Harvey v. Raleigh Police Dept., 8610IC891

• Decision Date: 05 May 1987
• Docket Number: No. 8610IC891,8610IC891
• Citation: 85 N.C.App. 540,355 S.E.2d 147
• Parties: , 55 USLW 2656 Lynn M. HARVEY, Widow and Administratrix of the Estate of Michael E. Wichmann, Deceased, Employee v. RALEIGH POLICE DEPARTMENT, City of Raleigh, Employer Self-Insured.
• Court: North Carolina Court of Appeals

Page 147

355 S.E.2d 147

85 N.C.App. 540, 55 USLW 2656

Lynn M. HARVEY, Widow and Administratrix of the Estate of Michael E. Wichmann, Deceased, Employee v. RALEIGH POLICE DEPARTMENT, City of Raleigh, Employer Self-Insured.

No. 8610IC891.

Court of Appeals of North Carolina.

May 5, 1987.

Michaels Law Offices, P.A. by Gregory M. Martin, Raleigh, for plaintiff-appellant.

Dawn S. Bryant, Raleigh, for defendant-appellee.

GREENE, Judge.

In February of 1978, the Raleigh Police Department hired Michael Wichmann as a police officer. Four years later, Wichmann committed suicide. His widow instituted this action under the Workers' Compensation Act.

When Wichmann applied for the position of police officer in January of 1978, he took some psychological tests. The tests revealed no signs of anxiety or depression. However, during the last six months of his life, Wichmann suffered from anxiety, impotence, fatigue, and indigestion and often had violent outbursts of anger. The outbursts occurred right after he would arrive home after his shift at the department. Several times after 1978, he threatened suicide--sometimes over what would seem to be a small problem arising out of his work.

At the initial hearing before the Deputy Commissioner, Dr. Bruce L. Danto testified for the plaintiff. He was tendered as an expert in psychiatry, suicidology and police stress. Dr. Danto indicated he had never seen or spoken with Wichmann but had performed a "psychological autopsy" on the decedent. A psychological autopsy involves interviewing family members and reviewing records--generally employment records, school records and psychiatric notes. Its purpose is to determine the probable cause of death or the person's state of mind at the time of the death. Dr Danto testified he had conducted hundreds of psychological autopsies during his practice.

Dr. Danto was of the opinion that Wichmann suffered from a dysthymic disorder (depression), that his employment significantly contributed to the disorder and that the disorder was the direct cause of his suicide. Dr. Danto also testified to the amount and type of stress police officers are exposed to compared to the general public.

Dr. John McCall was tendered as an expert in psychology and testified for the employer. Dr. McCall was of the opinion that it is not possible to positively diagnose a mental illness not diagnosed prior to a person's death. He also expressed his opinion that the stress to which law enforcement officers are exposed is not significantly different from the stress to which other professional persons are exposed. Dr. McCall indicated there were many stressors in Wichmann's life, including some not related to his employment. He did not know which one caused Wichmann to commit suicide.

The Deputy Commissioner found for plaintiff and awarded her compensation, attorney's fees, burial expenses, Dr. Danto's witness fee and the costs of Danto's deposition. Defendant appealed to the Full Commission.

On review, the Commission vacated the Deputy Commissioner's award, denied plaintiff's claim and taxed the costs of Dr. Danto's deposition to the defendant. Plaintiff appeals from the denial of her claim.

This Court's review is limited to whether there was competent evidence before the Commission to support its findings of fact, whether the findings justify the Commission's conclusions and whether the conclusions support the Commission's decision. Henry v. A.C. Lawrence Leather Co., 231 N.C. 477, 479, 57 S.E.2d 760, 762 (1950). The issues before us concern the Commission's conclusions, the competency of Dr. Danto's testimony and whether the Commission erred in ordering the defendant-employer to pay the costs of Dr. Danto's deposition. The Commission's conclusions will be addressed in the first three sections. The pertinent conclusion is set out in italics at the beginning of each section.

I

1. The employee's death was not due to a compensable disease within the meaning of G.S. 97-53(13).

This conclusion is not supported by the findings of fact for two reasons. First, the Commission failed to determine whether Wichmann had a dysthymic disorder.

