Lead Opinion

*********** Having reviewed the competent evidence of record, the Full Commission reverses the Opinion Award of the Deputy Commissioner and finds that plaintiff did not sustain an occupational disease under G.S. §97-53(13).

STIPULATIONS 1. All parties are properly before the North Carolina Industrial Commission and are subject to and bound by the provisions of the North Carolina Workers' Compensation Act.

2. On 15 August 1998, an employment relationship existed between plaintiff-employee and defendant-employer.

3. At all times relevant to this claim defendant has been and is self-insured.

4. The parties stipulate plaintiff's average weekly wage is sufficient to yield $532.00 per week, the maximum compensation rate for 1998.

5. Plaintiff's medicals from UNC Hospital are admitted into evidence as Stipulated Exhibit # 1.

6. Plaintiff's medical records from Duke University Medical Center are admitted into evidence as Stipulated Exhibit # 2.

7. Plaintiff's personnel records from defendant are admitted into evidence as Stipulated Exhibit # 3.

8. Employee Occupational Health Service and/or Employee Assistance Department records are admitted into evidence as Stipulated Exhibit # 4.

9. Dr. Nancy Roman's correspondence is admitted into evidence as Stipulated Exhibit # 5.

10. Medical bills for treatment of plaintiff are admitted into evidence as Stipulated Exhibit # 6.

11. Excerpts from defendant's long-term disability booklet are admitted into evidence as Stipulated Exhibit # 7.

12. Paycheck attachments are admitted into evidence as Stipulated Exhibit # 8.

13. Long-term disability plan check attachments are admitted into evidence as Stipulated Exhibit # 9.

14. Industrial Commission Forms including Form 22 and the Order filed 13 February 2001 by the undersigned allowing plaintiff to amend the Forms 18 and 33 to reflect 15 August 1998 as the disability date, are admitted into evidence as Stipulated Exhibit # 10.

The issues to be determined by this hearing are:

1.) Whether plaintiff contracted an occupational disease in the course and scope of her employment within the meaning of G.S. § 97-53(13).

2.) Whether the treatment rendered by Dr. Nancy Roman tendered to effect a cure or give plaintiff relief and should be paid by defendant, and whether plaintiff is entitled to future medical compensation; and

3.) Whether defendant is due an offset against the accrued total disability benefits paid to plaintiff; and

4.) Whether plaintiff is entitled to attorney's fees pursuant to G.S. § 97-88.1

*********** Based upon all of the competent evidence of record, the undersigned makes the following additional

FINDINGS OF FACT 1. On 15 August 1998, plaintiff was 45 years old and employed by defendant as a registered nurse. Plaintiff worked continuously in this capacity from 17 May 1973 until her last date of work, 15 August 1998. Plaintiff has not been employed since she left her job with defendant.

2. Plaintiff did not testify. Without objection, plaintiff's husband testified about her problems while working at defendant hospital. Plaintiff's husband had little or no firsthand knowledge of what was occurring at the hospital; his testimony was primarily based on what plaintiff had told him.

3. Plaintiff has been diagnosed with a major depressive disorder, recurrent, severe, with melancholy features and dysthymic disorder. Dr. Nancy Roman is her treating psychologist. Dr. Roman began private practice in 1996. She did not begin treating plaintiff until late 1998. Dr. Roman did not keep notes and did not appreciate plaintiff's complaints about her employment until plaintiff began talking about them in 2001, around the time that Dr. Roman was to be deposed. This was long after the events which culminated in plaintiff's disability leave beginning in 1998. It was clear to Dr. Roman that the causes of plaintiff's disorder were employment stressors and personal stressors, including the deaths of her father and half-sister. The death of her father was particularly difficult because she had recommended defendant hospital for his treatment and she felt that his care had not been adequate. The primary focus of Dr. Roman's treatment was keeping plaintiff alive, as plaintiff was suicidal and initially required hospitalization.

