Swiss Colony, Inc. v. Department of Industry, Labor and Human Relations, 675
| Decision Date | 07 April 1976 |
| Docket Number | No. 675,675 |
| Citation | 240 N.W.2d 128,72 Wis.2d 46 |
| Parties | The SWISS COLONY, INC., and American and Foreign Insurance Company, Appellants, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS and Etha Schillinger, Respondents. (1974). |
| Court | Wisconsin Supreme Court |
Griffin G. Dorschel, Madison (argued), for appellant; Axley, Brynelson, Herrick & Gehl, Madison, on brief.
Gordon Samuelsen, Asst. Atty. Gen. (argued), for Dept. of Industry, Labor & Human Relations; Bronson C. La Follette, Atty. Gen., on brief.
William J. Schmitz, Monroe, for respondent, Etha Schillinger.
The respondent Etha Schillinger received a workmen's compensation award for mental injury arising out of her employment by the appellant, The Swiss Colony, Inc. We affirm that award, which was sustained by the circuit court.
In 1955, Etha Schillinger commenced work for Swiss Colony, a mail-order cheese company located in Monroe, Wisconsin. She became the purchasing agent for this fast-growing company in 1961. This job subjected her to numerous stresses and strains. In the spring of 1971 she began to feel 'rattled' and 'disorganized' and less able to withstand the mounting pressures of her job. In November of 1971 she consulted a physician and on November 7th was admitted to St. Clare Hospital in Monroe, suffering from weight loss, insomnia, exhaustion and depression. After staying in the hospital until November 18th she was released, but then was readmitted on November 29th in a psychotic state diagnosed as schizophrenia. She was again released on January 10, 1972, but did not return to work until October of that year. She then returned to work half time in a position of reduced responsibility and pressure. On January 2, 1973, she began to work full time in this reduced position.
Schillinger applied for workmen's compensation due to mental injury arising out of her employment at the Swiss Colony. Findings were entered that Schillinger became disabled by mental illness caused by the stresses and strains of her employment and that this illness constituted an accidental injury arising out of her employment. Permanent partial disability of 25 percent was also found, and jurisdiction was reserved in the event that Schillinger's condition further worsened. The department affirmed these findings of fact and interlocutory order on April 4, 1974. The circuit court subsequently affirmed the departmental findings and order, and the employer appeals from this judgment.
Two issues are raised on this appeal with respect to the basic workmen's compensation award. They are:
1. Was the claimant subject to stresses and strains which were out of the ordinary from the day-to-day stresses and strains which all employees must experience?
2. If so, did these out-of-the-ordinary stresses cause claimant's mental disability?
There is no question that there is abundant evidence in the record here that the claimant was subject to stresses and strains which were out of the ordinary from the day-to-day stresses and strains which all employees must experience. We held in School District No. 1 v. ILHR Dept. 1 that in order for nontraumatically caused mental injury to be compensable in a workmen's compensation case, the injury must have resulted from a situation of greater dimensions than the day-to-day mental stresses and tensions which all employees must experience. 2
Our review of the record shows that there was ample credible evidence here to support a finding that Schillinger was exposed to work stresses which were out of the ordinary.
(1) Nerve-Racking Nature of the Job.
Schillinger was the purchasing agent for a seasonable business which grew dramatically during the course of her employment. Her responsibility was for buying all packaging materials and food products (except for printing materials and cheese). The company grew from gross mail order sales of about two million dollars in 1961 to thirteen million dollars in 1971. Retail stores were added in the 1960's, and Schillinger did the purchasing for these stores until October, 1970. Although she had up to three employees working for her during this time, this did not diminish the pressures and strains, due to the growth of the business. Because Christmas catalogues were a main source of sales, the mail-order business was concentrated in the latter part of the year, although purchasing and delivery went on year round. Deadlines were standard operating procedure, and problems constantly arose because of machine breakdowns at the suppliers, and trucks losing merchandise. The testimony of Raymond Kubly, Jr., Ruth Gibbons, and Schillinger clearly establishes that Schillinger's job was unusually nerve-racking and subjected her to greater pressures and tensions than those experienced by the average employee.