The Industrial Commission is required to make specific findings with respect to crucial facts upon which the question of plaintiff's right to compensation depends. Gaines v. L.D. Swain & Son, Inc., 33 N.C. App. 575, 579, 235 S.E.2d 856, 859 (1977), citing Smith v. Construction Co., 27 N.C.App. 286, 218 S.E.2d 717 (1975).

Plaintiff's claim is based on her allegation that her husband's suicide was the result of a dysthymic disorder caused by his employment. Thus, whether Wichmann suffered from a dysthymic disorder is a crucial fact.

On this question, the Commission only found:

The deceased employee never sought medical attention or professional care for any dysthymic disorder or depressive reaction or depression while he was alive and was never diagnosed while living by any medical professional as being depressed.

The Commission's finding merely recites evidence presented at the hearing. Whether Wichmann sought medical attention or was diagnosed before his death does not answer the issue of whether Wichmann suffered from a dysthymic disorder. Therefore, the Commission failed to determine a crucial fact.

Second, there are no findings adequate to support a conclusion that if Wichmann had a dysthymic disorder, it was not an occupational disease.

An occupational disease can be:

Any disease ... which is proved 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.G.S. Sec. 97-53(13) (Nov. 1985).

Three conditions must be met for a disease to be occupational under Section 97-53(13). The disease must be:

"(1) characteristic of persons engaged in the particular trade or occupation in which the claimant is engaged; (2) not an ordinary disease of life to which the public generally is equally exposed with those engaged in that particular trade or occupation; and (3) there must be "a causal connection between the disease and the [employee's] employment."

Rutledge v. Tultex Corp., 308 N.C. 85, 93, 301 S.E.2d 359, 365 (1983) (citations omitted). The first two 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." Id. at 93-94, 301 S.E.2d at 365. The third is satisfied if the employment "significantly contributed to, or was a significant causal factor in, the disease's development. This is so even if other non-work-related factors also make significant contributions, or were significant causal factors." Id. at 101, 301 S.E.2d at 369-70.

Evidence before the Commission was that stress, or stressors, caused dysthymic disorders. The Commission found that "[m]any occupations expose one to stressors, including the occupation of a law enforcement officer.... Stressors are not unique to the occupation of a law enforcement officer." Defendant interprets this finding to mean that dysthymic disorders are not unique to law enforcement employment. Then, from this interpretation, defendant argues the Commission found dysthymic disorders are not characteristic of police work but an ordinary disease of life to which the public is equally exposed outside of police work. Even if we were to accept defendant's interpretation of the finding, it does not support the conclusion that Wichmann's death was not due to a compensable occupational disease.

A disease need not be unique to the employee's occupation in order to qualify as an occupational disease. See Booker v. Duke Medical Center, 297 N.C. 458, 474, 256 S.E.2d 189, 199 (1979). The Commission only found that stressors are not unique to police work. It did not find that Wichmann's employment did not expose him to a greater risk of developing a dysthymic disorder than the public generally. Therefore, the Commission failed to find the absence of the first two elements set forth in Rutledge.

Neither did the Commission find that Wichmann's occupation was not a significant causal factor in the development of his alleged dysthymic disorder. Therefore, the Commission failed to find the absence of the third element set out in Rutledge.

Since the Commission failed to find the absence of any of the three elements required under Rutledge, its first conclusion is not supported by the findings of fact.

II

2. The cause of the employee's suicide was not his occupation.

The Commission erred in concluding Wichmann's suicide was not caused by his occupation because the Commission failed to properly address the issues of causation.

There are two issues of causation in this case: 1) whether Wichmann's employment caused the dysthymic disorder and 2) whether the dysthymic disorder was the cause of his suicide. The Commission must determine each issue of causation. The first issue of causation is part of the determination of whether the employee's disease is an occupational disease. It is discussed above in section I. The second issue of causation, if reached, may require a determination of whether the employee willfully intended to kill or injure himself, was intoxicated or was under the influence of a controlled substance. If the employer produces evidence to that effect, a determination of these questions is required. The second issue of causation is discussed below in section III. The Commission's second conclusion answers neither of the two issues of causation. Thus, the conclusion cannot support the Commission's decision.

III

3. The deceased came to his death by reason of his willful intention to injure or kill himself.

N.C.G.S. Sec. 97-12 states in pertinent part:

No compensation shall be payable if the injury or death to the employee was proximately caused by:

(1) His intoxication, provided the intoxicant was not supplied...