4. From 1989 through 1992, plaintiff was employed as a registered nurse in the Hanes Ward at defendant hospital. Many of the patients were terminally ill, and plaintiff was exposed to many deaths. Dr. Roman mentioned that this was a difficult period for plaintiff. However, a review of the evidence indicates that this factor was not a significant one in the development of plaintiff's depressive disorder. Plaintiff liked her job as a nurse and took pride in patient care and doing a good job. It was the personnel activities with which plaintiff had difficulty coping and which caused her depression. Dr. Roman also noted that plaintiff's condition (as relayed to her by plaintiff, after the fact) was worse after 1993.

4. During 1992 and 1993, Hanes Ward was closing, and there was a period of reorganization at defendant hospital. Plaintiff moved to Duke North as a part of a merged nursing staff to attend to patients in a combined facility of operating rooms. Plaintiff and other nurses were given new duties caring for surgical patients, and plaintiff did not believe that she had adequate training for post-surgical work. Plaintiff felt that the hospital was understaffed and that she, particularly when acting as charge nurse, was required to do more than she could handle. This situation was stressful for her. Plaintiff believed that patients were being treated as "customers" and that the quality of care as she knew it was deteriorating. Plaintiff did not adjust well to a managed care approach. As a result, she was frustrated and under stress.

5. Plaintiff was involved in disputes with doctors and other supervisors. A doctor yelled at her. A supervisor assumed that she had done something wrong without asking her first. Information was placed in plaintiff's personnel file that plaintiff challenged and was successful in having removed. Defendant's adverse weather policy caused plaintiff worry and stress; she felt that she had to show up at work even though the roads were unsafe for travel.

6. Plaintiff would speak up when she perceived that something was not "right." A supervisor friend, who lost her job, warned plaintiff that she needed to be careful. Plaintiff felt that she was subjected to race discrimination and that she was being watched. She did not understand why she was not offered many of the jobs that she applied for with defendant.

7. During a transition from the old hospital to the new, plaintiff was required to reapply for a job in the new units. Plaintiff was initially passed over, but finally was given a position. This reapplication process caused plaintiff stress and worry. Plaintiff did not have the same shift each week. Having different shifts seemed to make it more difficult for her to get adequate sleep because of preexisting insomnia.

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.

9. Plaintiff seriously considered but declined an early retirement/severance package designed by defendant to induce senior, better-compensated employees to resign. After plaintiff declined this offer, she became concerned the defendant was motivated to discharge her.

10. Plaintiff was exposed to Hepatitis C in 1995, which upset her because her mother suffered with the disease. Plaintiff also strained her back in 1997 while moving a stretcher. Dr. Roman indicated that the exposure to Hepatitis C would probably have been the most stressful of her physical injuries, but also stated that plaintiff never really talked about the physical injuries, and she did not know how stressful they were to plaintiff. It was the workload and sense of being undervalued that led to the depressive disorder.

11. Dr. Roman testified that plaintiff's employment stressors substantially contributed to the development of plaintiff's depressive disorder and placed her at a greater risk than the public in general of contracting this disease.

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 foregoing findings of fact, and conclusion of law engender the following additional:

CONCLUSIONS OF LAW 1. Plaintiff's depressive disorder was not due to causes and conditions characteristic of and peculiar to plaintiff's employment with defendant as a nurse; rather, her psychological condition is an ordinary disease of life to which the general public, not so employed, is equally exposed. Plaintiff, therefore, has failed to prove that she sustained an occupational disease. G.S. § 97-53(13); see Booker v. Duke MedicalCenter, 297 N.C. 458, 256 S.E.2d 189 (1979).

2. The Workers' Compensation Act was never intended to be a general accident and health insurance policy. Weaver v. Swedish ImportsMaintenance, 319 N.C. 243, 354 S.E.2d 477 (1987). Company decisions concerning reorganization and restructuring, conflicts between supervisors and employees, concerns about job stability, salary, and promotions or transfers, being passed over for jobs, and other personnel issues and events are experiences common to many if not all employees at some time in their work history and are not characteristic of any particular employment. An employee's psychological response to such circumstances is not compensable as an occupational disease. G.S. §97-53(13); see Woody v. Thomasville Upholstery, 355 N.C. 483,562 S.E.2d 422 (2002), rev'g per curiam for reasons stated in JudgeMartin's dissent, 146 N.C. App. 187, 552 S.E.2d 202 (2001).

