Dibrito v. Adult & Family Services

ARMSTRONG, J.,

dissenting.

The majority affirms the denial of claimant’s colitis claim on the ground that substantial evidence supports the board’s interpretation of Thompson’s opinion of the cause of claimant’s condition. The majority is wrong. Thompson’s opinion cannot be understood to mean what the board says it means. Because the board’s rejection of the claim is premised on its interpretation of Thompson’s opinion, the claim must be remanded to the board for reconsideration. See, e.g., Liberty Northwest Ins. Corp. v. Verner, 139 Or App 165, 168-69, 911 P2d 948 (1996).

*332Thompson examined claimant at employer’s request. Because of the information available to him, he could not resolve whether the major cause of claimant’s colitis condition was work-related stress. He explained in his report that the resolution of that issue depended on whether claimant’s view of her May 14 meeting with her supervisor was correct:

“However, I would wonder if the conditions of her job were out of the ordinary to the degree that would justify a stress claim. I believe it is [claimant’s] opinion that [her supervisor] was out of order when he appeared to be forcing her into a job share position so that she would lose her permanent position, and she saw that as a retaliatory move on his part. If her view is correct, then she probably does have a legitimate stress claim. On the other hand, if her view is wrong and she was primarily angry over his way of handling it, then the stress could be related more to the past history of losses of her father and mother, the job being of primary importance to her at this point in her life, and the fear of losing that.”

(Emphasis supplied.)

It is not surprising that Thompson testified as he did. He had not been given information on which to evaluate whether claimant correctly perceived the May 14 events. Consequently, he could state only a conditional conclusion about whether the major cause of claimant’s colitis condition was work-related stress.

Thompson expanded on those points at his deposition. In doing that, he pinned down the information that, if known, would lead him to conclude that claimant’s condition was work related:

Q. “And if you assume that [claimant] did have an irritable bowel syndrome, then would that support the conclusion that based on the temporal relationship between the incident at work and the onset of this particular condition, that the stress at work was the major contributing cause of her problem?
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A. “[Pause.] No. I explained in my report that I thought it was more complicated than simply connecting up *333those two things in point in time. * * * I think it depends whether the conditions at work were out of the ordinary to decide whether or not the stress is related to the job. Because she could have been stressed out about her job, but it might have been based on faulty perception on her part or some of her neurotic problems that she had had her whole life. So I think we have to get to the point of whether or not there was a legitimate stressful event that occurred at work.
Q. “If you assume that the conditions at work were conditions other than conditions generally inherent in every work situation or reasonable disciplinary corrective job performance evaluation action by the employer, and that they existed in a real and objective sense — which is something someone else would have to decide — but if you assumed those facts, would the situation at work in May of 1991 be the major cause of her stress?
* * * *
A. “Then I would say that the exacerbation of her symptoms, which may or may not be irritable bowel syndrome, that those were — the major cause of that was work stress, if that assumption is correct.”

(Emphasis supplied.)

Thus, Thompson testified that claimant’s stress could have been caused by her job, by her misperception of the situation or by her neurotic problems, depending on whether a legitimately stressful event had occurred. However, if claimant did not misperceive the May 14 events, and those events were beyond those generally inherent in every work setting, then the May 14 events were the major cause of claimant’s condition.1

In its initial order, the board interpreted Thompson’s testimony as follows:

*334“Dr. Thompson, the only psychiatrist to examine claimant, did consider the contribution of different causes of claimant’s condition but he could not conclude that work was the major contributing cause of claimant’s condition or the need for treatment following the May 1991 incident. We note at one point Dr. Thompson was asked to assume that all of the stress claimant had had at work was work related. As we discussed above, inasmuch as claimant had faulty perceptions and preexisting ‘neurotic problems’ which contributed to her stress, that assumption was incorrect.”

That interpretation is simply wrong. Thompson was not asked to assume that “all of the stress claimant had had at work was work related.” Instead, Thompson was asked to assume only that the conditions of the May 14 meeting were “conditions other than conditions generally inherent in every work situation * * * and that they existed in a real and objective sense.” Thompson said that claimant’s condition could have been caused by claimant’s misperception of events and by her preexisting neurotic problems, but, if claimant’s perception of the events were correct and the events were other than those generally inherent in every employment, then the major cause of claimant’s condition was work-related stress.

On reconsideration, the board again misconstrued Thompson’s testimony:

“As we have previously explained, notwithstanding his hypothetical opinion, we interpret Dr. Thompson’s ultimate conclusion to be that the primary cause of claimant’s current disability and need for medical treatment are non-work factors. In any event, assuming for the sake of argument that claimant’s perceptions of all of her alleged work stress were real, Dr. Thompson also referred to claimant’s preexisting ‘neurotic problems’ as a contributor of stress. In light of such considerations we are unable to find that Dr. Thompson supported a conclusion that claimant’s work stress was the major contributing cause of her current colitis condition.”

Contrary to the board’s conclusion, Thompson’s testimony cannot fairly be read to imply that “the primary cause of claimant’s current disability and need for medical treatment are non-work factors.” As previously explained, Thompson testified that, whatever contribution nonwork factors made *335to claimant’s condition, the major contributing cause of the condition was work-related stress if claimant correctly perceived the May 14 events. Thompson’s testimony cannot be interpreted to say anything different.

The majority notes that the board did not find that the May 14 meeting was indeed a legitimately stressful event. 149 Or App at 329. That is beside the point. The board based its decision on the assumption that claimant had not misperceived the situation. Once the board made that assumption, it could not interpret Thompson’s testimony to mean anything other than what it says, namely that “the major cause of [the exacerbation of claimant’s symptoms] was work stress.”

In summary, the board relied on its interpretation of Thompson’s testimony to reject claimant’s colitis claim. Because the board and the majority misconstrue that testimony, I respectfully dissent.

It is worth noting that a medical diagnosis of the cause of claimant’s condition presumably did not depend on whether the conditions at work were other than those generally inherent in every work setting. The conditions at work could have caused the claimant’s colitis episode even if they were conditions generally inherent in every work setting. The reason that the nature of the work conditions matters is that ORS 656.802(3)(b) permits recovery for the effects of work-related stress only if those effects are not the product of conditions that are generally inherent in every work setting or of reasonable disciplinary action.