Lead Opinion

*********** In accordance with the directives of the North Carolina Court of Appeals, the Commission finds as facts and concludes as matters of law the following, which were entered into by the parties at the hearing before the Deputy Commissioner as:

STIPULATIONS 1. The parties are subject to and bound by the provisions of the North Carolina Workers' Compensation Act.

2. An employer-employee relationship existed between plaintiff and defendant-employer at all relevant times.

3. Defendant is self-insured with Kemper Risk Management Services as the servicing agent on the risk.

4. Plaintiff's average weekly wage was to be determined by a Form 22 which had not been submitted as of the time of the filing of the Deputy Commissioner's Opinion and Award.

5. The date of plaintiff's alleged injury is March 25, 1994.

6. The issues for consideration are:

a. Did plaintiff sustain a compensable injury by accident arising out of and in the course of her employment;

b. If so, is plaintiff's mental condition the result of an injury by accident;

c. Did plaintiff contract a compensable occupational disease; and

d. To what benefits, if any, is plaintiff entitled?

7. The parties submitted a packet of bound and indexed medical records.

8. The depositions of Dr. James Bryant, Dr. Victor Mallenbaum and Dr. C. Thomas Gualtieri are a part of the evidence of record.

*********** In accordance with the directives of the North Carolina Court of Appeals, and based upon all of the competent, credible and convincing evidence of record, the Full Commission finds as follows:

FINDINGS OF FACT 1. At the time of the hearing before the Deputy Commissioner, plaintiff was 38 years of age, having been born on June 21, 1959. She is divorced and is the mother of two children. She received a high school education and a nursing assistant certification.

2. Plaintiff's previous jobs included work at Rocky Mount Mills, as a waitress, and doing assembly work.

3. Plaintiff began work with defendant-employer in 1980 and worked there continuously through the date of her alleged injury, March 25, 1994. Plaintiff performed production operator work, assembling filters according to specifications in written work orders. Plaintiff earned approximately $30,000.00 per year. She frequently worked overtime and her usual workweek was six days. Fred Fuller was plaintiff's supervisor in this employment.

4. Plaintiff had experienced prior problems with Mr. Fuller, and therefore she tried to avoid having any contact with him.

5. On March 25, 1994, plaintiff had a confrontation with Mr. Fuller. Under company seniority rules, plaintiff was entitled to select vacation days. Plaintiff had requested a day of vacation before the Easter holiday to coincide with a planned trip to visit family members in Atlanta. Only one individual from her work crew was allowed vacation at any given time. Mr. Fuller allowed an employee with less seniority than plaintiff to take the vacation day plaintiff had requested.

6. Plaintiff learned of Mr. Fuller's decision late in the workday on March 25, 1994. She went to Mr. Fuller's office to speak with him about this. Mr. Fuller became very upset when plaintiff asked about the day of vacation she had requested. Mr. Fuller is a large individual. He arose from his desk and began talking to plaintiff in a very loud, angry voice, waving his hands and fingers in plaintiff's face. The conversation ended abruptly after a loud discussion between plaintiff and Mr. Fuller.

7. Several witnesses corroborated plaintiff's testimony regarding a confrontation with Mr. Fuller and hearing raised voices.

8. Plaintiff left the office in tears and returned to her workstation. Shortly thereafter, Mr. Fuller came to plaintiff's workstation and called to her in a loud voice. He stated that he would give plaintiff the vacation day she had requested. Following the confrontation, plaintiff was emotionally upset and crying.

9. After the second discussion with Mr. Fuller, the shift ended. Plaintiff had broken out in hives. She was sobbing uncontrollably and went from work directly to the office of Dr. James Bryant, her family doctor, for medical attention. Dr. Bryant gave her prescription medications and referred her to Dr. Soong Lee, a psychiatrist, and Dr. Victor Mallenbaum, a psychologist, for treatment.

10. Plaintiff required psychiatric hospitalization approximately four weeks after the incident. She also was hospitalized at Nash General Hospital for emotional problems. Plaintiff underwent a coronary catheterization at Durham General Hospital. No heart problem was found. Plaintiff also received treatment at the Nash General Hospital Emergency Room for psychiatric problems.

11. Plaintiff continued to be treated by Drs. Bryant and Mallenbaum at the time of the hearing before the Deputy Commissioner.

