Jones v. D.C. Dept. of Employment Services

• Decision Date: 14 January 1987
• Docket Number: No. 84-1675.,84-1675.
• Citation: 519 A.2d 704
• Parties: Marjorie P. JONES, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Potomac Electric Power Company, Intervenor.
• Court: D.C. Court of Appeals

519 A.2d 704

Marjorie P. JONES, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Potomac Electric Power Company, Intervenor.

No. 84-1675.

District of Columbia Court of Appeals.

Argued December 18, 1985.

Decided January 14, 1987.

Robin D. Kardon, Washington, D.C., for petitioner.

Edward E. Schwab, Asst. Corp. Counsel, with whom Inez Smith Reid, Corp. Counsel at the time the briefs were filed, John H. Suda, Principal Deputy Corp. Counsel at the time the briefs were filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on brief, for respondent.

John J. Sullivan, Washington, D.C., for intervenor.

Before NEBEKER, FERREN and TERRY, Associate Judges.

FERREN, Associate Judge:

Petitioner's husband, William H. Jones, died on the fourth day of a five-day suspension from work, the day before he was to attend a hearing to determine whether he would be fired after 35 years of employment as a heavy equipment operator with intervenor, Potomac Electric Power Company (PEPCO). A hearing examiner concluded that the emotional stress resulting from the suspension and potential discharge had caused Mr. Jones' fatal heart attack and, accordingly, awarded death benefits. Upon review, however, the Director of the Department of Employment Services (DOES) concluded that Mr. Jones' death was not an "accidental injury" because disciplinary actions are not unusual events giving rise to employer liability. We conclude, to the contrary, that the Director's construction of "accidental injury" contradicts our ruling in Washington Metropolitan Area Transit Authority v. District of Columbia Department of Employment Services, 506 A.2d 1127, 1128, 1129 (D.C. 1986) (per curiam) (WMATA). We therefore must reverse and remand.

I.

On December 8, 1982, petitioner, Marjorie P. Jones, came home from work to find her 58-year-old husband lying in their marital bed, dead. A week earlier, on November 30, 1982, Mr. Jones' supervisor had seen Jones holding a wet paper bag containing a bottle that smelled of whiskey. Jones had refused to submit a blood or urine sample to test for alcohol content. He therefore had been suspended for the rest of the day but had returned on December 1 and worked the full day.

When Jones arrived at work on December 2, he was summoned to attend a "hearing" with PEPCO and union officials. At that time, no testimony was presented; PEPCO officials simply told Jones of the charges against him and informed him that a chemical analysis of the contents of the bottle had revealed it contained 80 proof alcohol. PEPCO presented him with a pink slip suspending him for five days.¹ Jones was further informed of his rights under the union contract, including the right to a hearing at which he could present his case. Supra note 1. A hearing date was set for December 9, the last day of the five day suspension. Jones then went home.

The hearing examiner credited Mrs. Jones' testimony that during the next five days, December 3-7, her husband's behavior changed dramatically. He went upstairs to bed and stayed there. He neither ate nor bathed. When he did eat some toast on the third day, he vomited. He was withdrawn and irritable. He showed no interest in, and was short tempered with, his wife and family. This was drastically different from his normal family life.

On December 8, the day before his scheduled hearing, Mr. Jones got up in the morning for the first time since he had been suspended and saw his wife off to work. Apparently he went back to bed, because when Mrs. Jones went home after a frantic call from her daughter, she found her husband there, dead. The death certificate indicated the cause of death was "occlusive coronary arteriosclerosis," although no autopsy was performed.

At the hearing on the application for death benefits, Mrs. Jones and PEPCO each presented two experts through live or deposition testimony. For petitioner, Drs. Richard Schwartz and Jack Segal testified that during his suspension Mr. Jones had been under acute emotional stress, anxiety, and depression from the continuous and immediate threat of losing his job. Such stress causes an unusual buildup of adrenaline and epinephrine, which stimulates heart rate and irregular heart beats and precipitates sudden cardiac arrest. Consequently, these doctors concluded that the emotional stress from the threat of losing his job had caused Mr. Jones' death.

To the contrary, Drs. Stewart Seides and John Russo testified for PEPCO that, in their opinions, the events of November 30 and December 2 were not causally related to Jones' death on December 8. They based their opinions in part on Mr. Jones' history of hypertension and arteriosclerosis and on the length of time between the day Jones was suspended and the day of his death.²

II.

