. 458, 475, 256 S.E.2d 189, 200 (1979);
James v. Perdue Farms, Inc., __ N.C. App. __, 586 S.E.2d 557, 560
(2003).
The
issue of whether a claimant’s particular occupation places him or her at an
increased risk of contracting depression or other mental illness has arisen in
several recent cases. In Woody v. Thomasville Upholstery, Inc., 146 N.C.
App. 187, 552 S.E.2d 202 (2001), reversed per curiam, 355 N.C. 483, 562
S.E.2d 422 (2002), the plaintiff sought compensation for depression she alleged
was caused by her employment as a marketing assistant with the defendant
company. The evidence tended to show that the plaintiff suffered from pressure
and stress at her work, in large measure due to conflict with an abusive
supervisor. Id. at 189-90, 552 S.E.2d at 204-05. The Industrial
Commission awarded the plaintiff benefits, and a divided panel of the Court of
Appeals affirmed the opinion and award. The Court of Appeals concluded that
plaintiff’s employment exposed her to a greater risk of contracting depression
than the public generally, in that it involved
(1)
an extremely stressful and verbally abusive relationship with her emotionally
unstable supervisor, which caused plaintiff to feel demeaned, embarrassed, humiliated,
and worthless; and (2) a workplace environment in which plaintiff justifiably
felt powerless over the situation and betrayed by her employer because her
employer appeared to care more about the supervisor’s financial value to the
company than her abusive treatment of employees.
Id. at 201, 552 S.E.2d at 211.
Judge
Martin dissented from the majority opinion, stating that
[n]otwithstanding
the fact that plaintiff’s job-related stress caused her depression and
aggravated her fibromyalgia, such facts cannot support the conclusion that
plaintiff’s mental and physical conditions were occupational diseases as
defined by the statute. The findings indicate merely that plaintiff suffered
from depression and fibromyalgia after being placed in the unfortunate position
of working for an abusive supervisor, which can occur with any employee in any
industry or profession, or indeed, in similar abusive relationships outside the
workplace. Therefore, I do not believe plaintiff’s conditions can be construed
as “characteristic of and peculiar to” her particular employment; they are
ordinary diseases, to which the general public is equally exposed outside the
workplace in everyday life.
Id. at 202, 552 S.E.2d at 211 (Martin, J., dissenting). Our
Supreme Court adopted Judge Martin’s dissent and reversed the decision of the
Court of Appeals.
This
Court examined Woody in the context of an award of benefits by the
Commission to a registered nurse who suffered post-traumatic stress disorder
arising from her employment with the defendant psychiatric hospital. See
Smith-Price, __ N.C. App. at __, 584 S.E.2d at 881. The evidence tended to
show that the plaintiff worked with “patients whose problems ranged from being
suicidal, homicidal, or otherwise disturbed due to mental disease and/or
substance abuse.” Id. at __, 584 S.E.2d at 882. In addition, the
defendant psychiatric hospital had administrative and staffing problems that
created a “chaotic atmosphere.” Id. at __, 584 S.E.2d at 884. The
plaintiff also encountered stress and conflict in dealing with her co-workers
and supervisors. The Commission moreover found that “[m]any incidents occurred
at [defendant hospital] that caused stress to plaintiff, including plaintiff’s
concern about the safety of the [patients], improper staffing, and being
instructed to clock out while still being required to continue working.
Plaintiff received no support from supervisors, which caused her a great deal
of stress.” Id. at __, 584 S.E.2d at 883. The Commission concluded that
the plaintiff’s employment placed her at a greater risk for contracting
post-traumatic stress disorder than members of the general public and awarded
her benefits. Upon appeal, this Court examined the precedent set forth in Woody
and affirmed the award of benefits to the plaintiff as follows:
In
the present case we find that plaintiff presented evidence which supports the
Commission’s determination that her mental disorders stem from a job which has
unique stresses to which the general public is not exposed. Plaintiff was caring
for the mentally ill whose problems ranged from the suicidal to those who were
severely anxious or depressed. There had already been one death at [defendant
psychiatric hospital] which resulted in local and national news coverage of the
conditions at [the hospital] under which plaintiff labored. This case presents
a situation far more severe than merely an employee’s relationship with an
abusive supervisor as was the case in Woody.
We believe plaintiff worked in an
atmosphere permeated with stress and this case is much more analogous to Pulley
due to the fact that she worked with an aberrant population where treatment
errors could (and did at least once) result in death. These are not common
workplace stresses.
Thus we hold that the Commission could
properly find, on the record before it, that plaintiff suffered from a
compensable occupational disease, even though evidence to the contrary existed.
Id. at __, 584 S.E.2d at 887-88.
More
recently, this Court addressed the issue of whether a mental disease was due to
conditions “characteristic of and peculiar to” employment in the case of Clark
v. City of Asheville, __ N.C. App. __, 589 S.E.2d 384 (2003). There, a
firefighter with the City of Asheville filed a claim for workers’ compensation
benefits, alleging he had suffered an occupational disease, post-traumatic
stress disorder, after failing a driving test and being told he could no longer
drive fire trucks for the city. The Commission denied the plaintiff’s claim,
noting that although “[t]he position of firefighter may be considered
inherently dangerous and exposes firefighters to many traumatic events not
usually witnessed by the general public,” the plaintiff “fail[ed] to show that
such events were factors significantly contributing to [his] psychological
problems, including [post-traumatic stress disorder], depression and anger.” Id.
at __, 589 S.E.2d at 386. The Commission further found that
[f]ailing
an employment test and perceiving demotion are not uncommon circumstances in
the workplace. Such occurrences are not characteristic to employment as a
firefighter, and employment as a firefighter does not increase one’s risk of
experiencing stress as a result of failing a test or perceiving demotion.
