Gardner v. Van Buren Public Schools

• Decision Date: 07 December 1992
• Docket Number: Docket No. 134246
• Citation: 494 N.W.2d 845,197 Mich.App. 265
• Parties: , 80 Ed. Law Rep. 232 Anthony GARDNER, Plaintiff-Appellee, v. VAN BUREN PUBLIC SCHOOLS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 845

494 N.W.2d 845

197 Mich.App. 265, 80 Ed. Law Rep. 232

Anthony GARDNER, Plaintiff-Appellee, v. VAN BUREN PUBLIC SCHOOLS, Defendant-Appellant.

Docket No. 134246.

Court of Appeals of Michigan.

Submitted May 20, 1992, at Lansing.

Decided Dec. 7, 1992, at 9:55 a.m.

Released for Publication Feb. 17, 1993.

Sachs, Kadushin, O'Hare, Helveston & Waldman, P.C. by Granner S. Ries, Detroit, for plaintiff-appellee.

Lacey & Jones by Susan B. Cope, Birmingham, for defendant-appellant.

Before DOCTOROFF, C.J., and JANSEN and CORRIGAN, JJ.

DOCTOROFF, Chief Judge.

The Workers' Compensation Appeal Board ordered an open award of benefits for plaintiff after finding that he was mentally disabled, that he received personal injuries in the course of his employment, and that his employment significantly aggravated his mental condition . We find error requiring reversal in the WCAB's reasoning pertaining to plaintiff's personal injuries and their causation.

Plaintiff worked as a custodian for defendant from February 1978 until June 4, 1984. He worked at a high school from 1978 until the summer of 1981. He then worked at the South Junior High School until December of 1983. During the summer of 1983, plaintiff worked at the North Junior High School, but he returned to the South Junior High School in September 1983 and continued to work there until his last day of work in June 1984. The evidence was almost overwhelming that plaintiff was an unpleasant, and probably threatening, person, as well as a poor employee. Plaintiff had at least four supervisors, and they all complained about plaintiff's work performance. Fellow employees complained about plaintiff's conduct. The WCAB found plaintiff was a "poor employee" and recognized that the testimony indicated that plaintiff was "a volatile, profane person who was a poor employee."

Plaintiff's petition alleged constant harassment leading to a psychiatric disability. He alleged numerous events or incidents in support of his claim. These included plaintiff's fellow employees being jealous of his expensive home, supervisors and other employees making false accusations about plaintiff threatening people, plaintiff at times being given conflicting instructions by his supervisor and the school principal at the South Junior High School between the summers of 1981 and 1983, and the head supervisor offering employees paid days off in exchange for helping to get rid of plaintiff. Many of plaintiff's specific claims of harassment were flatly denied by those involved; other claims were explained as something less than what plaintiff perceived. The WCAB did not find that plaintiff was harassed and it did not make specific findings (one way or the other) regarding most of plaintiff's allegations. The allegations of harassment and of an "elaborate" plot or scheme to fire him that he repeatedly mentions in his brief were never substantiated by the WCAB.

Rather, the WCAB found two "occasions" involving "incidents" that significantly affected plaintiff's psychiatric disability. The WCAB found plaintiff was injured by "the fact that plaintiff was required to be subjected to a grievance hearing in regard to excess work and the fact that plaintiff was checked up on by his superiors." With regard to the grievance hearing, which occurred in the winter of 1983, the WCAB found that it was held at plaintiff's request and that it resulted in a reduction in plaintiff's assigned duties. The "excess" work involved was due to increased work loads assigned to all employees as the result of layoffs.

With regard to "checking up on" plaintiff, the WCAB found the head supervisor, Ed Randolph, requested plaintiff's supervisor during the summer of 1983, Hattie Owens, to find plaintiff's license plate number, that Owens requested another employee, Dan Daily, to help her, and that Randolph promised to "take care of" Owens if she helped Randolph. Randolph testified that he wanted to check whether plaintiff was working another job because of rumors Randolph had heard and because plaintiff had accumulated numerous unexplained absences. Randolph further testified that by "taking care of" Owens he had in mind letting her arrive late or leave early when she needed to. But Daily testified that he told plaintiff that he had been asked to "keep an eye on" plaintiff and that he had been offered paid time off if he could get plaintiff's license plate number. The "investigation " apparently never occurred once Daily informed plaintiff of what Owens had asked.