*********** Based upon the foregoing stipulations, findings of fact and conclusions of law, the Full Commission enters the following

AWARD 1. Under the law, Plaintiff's claim must be and is hereby denied.

2. Each side shall pay their own costs, except that Defendants shall pay the expert witness fees previously assessed.

S/______________ RENE C. RIGGSBEE COMMISSIONER

CONCURRING:

S/_______________ DIANNE C. SELLERS COMMISSIONER

DISSENTING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

Dissenting Opinion

Under appropriate circumstances, work-related depression or other mental illness may be a compensable occupational disease. Pitillo v.N.C. Dept. of Envtl. Health and Natural Resources, 566 S.E.2d 807, 813 (2002) (citing to Jordan v. Central Piedmont Comm. College,124 N.C. App. 112, 476 S.E.2d 410 (1996); Baker v. City of Stanford,120 N.C. App. 783, 463 S.E.2d 559 (1995), disc. review denied,342 N.C. 651, 467 S.E.2d 703 (1996)). However, the claimant must prove that the mental illness or injury was due to stresses or conditions different from those borne by the general public. Id. (citing to Woodyv. Thomasville Upholstery, Inc., 355 N.C. 483, 562 S.E.2d 422 (2002) (adopting dissent in 146 N.C. App. 187, 202, 552 S.E.2d 202, 211 (2001))). Thus, the claimant must establish both that her psychological illness is `due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment' and that it is not `an ordinary disease of life to which the general public is equally exposed.' Id. (citing to Booker v. Medical Center, 297 N.C. 458, 468,256 S.E.2d 189, 196 (1979) (quoting N.C. Gen. Stat. § 97-53(13) (2001))).

A disease is `characteristic' of a profession when there is a recognizable link between the nature of the job and an increased risk of contracting the disease in question. Keller v. City of Wilmington PoliceDept., 65 N.C. App. 675, 677, 309 S.E.2d 543, 545 (1983) (citing Booker,297 N.C. at 472, 256 S.E.2d at 198). Additionally, a disease is `peculiar to the occupation' when `the conditions of . . . employment . . . result in a hazard [that] distinguishes it in character from the general run of occupations . . . and is in excess of that attending employment in general. Id. (citing Booker, 297 N.C. at 473, 256 S.E.2d at 199).

In the present case before the Commission, the majority has found in its Opinion and Award, that plaintiff's diagnosed depression, dysthymia, insomnia, and other psychological problems were not "characteristic of" and "peculiar to" plaintiff's employment with defendant as a nurse. Rather, the majority erred in finding plaintiff's condition to be an ordinary disease of life to which the public, not so employed, is equally exposed. The majority has relied upon Woody v. Thomasville Upholstery,355 N.C. 483, 562 S.E.2d 422 (2002), rev'g per curiam for reasons statein Judge Martin's dissent, 146 N.C. App. 187, 552 S.E.2d 202 (2001), in which the claimant's depression and other mental problems, as a consequence of difficulties with working for an abusive supervisor, were found to be no more than conditions and occurrences to which the general public is equally exposed outside the workplace in everyday life.552 S.E.2d at 211-212. However, the facts in the present case are distinguishable from Woody.

The plaintiff before this Commission did experience many of the same work-related stressors that the general public is exposed to outside the workplace in everyday life, however much of her stressors exceeded what could reasonably be deemed as normal, day-to-day stressors and were indeed characteristic of and peculiar to plaintiff's employment as a nurse. Contemporary with the advancement of plaintiff's depression, she experienced severe bouts of insomnia as a consequence of the rotating shifts that she was required to work. Plaintiff's husband, Milton Lewis, and plaintiff's psychiatrist, Nancy L. Roman, M.D., both testified that plaintiff was required to work erratic shifts with constantly changing hours. Tr. at p. 18; Depo. of Dr. Roman at p. 25. When plaintiff made requests that defendant work out a better schedule for her because of her insomnia and resulting depression, her requests were not met. Depo. of Dr. Roman at p. 26. Such erratic shift work is not typical of the general public. Due to the 24-hour operations of a hospital and its need for around-the-clock nursing support, such conditions can only be described as characteristic of and peculiar to the field of nursing.

