Havlik v. Multnomah County

EDMONDS, P. J.,

dissenting.

In this workers’ compensation case involving ORS 656.802(3)(b) and a worker at the Multnomah County Animal Control Center, the majority holds that “[t]he Board did not have the benefit of [our reasoning in Whitlock v. Klamath Cty. School District, 158 Or App 464, 974 P2d 705, rev den 329 Or 61 (1999),] and did, we believe, precisely what Whit-lock cautioned against.” 164 Or App at 527. Because I believe the Board’s ruling is consistent with Whitlock and the Supreme Court’s holding in Fuls v. SAIF, 321 Or 151, 894 P2d 1163 (1995), on which Whitlock is based, I dissent.

ORS 656.802(3)(b) provides that a mental disorder is not compensable under ORS chapter 656 unless the worker establishes that:

“[t]he employment conditions producing the mental disorder are conditions other than conditions generally inherent in every working situation or reasonable disciplinary, corrective or job performance evaluation actions by the *529employer, or cessation of employment or employment decisions attendant upon ordinary business or financial cycles.”

In ruling on claimant’s claim, the Board said,

“Claimant also contends that the [administrative law judge] erred in characterizing some of claimant’s stressors as excluded from among compensable stressors because they were ‘conditions other than conditions generally inherent in every working situation.’ See ORS 656.802(3)(b). In addition, claimant argues that she was not stressed by the employer’s recent policy changes, only by the effects of those changes. We disagree with both arguments.
“Claimant reported stress in part due to ‘continuing problems dealing with management.’ She believed that the employer’s new management decisionmakers knew nothing about animal control. Claimant specifically disagreed with new management policies that put an end to quick euthanasia and caused the shelter to be overcrowded. In claimant’s view, management’s mistaken prioritizing caused numerous stressors, including unexpected schedule changes, understaffing, and inadequate care for overcrowded shelter animals.
“But there is uncontradicted evidence that management’s scheduling and staffing changes were direct responses to budgetary constraints and the overcrowded conditions resulted largely from reliance on legal advice (regarding the proper holding time for feral cats). These stressors are not compensable because they are conditions ‘generally inherent in every working situation.’ See ORS 656.802(3)(b).” (Footnote omitted; citations omitted.)

In Fuls, the claimant suffered from a conversion disorder that resulted from a customer, with whom the claimant was acquainted, walking up behind the claimant and greeting him with a “bear hug.” After interpreting the intent of the legislature in promulgating ORS 656.802(3)(b), the court held that the disorder was not compensable because greetings as human interactions are conditions inherent in every working situation. In arriving at its decision in this case, the Board expressly acknowledged Fuls.

In Whitlock, the claimant was an elementary school music teacher who was reassigned to a secondary school *530social studies teaching position after the employer school district eliminated his position because of budget constraints. He felt overwhelmed by his new duties. The claimant worked 12 to 14 hours each day, including four to six hours each night preparing for the next day’s classes. As a consequence, he was diagnosed with “ ‘a single episode of nonpsychotic major depression due to stress at work.’ ” Whitlock, 158 Or App at 467. We remanded for consideration of whether the off-duty preparation time was the major contributing cause of the claimant’s mental disorder, after ruling that the Board erred in determining that preparation time is a condition “generally inherent in every working situation.” We noted that, “because no two cases are identical, the operative ‘condition’ cannot be defined solely and specifically by reference to a claimant’s particular circumstances” and that “the statutory inquiry focuses not on the work conditions of teachers, or even professionals, generally, but on the complete range of employments.” Id. at 473.

According to the majority, the Board, without the benefit of Whitlock, attributed claimant’s stress in this case as a reaction to “policy changes.” The majority reasons that the Board erred because compensability based on policies would be precluded in every case, inasmuch as virtually all working conditions can be traced back to a work-related policy.1 I understand the Board’s decision differently. The first and second paragraphs of the Board’s opinion quoted above refer to “policy changes” in the context of claimant’s argument. The second paragraph concludes with a description of stressors identified by claimant that resulted from the policy changes. Specifically, the stressors included “unexpected schedule changes, understaffing, and inadequate care for overcrowded shelter animals.” The third paragraph reflects the Board’s reasoning about how the stressors asserted by claimant engage with the language of ORS 656.802(3)(b). In *531other words, the Board made the same kind of factual inquiry in this case that the Supreme Court made in Fuls and we made in Whitlock.

Nothing in Whitlock provides a revelation about the meaning of the statute. We simply relied on the Supreme Court’s interpretation in Fuls. Nothing we said in Whitlock is determinative of the outcome of this case because each case must be evaluated on its own facts. Moreover, claimant’s particular work circumstances, i.e., working at an animal shelter, do not define the inquiry. Rather, the proper inquiry is whether the legislature would have contemplated that the particular stressors relied on by claimant are conditions that are generally inherent in the complete range of employments. Scheduling and staff changes and the adequacy of the employer’s physical facility to handle the workload are the kinds of conditions that are generally inherent in the complete range of employments. It is evident that the Board asked the correct question and arrived at the correct answer. Consequently, there is no reason for remand, and I would affirm.

ORS 656.802(3)(b) focuses on “employment conditions” that produce mental disorders. It excludes from compensable mental disorders those disorders that are produced by conditions that have as their source “employment decisions attendant upon ordinary business or financial cycles.” In light of the language of the statute, it is not peculiar that the Board would point out in its recitation of claimant’s argument that the source of the conditions at issue were budgetary constraints and legal advice, sources that are attendant to the ordinary conduct of business and financial cycles.