Petersen v. SAIF Corp.

BUTTLER, P. J.,

dissenting.

Because I agree with both the referee and the Board that claimant has not sustained her burden to prove that the on-the-job conditions, whatever they were, were the major contributing cause of her psychological problems, I would affirm. There are two parts to the problem.

First, assuming that the majority properly interprets McGarrah v. SAIF, 296 Or 145, 675 P2d 159 (1983), and Leary v. Pacific Northwest Bell, 67 Or App 766, 680 P2d 5 (1984), as holding that a claimant’s unrealistic perception of events that occurred on the job justifies compensation if the misperceptions resulted in psychological disability, it misapplies the requirement that at-work conditions, when compared to off-work exposure, be the major contributing cause of claimant’s disease. Here, although the medical evidence was conflicting, it was agreed that claimant was exposed to several off-the-job stresses, including difficulties with one of her children, flooding that surrounded her house and isolated her for days at a time each winter, and her interpersonal disfunction, evidenced by a history of six marriages. She is 35. Although claimant had seen four doctors, only one of them, Dr. Martin, came close to supporting her claim. However, he did not come *173close enough: he stated that claimant’s on-the-job exposure to stress was a major contributing cause of her psychological condition. The majority translates that opinion as stating that the on-the-job stress was the major contributing cause.

When there are several stress factors that contribute to a claimant’s psychological problem, some of which are job-related and others not, a statement that the job-related stress is a major cause does not equate with its being the major cause. If we assume that each of the stress factors could be quantitatively assessed, it could be that three off-the-job stress factors each contributed to the extent of 20 percent and that the on-the-job stress contributed to the extent of 40 percent. Under those circumstances, it would be accurate to state that the on-the-job stress was a major contributing cause; however, it would not be accurate to state that the on-the-job stress (40 percent), as compared to the off-the-job stress (60 percent), was the major contributing cause.

The majority, apparently recognizing that the medical evidence is insufficient to carry claimant’s burden, bridges the gap by stating that it relies on both the medical and non-medical evidence to conclude that the job-related stress was the major cause of claimant’s psychological problems. It is not clear what non-medical evidence the majority relies on, unless it is the statement that “[although claimant had experienced other stress in her life, she had always been able to cope in the past,” 78 Or App at 171. Not even claimant asserts that. Rather she concedes that she has had “prior emotional problems” but that they had been resolved at the time she worked for the city.

To the extent that the majority relies on lay testimony to support its conclusion that on-the-job stress was the major contributing cause of her psychological problems, it is in error. This kind of problem is not uncomplicated; it requires expert testimony, although the expert need not be a specialist in psychiatry. A medical doctor’s testimony is competent to show the causal connection, Barrett v. Coast Range Plywood, 294 Or 641, 661 P2d 926 (1983), and in order to establish compensability one “must then look either to the degree or to the quantum of stress on the job as compared to that off the job.” Dethlefs v. Hyster Co., 295 Or 298, 308, 667 P2d 487 (1983). On this record, claimant has not sustained her burden *174to show that the on-the-job stress, when compared to the off-the-job stress, was the major cause of her disability. Accordingly, and for this reason alone, I would affirm.

The second aspect of the problem is more problematical. We had found in McGarrah v. SAIF, 59 Or App 448, 651 P2d 153 (1982), that the on-the-job events of which the claimant had complained had actually occurred, that there was no evidence of stress off the job that contributed to his condition and that the medical evidence was undisputed that the job-related stress caused claimant’s mental disorder. On those facts, we held that the claim was compensable. In Leary v. Pacific Northwest Bell, 60 Or App 459, 653 P2d 219 (1982), we held that claimant’s work-related stress was the major contributing cause of his disability, applying the subjective test, concluding that, even though the work-related stress appeared largely to be his own reaction to his working conditions, the claim was compensable.

The Supreme Court granted review in both McGarrah and Leary. The court affirmed McGarrah, holding that we had properly applied the objective test; it remanded Leary, because we had applied the subjective test. On remand, 67 Or App 766, 680 P2d 5 (1984), applying the objective test, we found that some of the on-the-job stress causing conditions were real and that others were imagined. We stated that, when viewed objectively, the on-the-job conditions could produce stress, even though an average worker might not have responded adversely to them. Notwithstanding that observation, we held that the claim was not compensable, apparently because we concluded that most of the events and conditions of claimant’s employment that produced stress were imagined and that claimant’s stress appeared to result primarily from his perception of the way he was treated at work.

Although I confess some doubt, I believe that the Supreme Court’s opinion in McGarrah and our opinion in Leary on remand require that, not only must the events complained of actually have occurred, but also that the claimant’s perception of the events must have been within the realm of reason. Here, all that really occurred was that a new city manager took over and made some changes, including a change in claimant’s job description. The new manager’s reorganization of the city offices, the purpose for which he was *175hired, apparently created tension in the office. That much is reasonably understandable. However, claimant’s principal concern was that she was going to be “squeezed out” of her job. Although she said that some work was taken from her, she also complained that she did not have time to do her assigned work. There was no evidence that anyone sought to dismiss her. She felt nervous and sought tranquilizers, because she did not want to lose the contact with people which her job afforded her. Unless the majority is right in applying a subjective test, I do not think the record is sufficient to sustain this aspect of claimant’s burden of proof.

Accordingly, I respectfully dissent.