12. During the summer of 1994, defendant's representatives contacted plaintiff. She also gave a statement to the servicing agent by telephone.

13. Dr. Lee, plaintiff's psychiatrist, wrote a letter to the company asking the employer not to contact plaintiff.

14. On two occasions, plaintiff attempted to return to work but was unable to perform her job duties due to medications she was taking at the time she reported to work.

15. Plaintiff received approximately three months of disability through a company plan.

16. Plaintiff was involved in an unrelated automobile accident on December 15, 1995. This resulted in relatively minor "whiplash" injuries that increased plaintiff's discomfort.

17. At the hearing before the Deputy Commissioner, plaintiff described multiple medications she was taking.

18. In her testimony plaintiff described an incident in which she left pans on the stove causing a house fire after the incident at work. Family members have to help insure that plaintiff does not have additional accidents.

19. Dr. Victor Mallenbaum is plaintiff's treating psychologist. According to Dr. Mallenbaum, plaintiff suffered a psychological trauma after the incident of March 25, 1994, and her symptoms were caused or significantly aggravated by the incident. However, Dr. Mallenbaum performed no psychological testing of plaintiff. It is Dr. Mallenbaum's opinion that plaintiff has reached maximum medical improvement. It is also Dr. Mallenbaum's opinion that as a result of the combination of PTSD and major depression plaintiff is permanently and totally disabled from competitive employment and will require medical and psychological care and prescription medicines in the future. Dr. Mallenbaum stated that the incident at work was a substantial contributing factor in the development of plaintiff's post-traumatic stress disorder (PTSD) and major depression. Dr. Lee, who was not deposed, also diagnosed plaintiff with PTSD and recurring major depression.

20. When asked in his deposition whether plaintiff was more at risk for developing these psychological conditions than other members of the public, Dr. Mallenbaum responded: "If she had some preexisting condition — which truthfully I'm not aware of, aside from the bouts of depression — but if she had some, then, certainly she would be more vulnerable."

21. Dr. Thomas Gualtieri, a neuropsychiatrist in Chapel Hill, saw plaintiff for an independent medical examination at the request of defendant on August 10, 1994. Dr. Gualtieri gave plaintiff a general physical examination, a neurological examination and a mental status examination. In Dr. Gualtieri's opinion, plaintiff's presentation was inconsistent. Plaintiff was unable to complete the forms and questionnaires routinely given to patients, had attentional and memory lapses and could remember only one of three simple words five minutes after being told the words, and was an extremely poor historian. However, plaintiff's manner and speech changed dramatically when asked by Dr. Gualtieri to describe the events related to the incident of March 25, 1994. Plaintiff's memory of this incident was remarkably intact and she described the incident in detail to Dr. Gualtieri.

22. According to Dr. Gualtieri, plaintiff does not have post-traumatic stress disorder because plaintiff experienced no credible event that was life-threatening or credibly traumatic, because plaintiff did not present typical symptoms of PTSD, and did not present in the manner that individuals with PTSD normally present. Dr. Gualtieri did not believe that the event plaintiff described as occurring at work on March 25, 1994 was the kind of severe traumatic event that gives rise to PTSD.

23. Dr. Gualtieri gave plaintiff a differential diagnosis which includes several different conditions that may have produced plaintiff's clinical picture. He described these diagnoses as "somatoform disorder or malingering or something in between which is called compensation neurosis." Dr. Gualtieri added that there was also the possibility of chronic mental illness, a personality disorder or chronic anxiety disorder. He did not believe that any of the diffential diagnoses could have been caused by the event with plaintiff's supervisor.

24. After reviewing the medical records, the testimony of witnesses and the depositions of the medical experts, the Commission gives greater weight to the testimony and opinions of Dr. Gualtieri than to Dr. Bryant, a family physician, and Dr. Mallenbaum, a psychologist. Dr. Gualtieri is a neuropsychiatrist whose area of specialization includes treatment of patients with post-traumatic psychiatric conditions and who took a medical history, performed a general and neurological examination, and conducted psychological testing of plaintiff.

