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December 30, 1998



Before Terry and Ruiz, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Terry, Associate Judge:

Petitioner Cora Gary filed a claim for benefits under the District of Columbia Workers' Compensation Act, D.C.Code §§ 36-301 et seq. (1997), based on emotional injuries she allegedly suffered in the course of her employment by the Washington Metropolitan Area Transit Authority (WMATA). She sought temporary total disability benefits and continuing payment of medical bills for alleged work-related and work-induced stress. After an evidentiary hearing, a hearing examiner of the Department of Employment Services (DOES) issued a compensation order denying her claim, on the ground that she had failed to demonstrate that her working conditions could have caused a similar emotional injury in a person not predisposed to such injury, and that her condition therefore did not arise "out of and in the course of" her employment, as required by D.C.Code § 36-301(12).

Ms. Gary sought review of the examiner's decision by the Director of DOES. When the Director failed to issue a decision within forty-five days from the date of her application, she filed a timely petition for review in this court. *fn1 Before us she contends that the examiner's findings of fact were not based upon substantial evidence and that he misapplied the law in determining that her injury was not compensable. We affirm.


A. The Events of June 1992

Ms. Gary was employed by WMATA as a stock clerk and was responsible for preparing accounts, taking inventory of materials, and pulling materials to be shipped out to other WMATA facilities. On June 1, 1992, she examined her office's master calendar of "days off" for employees and noticed that her name was not on the calendar for June 5, although she had previously requested leave for that day in order to attend her daughter's graduation from high school. Upon seeing that her name was not on the calendar, Ms. Gary promptly requested leave for June 5 from her supervisor, Nancy Tompkins. *fn2 Ms. Tompkins, however, denied her request because Ms. Gary had previously used all of her allotted leave time, and because there would not be sufficient coverage of the office if Ms. Gary were absent. Both Ms. Gary and Ms. Tompkins raised their voices during the confrontation, and, according to Ms. Tompkins, Ms. Gary "became loud and boisterous and [used] profanity." Ms. Tompkins testified that Ms. Gary then returned to the stock room and, in the presence of other employees, repeatedly called Tompkins a vulgar name (which we need not repeat here).

Ms. Gary then went to the manager of her division, Kenneth Crane, who also denied her request for leave. Next, she approached Michael Kurtz, WMATA's director of maintenance and support, who had supervisory authority over both Ms. Tompkins and Mr. Crane. Ms. Gary testified that she was "very upset and . . . shaking and crying" when she spoke to Mr. Kurtz. After he too declined to grant her request for leave, *fn3 Ms. [723 A2d Page 1207]

Gary left his office, saying, "I just can't take any more of this." From there she went to WMATA's health unit, where she was advised not to return to work until she had a "written release to work" from her treating psychiatrist.

Ms. Gary returned to work on June 9 with the consent of her psychiatrist, Dr. James Ryan. She testified that soon after she arrived, Ms. Tompkins began "talking . . . real mean and hateful" and "badgering" her because she "wasn't working fast enough." Ms. Gary became upset and called Dr. Ryan, who advised her to leave the job immediately. She ultimately resigned from her position at WMATA in January 1993.

B. Ms. Gary's Psychiatric History

The evidence showed that there were several stressors in Ms. Gary's life which antedated the June 1992 incidents and formed the basis of her pre-existing psychiatric condition. Ms. Gary testified that she had been the victim of sexual harassment on the job in February 1990, and that she and her husband began having marital difficulties soon thereafter. The problems with her husband culminated in her filing an assault charge against him because he had allegedly threatened her life. *fn4 Ms. Gary also stated that she had suffered from a bleeding ulcer since 1991 and was regularly taking medication for it.

Dr. James Ryan treated Ms. Gary from March 1990 to July 1992, initially in response to her alleged sexual harassment by a WMATA supervisor. When Ms. Gary first went to Dr. Ryan, she was "in a very disturbed state, very restless, very anxious, [and] pacing around the office." After this visit, Dr. Ryan initially diagnosed her as suffering from an incipient stress disorder and a high anxiety disorder. He advised her to stay away from work because "any contact with work at that time would arouse more rage." He also prescribed a tranquilizer (Valium) for her, to be taken three times a day. Dr. Ryan testified that in April 1990 Ms. Gary experienced "a break with reality" that caused her to ride a bus to the end of the line and check into a motel there. While she was at the motel, a fire broke out in Ms. Gary's room, apparently as a result of her smoking in bed. She was taken to the Washington Hospital Center, where she "slipped . . . into a state of depression" and had to remain for almost a month, being treated with anti-depressant medication. *fn5

In July 1992 Ms. Gary was taken to Suburban Hospital in Bethesda, Maryland, after police found her trying to jump off a bridge. Upon her admission to the hospital, Ms. Gary began treatment with Dr. Juan Saavedra. Dr. Saavedra diagnosed Ms. Gary as suffering from major depression and post-traumatic stress disorder, initially triggered when she was sexually harassed at work in 1989. The doctor based his diagnosis on Ms. Gary's "suicide ideation, suicide attempts, inability to work, insomnia, lack of concentration, memory deficit, and ...

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