(2) Critical and Berating Attitude of Immediate Supervisor.
Ted Schneider was hired by Swiss Colony in July, 1970, as Director of Materials. He became the immediate superior of Schillinger, and the person with whom she had to be in close and daily contact. Ruth Gibbons, Schillinger's assistant, testified that Schneider was negative, brusque, and belittling, especially to women, and that he challenged and belittled any decision Schillinger would make. Gibbons also stated that this attitude upset Schillinger and made her unsure of herself. Schillinger testified that Schneider was abrupt and overly critical of her, and that she would make statements she knew were correct and he would contradict them. She stated that this was very frustrating and disheartening. In addition, the treating psychologist, Dr. Barnes, who was by coincidence the friend and next-door neighbor of Schneider, testified that Schneider was 'a very aggressive man, somewhat cold in his dealings with other people, emotionally cold . . . brusque, very challenging, very critical,' and that he may have overutilized and overburdened Schillinger.
In School District No. 1 this court noted that an employee who suffered a mental injury 'after being criticized and berated by an employer or whomever for a significant period of time' 3 should not be denied compensation. This case falls within that category. There is ample credible evidence that Schneider was critical and berating toward Schillinger from at least January 1, 1971, until her breakdown on October 29, 1971, after a final incident of abrupt, brusque criticism by Schneider.
(3) Long Hours and No Vacations in 1971.
Schillinger testified that she was probably working more hours in 1971 than she had in any previous period. Two credible reasons appear of record for these extra burdens. First of all, there was a turnover of employees in the purchasing department in 1971. Schillinger was responsible for training the new employees, and also had to perform the duties they were as yet unable to perform. She also testified that she had to come in after hours in order to correct the errors they had made. The second reason for extra burdens and extra hours was a new purchasing procedure introduced by Schneider in the summer of 1971. This consisted of drafting and utilizing a set of form letters to various suppliers requesting price information on commodities which were to be purchased. Although the ultimate objective of this new system was to economize on time spent on such communications, Schillinger testified credibly that at the outset the new system was more time-consuming than the old one and added to her burdens. Gibbons also testified that Schillinger was laboring under an unusually heavy workload in the summer and fall of 1971. She stated that Schillinger worked more than fifty hours a week, and took work home at night regularly. Even Schneider admitted that Schillinger was working more than forty hours a week, and that she did take work home at night.
In addition, it is undisputed that Schillinger did not take a planned one-week vacation in May, 1971, and another one-week vacation in July, 1971, because of the press of work. The May vacation was cancelled at the request of Schneider because of a production problem that had developed. Schillinger did not take her July vacation because an employee had left the purchasing department and she had to train the new employee.
There is thus credible evidence that throughout the summer and fall of 1971 Schillinger was laboring without respite under an unusually heavy workload.
The circuit court did not consider School District No. 1 to be applicable to the facts of this case for the reason that in this case, unlike School District No. 1, there was involved 'an underlying weakness or quiescent disease.' This 'deteriorating mental disease' was, in the circuit court's view, identical to a 'deteriorating disc disease,' and so the same standards should be applied to both situations. Thus the circuit court upheld the departmental award by applying the Lewellyn rule 4 to this case:
'. . . If the work activity precipitates, aggravates and accelerates beyond normal progression, a progressively deteriorating or degenerative condition, it is an accident causing injury or disease and the employee should recover even if there is no definite 'breakage.' . . .' 5
The Lewellyn rule is inapplicable to this particular case of mental injury. Lewellyn clearly stands for the proposition that there is a compensable injury caused by an accident where there is 'a definitely preexisting condition of a progressively deteriorating nature' 6 and the work activity precipitates, aggravates or accelerates this condition beyond normal progression. In Schillinger's case there is no indication at all that she had previously suffered any kind of mental disease or debility. On the contrary, all of the evidence in the record indicates that she had been in normal mental health until her gradual decline and eventual breakdown in October, 1971. It is true that, as both psychiatrists and the psychologist testified, mental...
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