The hearing examiner identified the "only issue" as whether Mr. Jones' "death arose out of and in the course of employment." The examiner found petitioner's experts more persuasive and thus found that petitioner had "established a causal relationship between [Mr. Jones'] death and stress caused by the threat of losing his job of 35 years." Accordingly, the examiner concluded that Jones' "death arose out of his employment."

The hearing examiner rejected PEPCO's arguments that, because Mr. Jones' death arose out of an accusation of possessing liquor, it was attributable to an incident outside the course of his employment and, in any event, that the claim should be barred by public policy. The examiner acknowledged that D.C. Code § 36-303(d) (1981) expresses this jurisdiction's policy that injury occasioned solely by intoxication is excluded from coverage, but he found this provision inapplicable because there was "no evidence that [Mr. Jones'] death was caused solely by intoxication. I have found that the medical evidence establishes that [his] death was caused by work-related stress." The hearing examiner recommended awarding petitioner and her dependent children death benefits at the rate of 66 2/3 per cent of Mr. Jones' average weekly wage plus $1,000 for reasonable funeral expenses.

Upon initial review, the Director proposed to adopt the hearing examiner's recommended order. After consideration of PEPCO's exceptions and petitioner's response, however, the Director reversed his position. Citing 1B A. Larson, THE LAW OF WORKMEN'S COMPENSATION § 38.65 (1986), the Director concluded that the issue was not causation, i.e., whether the injury "`arose out of'" and "`in the course of'" employment, but rather whether the injury was an "`accidental injury.'" The Director explained that while emotional stress, resulting from "unexpected or unusual events," "can be readily identified as having arisen by accident," emotional reaction to an event that is "not unexpected or unusual in the workplace" may not be characterized as an accidental injury. The Director observed that "disciplinary actions are events . . . common to most, if not all, work environments" and thus that Mr. Jones' emotional reaction to such an expectable event, resulting in a heart attack, was not an accidental injury. In shifting the focus to the question whether the injury was accidental, however, the Director nonetheless relied on cases from other jurisdictions holding that employee heart attacks which did not result from physical exertion did not arise out of or in the course of employment. Tintera v. Armour & Co., 362 So.2d 1344 (Fla. 1978); In re Korsun's Case, 354 Mass. 124, 235 N.E.2d 814 (1968); Chapman v. Aetna Casualty & Surety Co., 221 Tenn. 376, 426 S.W.2d 760 (1968); City of Austin v. Johnson, 525 S.W.2d 220 (Tex.Civ.App. 1975).³

Finally, the Director asserted — without citation to statutory authority — that public policy should bar recovery for injuries caused by emotional stress attributable to disciplinary actions, in order to: (1) discourage disciplined employees from perceiving an incentive to suffer emotional injury; (2) encourage employers to discipline or discharge undesirable employees; (3) avoid false or frivolous claims; and (4) avoid holding employers liable for emotional injuries resulting from employee misconduct. He cited Miller v. Town of Newburgh, 43 A.D.2d 641, 349 N.Y.S.2d 218 (1973), which apparently concluded that public policy bars compensation where an employee's heart failure was caused by the "employer's legitimate decisions about the conduct of employment." Id. at 643, 349 N.Y.S.2d at 220.

The Director accordingly concluded that Jones' death was "not an accidental work-related injury" and, therefore, denied benefits.

III.

As indicated by the conceptual dispute between the hearing examiner and the Director, there are three elements essential to a compensable workers' compensation claim. The injury must (1) be an "accidental injury" (2) that "arises out of" employment and also (3) arises "in the course of" employment. D.C. Code § 36-301 (12) (1981); WMATA, 506 A.2d at 1128 n. 1; see Grayson v. District of Columbia Department of Employment Services, 516 A.2d 909, 911 n. 2 (D.C. 1986).

The Director's final decision did not address, let alone question, the hearing examiner's rulings on causation and work-relatedness: that Mr. Jones' death arose out of and in the course of employment. Rather, the Director concluded that, because disciplinary actions are not unusual events, resulting emotional injuries with physical manifestations are not accidental injuries.⁴ Apparently, he was relying on Professor Larson's statement that, "[w]hen the causal component in a heart failure . . . is mental, nervous, psychic or emotional rather than physical, the commonest legal question has been whether this could be said to be an [accidental] injury for compensation purposes," absent an "unusual" emotional strain, 1B Larson § 38.65 at 7-215 to 7-216, whereas the question is one of causation, not accidental injury, when a physical stressor at work is alleged to have precipitated a heart attack. E.g....