In addition to plaintiff's depression as a consequence of her insomnia, a great source of plaintiff's depression was caused by her proximity to chronically ill and dying patients. From 1973 through the early 1990's, plaintiff's duty as a registered nurse employed by defendant largely involved working with diabetic patients, teaching them how to care for themselves and how to manage their disease effectively. Tr. at p. 10. Her role as a nurse was to help people to get well through education and training. Id. However, during the early 1990's defendant experienced a reorganization of its hospitals. Tr. at p. 9. In order to maintain her employment with defendant, plaintiff was required to care for terminally ill patients, many of whom were inflicted with AIDS, terminal cancer, and end-stage renal disease. Tr. at pp. 10 51; Depo. of Dr. Roman at p. 36. Plaintiff grew close to many of her patients, only to have them die while in her care, which proved to be very difficult for plaintiff. Tr. at p. 10. Plaintiff soon found that defendant provided no support structure for her to fall back upon to help her and other nurses to deal with the grief experienced from losing patients. Tr. at p. 11; Depo. of Dr. Roman at p. 37. This factor caused plaintiff a good deal of stress and contributed to the development of her depression and dysthymia. Depo. of Dr. Roman at p. 67. It cannot be said that the general public is equally exposed outside the workplace to terminally ill and dying patients in everyday life. Such occurrences are undoubtedly characteristic of and peculiar to the field of nursing.

Quite similarly, the general public is not equally exposed to the awesome burden of facing life and death situations during a routine day at work. While doing post-operative work for defendant, plaintiff was made charge nurse on many of her shifts, meaning it was her responsibility to delegate duties to other nurses on her shift. Tr. at pp. 14 43-44. Often during these times, defendant required plaintiff to run her shift short-staffed and under great time pressures with more responsibilities than was possible to manage. Tr. at pp. 24 31; Depo. of Dr. Roman at pp. 31 55. Plaintiff felt that she had no choice than to report to the hospital hours before her shift started just to be sure that her staff could be prepared to meet the high demands defendant required of them. Depo. of Dr. Roman at p. 41. Being a professional caregiver, plaintiff felt it was her responsibility to ensure that patient care did not deteriorate and that the needs of her patients were met, despite defendants demands placed upon her and her staff. Depo. of Dr. Roman at p. 42 Defendant also required plaintiff to perform post-anesthesia work with minimal training or experience. Depo. of Dr. Roman at pp. 39-40. This caused great distress for plaintiff, who felt that she was placing her patients at risk of death or injury. Depo. of Dr. Roman at p. 40. Perhaps short-staffing, minimal training, and high productivity demands are common to many jobs, yet the general public, unlike plaintiff, does not carry the burden of knowing that a mistake or failure on the job could lead to death or injury. Such burden of facing life and death situations on a daily basis is certainly characteristic of and peculiar to the field of nursing.

This Commission has seen fit to recognize causal links between certain occupations and an increased risk of contracting an occupational disease. In Pulley v. City of Durham, 121 N.C. App. 688, 468 S.E.2d 506 (1996), the North Carolina Court of Appeals affirmed the Full Commission's findings that there is a recognizable link between the nature of police work and an increased risk of contracting depression.Id. at 694, 468 S.E.2d at 510; see also Harvey v. Raleigh Police Dept.,85 N.C. App. 540, 355 S.E.2d 147, cert. denied, 320 N.C. 631, 360 S.E.2d 86 (1987). The Commission had found that the claimant in Pulley suffered from depression as a consequence of work-related stressors, which included claimant's work-related exposure to instances of personal injury and death. Id. Just like the claimant in Pulley, plaintiff in the present case before us has seen her equal share of personal injury and death while in defendant's employ. Thus, the majority has erred in failing to recognize a causal link between nursing and an increased risk of contracting depression in spite of the fact that such recognition has been afforded to members of law enforcement.