25. Prior to and after the incident of March 25, 1994, plaintiff experienced a number of life stressors. In 1989 she received counseling due to marital problems and was diagnosed with an adjustment disorder. Plaintiff was hospitalized for five days in 1989 due to depression. Plaintiff had an extensive history of being tardy for work and was reprimanded on several occasions for her tardiness, as well as for an altercation at work with another employee and for poor work performance. Plaintiff's daughter was injured in a knife fight. Plaintiff's father was ill and in the hospital for approximately five years and died in August of 1993. Plaintiff's house and belongings were destroyed in a fire in January of 1994. Plaintiff's car was vandalized and she did not receive payment for the damage because the vehicle was uninsured. Plaintiff's son was shot. Plaintiff was involved in two car accidents and she filed a lawsuit arising out of the car accident of December 15, 1995.

26. The Commission finds that the greater weight of the competent, credible evidence of record shows that the events of March 25, 1994, did not cause or aggravate plaintiff's psychological problems. The evidence showed that plaintiff initiated the meeting with Mr. Fuller and that a dispute over a requested vacation day occurred, during which both plaintiff and Mr. Fuller raised their voices in an angry manner and Mr. Fuller angrily gestured toward plaintiff with his hands. Disagreements between an employee and a supervisor are not uncommon in employment situations, although the type of angry confrontation which occurred in this case may happen infrequently. The confrontation between plaintiff and her supervisor did not constitute an injury by accident in that it was not an unexpected, unusual or untoward occurrence or an interruption of the work routine and the introduction thereby of unusual conditions likely to result in unexpected consequences.

27. Based upon the greater weight of the evidence of record the Full Commission finds that plaintiff did not develop an occupational disease which was due to causes and conditions characteristic of and peculiar to her employment with defendant and which excluded all ordinary diseases of life to which the general public was equally exposed.

*********** In accordance with the directives of the North Carolina Court of Appeals, and based upon the findings of fact, the Full Commission concludes as follows:

CONCLUSIONS OF LAW 1. Plaintiff did not sustain an injury by accident arising out of and in the course of her employment with defendant-employer as defined by the North Carolina Workers' Compensation Act. N.C. Gen. Stat. § 97-2(6);Pitillo v. N.C. Dep't of Envtl. Health Natural Res., 151 N.C. App. 641,566 S.E.2d 807 (2002); Jordan v. Central Piedmont Community College,124 N.C. App. 112, 476 S.E.2d 410 (1996), disc. rev. denied, 345 N.C. 753,485 S.E.2d 53 (1997).

2. Compensation under the Workers' Compensation Act may be awarded for an occupational disease pursuant to N.C. Gen. Stat. § 97-53(13) if two conditions are met: (1) it must be "proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment"; and (2) it cannot be an "ordinary disease of life to which the general public is equally exposed outside of the employment." Booker v. Medical Center, 297 N.C. 458, 468;256 S.E.2d 189, 196 (1979). The claimant bears the burden of proving the existence of an occupational disease. Gay v. J.P. Stevens Co.,79 N.C. App. 324, 331, 339 S.E.2d 490, 494 (1986).

3. In the case at bar, plaintiff failed to prove that her psychological conditions are due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, that she was at an increased risk of developing these conditions due to her work, or that her condition was caused by the work. Woody v. ThomasvilleUpholstery, Inc., 355 N.C. 483, 562 S.E.2d 422 (2002) (per curiam) (adopting the dissent in Woody v. Thomasville Upholstery, Inc.,146 N.C. App. 187, 201-02, 552 S.E.2d 202, 211-212 (2001); Hansel v.Sherman Textiles, 304 N.C. 44, 283 S.E.2d 101 (1981). Therefore, plaintiff did not contract a compensable occupational disease as a result of her employment with defendant. N.C. Gen. Stat. § 97-53(13).

4. Plaintiff is not entitled to workers' compensation benefits under the Workers' Compensation Act. N.C. Gen. Stat. §§ 97-2(6); 97-53(13).

*********** Therefore, in accordance with the directives of the North Carolina Court of Appeals, and based upon the foregoing findings of fact and conclusions of law, the Full Commission enters the following:

ORDER 1. Plaintiff's claims under the law must be, and are hereby, DENIED.

2. Each side shall pay its own costs.

This the 8TH day of March 2005.

