Case of Kelly

• Decision Date: 14 June 1984
• Parties: Helen J. KELLY'S CASE.
• Court: Appeals Court of Massachusetts

Page 348

462 N.E.2d 348

17 Mass.App.Ct. 727

Helen J. KELLY'S CASE.

Appeals Court of Massachusetts Suffolk.

Argued Feb. 10, 1984.

Decided April 11, 1984.

Further Appellate Review Granted June 14, 1984.

Andrew P. Saltis, Boston, for insurer.

Robert E. Keane, Cambridge, for employee.

Before GREANEY, C.J., GRANT and WARNER, JJ.

GREANEY, Chief Justice.

This is the insurer's appeal from a judgment for the employee entered in the Superior Court under the workers' compensation act, G.L. c. 152. The judgment reversed the decision of the reviewing board, which had affirmed the decision of a single member denying the employee compensation. The sole issue upon appeal is whether the employee sustained a compensable personal injury arising out of and in the course of her employment when, in August 1977, she suffered an emotional breakdown after being informed by her employer that she had been laid off from her current department and that she would be transferred to another department. We affirm the judgment.

We summarize the facts found by the single member and adopted by the reviewing board. ¹ The employee, Helen J. Kelly, was employed by her employer for twenty-two years prior to August of 1977. At the time of the incidents she worked as an associate training specialist and was totally responsible for the running of the employer's training center. Kelly was happily married, had two grown children, and got along extremely well with her supervisor. Her monthly gross pay, as of August, 1977, was $1,301.

On Friday, August 19, 1977, Kelly's supervisor called her aside to an isolated area in the plant and informed her that the company was cutting back in her department and that she would be laid off. Kelly began to cry and went home early on that date, being unable to compose herself and continue work. Kelly remained upset and cried most of the weekend. On Monday, August 22, 1977, she returned to work and was told she could work as a foreperson in the cable department. Kelly was not pleased to be assigned to that department, and on that date became depressed, developed chest pains, was put in a wheel chair, and was taken to a hospital. She was examined and subsequently put on medication (darvocet and valium). Kelly remained out of work for over six weeks.

On October 5, 1977, Kelly returned to work in the cable department. However, on October 14 she again developed severe chest pains and was taken to the hospital. She thereafter underwent regular psychiatric treatment, lost fifteen pounds, began to have trouble eating and sleeping, and suffered from depression. The single member also found, based upon the testimony of the psychiatrist who had treated her for depression, that Kelly has been totally disabled and unable to work since August 22 1977, and that her psychiatric problems were "caused by her hearing that she was to be laid off from one department and transferred to another."

The single member decided that Kelly had suffered no industrial injury on either August 22, 1977, or October 14, 1977. ² The reviewing board affirmed this decision. In setting aside the board's decision and ordering the payment of temporary total incapacity compensation benefits under § 34 of the act, the judge in the Superior Court expressly relied upon Albanese's Case, 378 Mass. 14, 389 N.E.2d 83 (1979). ³

Our workers' compensation act offers very broad protection to employees. See Zerofski's Case, 385 Mass. 590, 592-593, 433 N.E.2d 869 (1982). It has been consistently held that the act should be liberally construed and interpreted wherever possible in favor of the injured employee. Young v. Duncan, 218 Mass. 346, 349, 106 N.E. 1 (1914). See Locke, Workmen's Compensation § 29 (2d ed. 1981). Unlike the compensation acts of many other States, our act does not contain a requirement that an injury occur "by accident," see Zerofski's Case, 385 Mass. at 592, 433 N.E.2d 869, and the term "[p]ersonal injury has been broadly defined to include 'whatever lesion or change in any part of the system produces harm or pain or a lessened facility of the natural use of any bodily activity or capability.' " Fitzgibbons's Case, 374 Mass. 633, 637, 373 N.E.2d 1174 (1978), quoting from Burns's Case, 218 Mass. 8, 12, 105 N.E. 601 (1914). Entitlement to compensation does not depend on the fault of the employer or upon the foreseeability of harm. Madden's Case, 222 Mass. 487, 496, 111 N.E. 379 (1916). It is settled that the employer must take the worker "as is" with existing disabilities and propensities to injury, see Madden's Case, supra; Zerofski's Case, 385 Mass. at 593, 433 N.E.2d 869; Locke, Workmen's Compensation, at § 173, and without regard to whether a reasonable person would have suffered the injury.

With these principles in mind, we turn to this case. The insurer does not dispute that Kelly became disabled directly as a result of a mental or emotional disorder. It argues, however, that Kelly's mental disorder is not within the coverage of the act. In support of this contention, the insurer presents two theories which, in essence, attempt to distinguish the Albanese and Fitzgibbons cases from this case. We are not persuaded by either theory.