Neither plaintiff’s [post-traumatic stress disorder] nor his mental state in
dealing with the driver’s test or [his supervisor] were the result of any
traumatic event or events characteristic of employment as a firefighter.
Id. at __, 589 S.E.2d at 386. On appeal, we affirmed the
Commission’s denial of benefits, concluding that the plaintiff failed to show
that his psychological condition was due to causes and conditions
characteristic of and peculiar to his employment as a firefighter. We agreed
with the Commission that “[t]he giving of tests . . . can be expected in any
work setting” and that “working for an abusive supervisor . . . ‘can occur with
any employee in any industry or profession.’“ Id. at __, 589 S.E.2d at
387 (quoting Woody, 146 N.C. App. at 202, 552 S.E.2d at 211 (Martin, J.,
dissenting)).
In
the instant case, we agree with the Commission that Plaintiff presented
insufficient evidence to demonstrate that the workplace stressors contributing
to the development of her depression were causes and conditions characteristic
of and peculiar to her position as a registered nurse. Although nursing can and
may have exposed Plaintiff to traumatic events and unique stress unlike that
experienced by the general public, Plaintiff, like the plaintiff in Clark,
failed to show that it was such untoward exposure in her employment that caused
her disability. The testimony by Dr. Roman and Mr. Lewis tended to show that
the workplace stressors contributing to Plaintiff’s depression included (1) a
demanding workload; (2) the lack of support system at her employment; (3)
staffing decisions Plaintiff considered unfair or discriminatory; (4) her
perception that she was undervalued at her work; (5) management restructuring
and changes in hospital policies; (6) changes in shifts contributing to
insomnia; and (7) Plaintiff’s anxiety over her job security. None of these
stressors is characteristic to or peculiar to the nursing profession; rather,
they are general stressors common to many workplaces. Thus, Plaintiff failed to
prove that her employment placed her at a greater risk of developing depression
than the public generally. See Rutledge, 308 N.C. at 93-94, 301 S.E.2d
at 365.
Nonetheless,
Plaintiff argues the Commission failed to properly evaluate Plaintiff’s
evidence in the context of the nursing profession, where the “work literally
involved matters of life and death.” She contends her sensitivity to death, and
her exposure to the terminally ill patients substantially contributed to the
development of her depression. We must disagree. Although Plaintiff’s exposure
to terminally ill patients could be considered a stressor characteristic of and
peculiar to the nursing profession, see Smith-Price, __ N.C. App. at __,
584 S.E.2d at 888 (stating that working with an aberrant population where
treatment error could result in death did not involve common workplace
stresses), she failed to prove that her work with such patients substantially
contributed to her illness. Plaintiff stopped working with terminally ill
patients approximately six years before she ended work at Defendant hospital.
Given the length of time between Plaintiff’s exposure to the terminally ill
patients and the onset of her disability, the Commission could properly find
that Plaintiff’s exposure to death “was not a significant [factor] in the
development of [P]laintiff’s depressive disorder.”
Plaintiff
further contends it was her deep concern for her patients’ welfare that was the
underlying factor placing intense stress on Plaintiff. Plaintiff, however,
presented inadequate evidence to support her contention. When asked to
articulate the workplace stressors identified by Plaintiff, Dr. Roman and Mr.
Lewis focused almost exclusively on issues of Plaintiff’s dissatisfaction with
staffing and changes in management policy, anxiety over job stability, perceived
discrimination, and the general demanding nature of the job. Given this
evidence, the Commission could properly find and conclude that “[P]laintiff’s
employment stressors -- the personnel conflicts, a demanding workload, job
security issues, and her feelings of being undervalued as a professional” were
“not characteristic of nursing work as opposed to occupations in general and
that her employment as a nurse did not place her at an increased risk of
contracting a depressive disorder as opposed to the general public not so
employed.”
Finally,
Plaintiff contends the Commission failed to give proper weight to the testimony
by Dr. Roman. It is well established, however, that the Commission is the sole
judge of the credibility of the witnesses and the weight to be given their
testimony. Matthews v. City of Raleigh, __ N.C. App. __, 586 S.E.2d 829,
833 (2003). Further, although Dr. Roman testified that Plaintiff’s employment
placed her at greater risk of developing depression, she did not identify
specific factors unique to Plaintiff’s job that led to the development of
Plaintiff’s depression. Moreover, Dr. Roman testified that Plaintiff did not
speak of her employment with Defendant until three years after she left her
position. Under these circumstances, the Commission could properly find that,
contrary to Dr. Roman’s assertions, Plaintiff’s employment did not place her at
an increased risk of contracting a depressive disorder.
We
therefore affirm the opinion and award of the Commission.
Affirmed.
Judges
McGEE and TYSON concur.