The WCAB additionally found that plaintiff received an injury when he was "checked up on" in the form of Randolph ordering plaintiff's first supervisor at South Junior High School to keep a record of plaintiff's work performance. There is no evidence in the record that plaintiff was aware of this order, and plaintiff never mentioned it at trial or to either of the doctors that testified.

On the basis of the testimony of psychiatrist Richard Feldstein, the WCAB found that these injuries significantly aggravated plaintiff's mental condition. Dr. Feldstein opined that there was a significant causal relationship between the stresses plaintiff experienced at work and plaintiff's mental disability. The doctor's opinion was given in answer to a hypothetical question in which the doctor was asked to assume the accuracy of the history plaintiff had previously given the doctor and to assume, among other things, that one of plaintiff's supervisors was "resentful of" plaintiff and gave plaintiff "additional work loads beyond that which was the norm." No specific mention was made in the hypothetical of the incident involving Dan Daily and plaintiff's license plate number, but plaintiff did mention the incident as one of several examples of harassment when he gave Dr. Feldstein a history. The excess work load incident was not mentioned by plaintiff in the history he gave to Dr. Feldstein. Dr. Feldstein believed plaintiff's claims of what happened at work were all true, and the doctor said that plaintiff had described suffering "abuse" at work.

The issues for the WCAB in this case were whether plaintiff suffered a personal injury in the nature of an actual, precipitating, work-related trauma or event and whether such injury contributed to, aggravated, or accelerated his mental disability in a significant manner. M.C.L. Sec. 418.301(1), (2); M.S.A. Sec. 17.237(301)(1), (2), M.C.L. Sec. 418.401(2)(b); M.S.A. Sec. 17.237(401)(2)(b), Iloyan v. General Motors Corp., 187 Mich.App. 595, 600, 468 N.W.2d 302 (1991). Defendant conceded that plaintiff was disabled. The issues of personal injury and causation were both issues of fact for the WCAB. Dressler v. Grand Rapids Die Casting Corp., 402 Mich. 243, 250, 262 N.W.2d 629 (1978); Harris v. Checker Cab Mfg. Corp., 333 Mich. 66, 52 N.W.2d 599 (1952); Lizut v. Peerless Novelty Co, 74 Mich.App. 199, 255 N.W.2d 637 (1977). Factual determinations of the WCAB are conclusive, absent fraud, if supported by any competent evidence in the record. M.C.L. Sec. 418.861; M.S.A. Sec. 17.237(861), Aquilina v. General Motors Corp., 403 Mich. 206, 213, 267 N.W.2d 923 (1978). Bearing in mind our lack of fact-finding authority, we nevertheless find error requiring reversal in the standard used by the WCAB in finding that plaintiff suffered personal injuries and in the WCAB's finding regarding causation.

An objective analysis is used to determine whether a personal injury (usually in the form of a precipitating work-related event in mental disability cases) significantly affected an employee's mental condition. Boyle v. Detroit Bd. of Ed., 197 Mich.App. ---, 494 N.W.2d 818 (1992); Sobh v. Frederick & Herrud, Inc., 189 Mich.App. 24, 28, 472 N.W.2d 8 (1991). As in Sobh, in this case the WCAB did not indicate why an objective person would find significant the two incidents that the WCAB found satisfied the requirement of a personal injury.

The first incident found by the WCAB involved plaintiff's claim of being given excess work. The claimed excess work load was due to layoffs of employees that required all remaining employees to do more work than before. There was no finding by the WCAB that the work load represented harassment or part of a scheme to fire plaintiff, as plaintiff continues to allege. The grievance hearing occurred at plaintiff's request, and it concluded favorably to plaintiff. It also occurred many months before the last day that plaintiff worked (five or six months to a year or more, the record is not clear) and laid-off employees were being recalled by the time of plaintiff's last day of work. Plaintiff never mentioned to his own examining doctor that he had a problem with an excess work load.

Reduced to its accurate essentials, and as found by the WCAB, plaintiff...