The insurer argues first that Kelly's emotional disturbance is not a compensable "personal injury" under c. 152, citing Maggelet's Case, 228 Mass. 57, 116 N.E. 972 (1917), and Begin's Case, 354 Mass. 594, 238 N.E.2d 864 (1968). However, as explained in Fitzgibbons's Case (374 Mass. at 638, 373 N.E.2d 1174), those two decisions "have come to stand for the doctrine of wear and tear." Under this doctrine, the "gradual breaking down or degeneration of tissues caused by long and laborious work is not the result of a personal injury within the meaning of the act." Maggelet's Case, 228 Mass. at 61, 116 N.E. 972. See generally Zerofski's Case, 385 Mass. at 590, 433 N.E.2d 869. While in some cases "[t]he line between compensable injury and mere 'wear and tear' is a delicate one", id. at 594, 433 N.E.2d 869, the Supreme Judicial Court has explicitly recognized that a mental injury arising from either a specific stressful work-related incident or a series of such incidents does not fall within the "wear and tear" doctrine and, therefore, is compensable. See Fitzgibbons's Case, supra 374 Mass. at 638, 373 N.E.2d 1174; Zerofski's Case, supra 385 Mass. at 594-595, 433 N.E.2d 869. The board's findings expressly state that Kelly's psychiatric disorder "was caused by her hearing that she was to be laid off from one department and transferred to another." Thus, her incapacity is directly related to two specific and stressful work-related incidents coming three days apart and not to general tension or stress of the job occurring over a period of months or years. These differences take the case out of the "wear and tear" doctrine.

The insurer's remaining argument relies on Korsun's Case, 354 Mass. 124, 128, 235 N.E.2d 814 (1968), for the proposition that an employee's apprehension over the prospect of being laid off or transferred does not arise "out of the nature, conditions, obligations or incidents of employment." As the court noted in Fitzgibbons's Case, supra 374 Mass. at 639, 373 N.E.2d 1174, "there was a lack of evidence [in Korsun's Case ] with which to connect the alleged precipitating event to Korsun's employment." There is no such failure to prove causation in the present case. ⁴ And as further noted in Zerofski's Case, 385 Mass. at 594, 433 N.E.2d 869, the language in Korsun's Case (354 Mass. at 128, 235 N.E.2d 814) concerning apprehension about losing one's job refers to injuries caused by the general stress of work which are rendered noncompensable by the "wear and tear" doctrine. We consider Korsun's Case to have been limited by later opinions and to be inapplicable to the facts here.

We have given consideration to other theories which might preclude liability. The reference in Albanese's Case (378 Mass. at 18, 389 N.E.2d 83) to mental injuries involving "everyday stress" being noncompensable must be taken, when read in the context of the discussion which precedes it, and in connection with the discussion and cases cited in note 4, supra, as a reference to whether compensation should be paid for gradually developing mental injuries. ⁵ Indeed, it is this category of cases (designated "gradual stimulus" cases by Professor Larson, see 1B Larson, Workmen's Compensation Law § 42.23[b] at 7-637--7-640) which has caused courts elsewhere the most difficulty, principally because of the potential for fraudulent claims. ⁶ It is clear, however, that the "gradual stimulus" cases are inapposite to the facts before us, for the reasons made apparent in the Fitzgibbons and Albanese cases. We have also examined the law elsewhere and have not found it to be helpful. ⁷ Nor are we persuaded by the notion that compensation should be denied because mental injuries are more difficult to substantiate, and therefore more prone to fabrication. ⁸ See discussion in Cohen, Workmen's Compensation Awards for Psychoneurotic Reactions, 70 Yale L.J. 1129, 1137 (1961). "In the last analysis, the problem of malingering is one of fact, which must be left to the skill and experience of medical and psychiatric experts, and of compensation administrators, who usually manage in time to develop considerable facility in detecting malingerers at the factfinding level." Larson, Mental and Nervous Injury in Workmen's Compensation, 23 Vand.L.Rev. 1243, 1259 (1970). We conclude that the facts in this case are governed by the Albanese and Fitzgibbons cases, which permit compensation for mental injuries caused by "identifiable stressful work- related incidents" (378 Mass. at 18, 389 N.E.2d 83), occurring in employment looked at "in any of its aspects" (374 Mass. at 638, 373 N.E.2d 1174).

We must, however, say that we find the result troubling and one which may involve a larger extension of liability than the last cited cases contemplated. In this...