Even if the majority fails to recognize a causal link between nursing and an increased risk of contracting depression, plaintiff has met her burden of proving that her occupational exposure to stress was such a significant factor in the development of her depression and dysthymia that without it the diseases' development would not have been to such an extent that it caused the physical disability that resulted in plaintiff's incapacity for work. See Perry v. Burlington Industries,Inc., 80 N.C. App. 650, 343 S.E.2d 215 (1986) (citing Rutledge v. TultexCorp., 308 N.C. 85, 101, 301 S.E.2d 359, 369-70 (1983)). Dr. Roman, plaintiff's psychiatrist, testified that plaintiff's employment with defendant placed her at greater risk of contracting depressive and dysthymic disorders as opposed to the general public, and that the duties of plaintiff's employment caused, or substantially contributed to, the development of plaintiff's depressive and dysthymic disorders. Depo. of Dr. Roman at pp. 33-34. The record is replete with evidence that stressful events at work caused plaintiff to experience severe depression, dysthymia, insomnia, cognitive function impairment (i.e. forgetfulness, inability to concentrate), psychomotor retardation (i.e. slowed speech, trouble making eye contact), suicidal ideation, and a host of physical complaints attributed to stress, including functional bowel disease, fibromyalgia, reflux symptoms, night sweats, fatigue, and heart palpitations.

Despite the evidence of plaintiff's occupational disease and its causal relationship to her employment with defendant, the majority has stated that plaintiff's depressive disorder is more likely a consequence of the recent deaths of her father and half-sister. There is no question that such events contributed to plaintiff's depression; however, both Mr. Lewis and Dr. Roman testified that plaintiff's depression preceded these deaths. Tr. at p. 7; Depo. of Dr. Roman at p. 27. Additionally, they both testified that after these deaths, plaintiff looked forward to returning to work and was able to focus on her work despite her grief. Tr. at p. 30; Depo. of Dr. Roman at p. 24. It cannot be said that plaintiff's grief did not contribute to her depression, yet it is clear from Dr. Roman's testimony that absent her work stressor's, plaintiff would not have progressed to a severe depressive state. Depo. of Dr. Roman at p. 67. Moreover, N.C. Gen. Stat. § 97-53(13) does not require that the conditions of employment be the exclusive cause of an occupational disease in order to be compensable. Humphries v. Cone MillsCorporation, 52 N.C. App. 612, 614, 279 S.E.2d 56, 58 (1981). Thus, just because plaintiff's depression can be related in part to personal stressors does not preclude compensation for plaintiff's occupational exposure to severe stress.

Finally, the majority's Opinion and Award ignores the fact that normal work stressors, common to the general public, can reach a threshold at which they cause occupational injury, as in the case before us. Perhaps the Commission should consider the approach of other jurisdictions, in particularly the State of Wisconsin. In attempting to find an effective means of evaluating an employee's claim of mental injury without opening a floodgate of fraudulent claims, the Wisconsin Court of Appeals, inSchool Dist. No. 1 v. DILHR, 62 Wis.2d 370 377-78, 215 N.W.2d 373, 377 (1974), adopted the "unusual stress" test in response to the court's concern with the difficulties surrounding proof of the existence of severe emotional harm and the proof of a causal relationship between the injury and the employment. United Parcel Service, Inc. v. Lust,208 Wis.2d 306, 320, 560 N.W.2d 301, 306 (1997). The test requires a showing that a non-traumatically caused mental injury resulted from a situation of greater dimensions than the day-to-day emotional strain and tension that all employees must experience. Id. at 317. Based on the record evidence of plaintiff's work-related stressors during her employment with defendant, there is sufficient showing that such stressors were of a greater dimension and a heightened severity as opposed to an average worker's day-to-day emotional strain.

The majority has erred in failing to award compensation to plaintiff for her development of depression and dysthymia, each an occupational disease, as a result of extreme work-related stress experienced during her employment with defendant. In doing so, the majority creates a presumption that any type of mental injury causally related to day-to-day work-related stressors cannot be compensable no matter how great or severe that stressor may be. The majority fails to consider that a normal day-to-day stressor can exceed a threshold in which it surpasses the level of normal work-related stress experienced by the general public to become an "unusual" stressor and the cause of an occupational mental injury. Moreover, the majority has failed to recognize a causal link between nursing and an increased risk of contracting depression despite the evidence of record.

For these reasons, I respectfully dissent from the majority's Opinion and Award.

S/_____________ THOMAS J. BOLCH COMMISSIONER