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

CONCURRING:

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

DISSENTING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

Dissenting Opinion

Though the majority is correct in concluding that plaintiff failed to prove that she contracted a compensable occupational disease, the undersigned believes the majority erred in failing to conclude in the alternative that plaintiff's psychological conditions are attributable to an injury by accident. In order to prove an injury by accident pursuant to N.C. Gen. Stat. § 97-2(6), all that is required to be shown is an unusual or unexpected occurrence in the course and scope of employment resulting in injury. Toler v. Black Decker, 134 N.C. App. 635,518 S.E.2d 547, 551 (1999); Jordan v. Central Piedmont CommunityCollege, 124 N.C. App. 112, 476 S.E.2d 410 (1996); Hinsley v.Cooperative, 246 N.C. 274, 278, 98 S.E.2d 289, 292 (1957); Cody v. SniderLumber Co., 96 N.C. App. 293, 385 S.E.2d 515 (1989) (rev'd on othergrounds, 328 N.C. 67, 399 S.E.2d 104 (1991); and Davis v. Raleigh RentalCenter, 58 N.C. App. 113, 292 S.E.2d 763 (1982).

Dr. Mallenbaum, plaintiff's treating psychologist, opined that plaintiff suffered a psychological trauma after the work-related incident with her supervisor on March 25, 1994, and her symptoms were caused or significantly aggravated by the incident. Dr. Mallenbaum further opined that the incident at work was a substantial contributing factor in the development of plaintiff's post-traumatic stress disorder. Thus, the evidence or record supports a finding that plaintiff suffered a psychological injury by accident when faced with the unexpected and sudden work-related confrontation with her supervisor on March 25, 1994. N.C. Gen. Stat. § 97-2(6); and Jordan v. Central Piedmont Community College,124 N.C. App. 112, 476 S.E.2d 410 (1996) rev, denied, 345 N.C. 753,485 S.E.2d 53 (1977). Further, the events of March 25, 1994, precipitated, triggered and/or caused plaintiff's present condition.Brewington v. Rigsbee Auto Parts, 69 N.C. App. 168, 316 S.E.2d 336 (1984).

The courts have held that work-related assaults and fights are deemed to "arise out of and in the course of employment" when the disagreement arises out of the work in which employees are engaged. Withers v. Black,230 N.C. 428, 53 S.E.2d 668 (1949); and Gallimore v. Marilyn's Shoes,292 N.C. 399, 233 S.E.2d 529 (1977). Thus, a psychological trauma resulting from an assault and battery by a supervisor against an employee is compensable. The term "arising out of" requires an employee to demonstrate a causal connection between the injury complained of and an accident that occurred in the course of employment. Buck v. Procter Gamble Manufacturing Co., 52 N.C. App. 88, 278 S.E.2d 268 (1981). The injury "arises out of' the employment when a causal connection between the conditions under which the work is required to be performed and the resulting injury is apparent to the rational mind upon consideration of all the circumstances. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972).

Finally, there is no requirement that an injury should be foreseen if it resulted from the employment, nor does the employment have to be the sole cause of the injury. Robbins v. Nicholson, 1ON.C. App. 421,179 S.E.2d 183 (1971), rev'd on other grounds, 281 N.C. 234, 188 S.E.2d 350 (1972). The hazards of employment do not have to be the sole cause of a worker's injury in order for the worker to receive compensation for the full extent of his incapacity for work caused by the injury. Rutledge v.Tultex Kings Yarn, 308 N.C. 85, 301 S.E.2d. 359 (1983). Thus, despite evidence of additional stressors in plaintiff's life, it is clear from the evidence of record that plaintiff's work-related incident with her supervisor on March 25, 1994, was the triggering event that caused her post traumatic stress disorder and acute psychological conditions.

Where an on-the-job accident and ensuing depression have caused depression or other emotional disturbances, or post-traumatic neurosis has caused disability, then total disability benefits may be allowed.Hill v. Hanes Corp., 319 N.C. 167, 353 S.E.2d 392 (1987); Davis v.Edgecombe Metals Co., 63 N.C. App. 48, 303 S.E.2d 612 (1983); and Faynev. Fieldcrest Mills, Inc., 54 N.C. App. 144, 282 S.E.2d 539 (1981),cert. denied, 304 N.C. 725, 288 S.E.2d 380 (1982). The evidence of record supports a finding that plaintiff is permanently and totally disabled due to the work-related incident with her supervisor on March 25, 1994. Thus, the undersigned believes the majority erred in failing to conclude that such incident constitutes an injury by accident pursuant to N.C. Gen. Stat. § 97-2(6). For these reasons, I respectfully dissent.

This 24th day of March 2005.

S/_____________ THOMAS J. BOLCH COMMISSIONER