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05/27/93 COLLIS E. PORTER v. DISTRICT COLUMBIA

May 27, 1993

COLLIS E. PORTER, PETITIONER
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, GEORGE WASHINGTON UNIVERSITY AND LIBERTY MUTUAL INSURANCE COMPANY, INTERVENORS



Before Steadman, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

Petition for Review of a Decision of the District of Columbia Department of Employment Services

FARRELL, Associate Judge: Petitioner Collis Porter seeks review of the denial by the District of Columbia Department of Employment Services (DOES) of her claim for disability compensation under the District of Columbia Workers' Compensation Act of 1979, as amended, D.C. Code § 36-301 et seq. (1988). Petitioner was struck by a gurney (a wheeled cot or stretcher) while performing her duties as a nursing assistant at George Washington University Hospital. Following an evidentiary hearing, the DOES hearing examiner found that petitioner's resulting physical injury had been treated successfully and resolved, and that her current disability was not causally related to the accident, but rather stemmed from a pre-existing personality disorder. She therefore held that petitioner was not entitled to compensation. The Director of DOES affirmed the examiner's decision. Our task on review "is limited to determining whether the Director's order is in accordance with law and supported by substantial evidence in the record." King v. District of Columbia Dep't of Employment Servs., 560 A.2d 1067, 1072 (D.C. 1989). That inquiry, however, requires that we first identify the standard of causation applied by the examiner and the Director. *fn1

Petitioner claimed that her present disability was a post-traumatic stress disorder, a serious personality disturbance traceable directly to the gurney accident on the job. Her primary witness in support of this theory was Dr. Ralph Wadeson, a board-certified psychiatrist. The employer/intervenors countered with testimony (via deposition) by Dr. Bruce Smoller, also a board-certified psychiatrist, that petitioner's present condition of severe depression had not been caused by the gurney accident, but stemmed from a pre-existing hysterical/hypochondriacal personality disorder marked by cyclothymic features, i.e., "up and down" shifts in mood.

In McEvily v. District of Columbia Dep't of Employment Servs., 500 A.2d 1022 (D.C. 1985), this court considered the agency's rejection of a claim for workers' compensation not unlike the present one. In that case the hearing examiner credited testimony by the intervenor's examining psychiatrist that the petitioner's present "depressive reaction" stemmed from a pre-existing "cyclothymic disorder . . . and a narcissistic personality disorder," rather than from conditions of his work. Id. at 1023. In sustaining the examiner's finding that the depression did not arise out of the petitioner's employment, *fn2 both the Director and the court implicitly approved the test for causation reflected in the psychiatrist's evaluation:

Dr. Schulman could not find any incident, experience, or ongoing occurrence that represented a significant stressor that would have affected anyone who was not so predisposed [to the depressive reaction]. He concluded that there could he no reasonable assessment of job-related stress, because the nature of that stress was highly subjective to petitioner.

Id. (emphasis added).

Subsequently, in Spartin v. District of Columbia Dep't of Employment Servs., 584 A.2d 564 (D.C. 1990), the agency employed a similar "standard for cases of emotional injury caused by job stress," id. at 568, in considering the claim of an executive consultant that stressful job conditions had caused him to become disabled by depression and other psychological illnesses. As in McEvily, the intervenor's psychiatrist had concluded that job stress was not responsible for the petitioner's emotional illness. In analyzing the evidence of causation, the Director applied a test derived from the agency's earlier decision in Dailey v. 3M Co. & Northwest Nat'l Ins. Co., H & AS No. 85-259 (May 19, 1988), under which, as this court explained,

an employee predisposed to psychic injury could recover if he is exposed to work conditions so stressful that a normal employee might have suffered similar injury. Thus, an employee with a preDisposition to mental illness is not precluded from recovering under Dailey.

Spartin, 584 A.2d at 570 (emphasis added). We recognized that the Dailey test "fits within the modern trend to compensate workers for emotional injury caused by job stress" even though they bring to the job some preDisposition to emotional illness, but that the test "is objective: it focuses on whether the stresses of the job were so great that they could have caused harm to an average worker." Id. at 569 (emphasis added). While we rejected the petitioner's argument that the Dailey test was an "inappropriate for determining whether suffered a compensable injury," id. at 568, we remanded for further consideration because of (inter alia) faults in the agency's application of "the objective Dailey standard. . . ." Id. at 570.

In the present case, the hearing examiner did not expressly apply the Dailey test or inquire, in McEvily's language, whether petitioner had been involved in an "incident experience . . . represent a significant stressor that would have affected anyone who was not so predisposed" -- i.e., Dailey's "average worker." *fn3 Yet in essence that is the test the examiner applied. She found that petitioner's current depressive condition "was not causally related to her . . . work injuries," which had resulted in no "objective evidence" of continued disability; rather, it was "related solely to her hysterical/hypochondriacal personality disorder." The Director likewise concluded that petitioner's "alleged stress/psychological disorder was not work-related" because no "specific, articulable source" rooted in the job, no "concrete non-personal stressors" (emphasis added), had been identified as its cause. Both the examiner and the Director concluded, in other words, that the gurney accident would not have caused a person lacking petitioner's subjective, pre-existing personality disorder to suffer the disability she now experienced.

As in Spartin, we perceive no reason here why the agency's application of an objective causal test to petitioner's claim of emotional injury is inconsistent with the Workers' Compensation Act. As one court has pointed out,

In cases where the disability or impairment is established, [a contrary] subjective test for causal nexus would result in an award of compensation for virtually all, if not all, claims based on mental disorders. If the claimant perceived that the job conditions caused the mental disorders, even if this were not true, the employer would he liable. subjective formulation ignores the fundamental statutory requirement that diseases or disorders arise out of and in the scope of employment.

McGarrah v. Saif, 296 Ore. 145, 675 P.2d 159, 171 (Or. 1983) (emphasis in original). Nor is it decisive that petitioner, unlike the claimant in Spartin, cites a specific job-related accident as the cause of her disorder rather than less easily identified conditions of stress in the employment. Whatever the triggering event or condition, the Director may properly apply a rule for causation in this difficult area of emotional injury that discourages spurious claims -- one focusing on the ...


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