Milwaukee County v. Labor & Industry Review Commission

SCHUDSON, J.

(dissenting). The administrative law judge concluded that Neal suffered a compensable physical injury. The ALJ wrote:

[Milwaukee County's] contention that [Neal] is required to establish unusual stress to prevail in her claim is found to be without merit. Because [Neal] suffered physical complaints and injury as a result of job related stress, applicant is only required to prove medical causation between the job stress and the physical injury.

(Emphasis added.) Affirming the ALJ, the Commission concluded:

[T]he requirement that an injured worker present evidence that her injury resulted from unusual stress on the job applies only in cases in which the applicant is making a claim for a non-traumatic mental stress injury. In this case, [Neal] filed a claim based on the fact that she suffered a physical injury....

*264(Emphasis added.)

Although Milwaukee County and the majority prefer to refer to Neal's physical injuries as mere physical "symptoms" of a mental injury, neither refers to any factual basis on which to reject the Commission's factual findings regarding the triggering emotional stress and the resulting physical injury. Milwaukee County argues, however, that under School District 1 v. DILHR, 62 Wis. 2d 370, 215 N.W.2d 373 (1974), "claims of disability based upon emotional stress are compensable only if the stress is outside of the ordinary stress suffered by other employees in the same field or occupation." That is so, however, when a mental injury, not a physical injury, is at issue.

The majority now accepts Milwaukee County's misreading of School District I, by writing that "both the administrative law judge and the Commission blurred Neal's stress-caused nervous' injury with its physical symptoms . . . [and] failed to grasp the psychogenic aspect of Neal's injury." Majority op. at 260. Nothing in the record, however, suggests that the Commission misunderstood anything about Neal's injury. Quite obviously it understood its "psychogenic aspect," finding that Neal suffered physical injury resulting from job-related stress.

That Neal's physical injury may have a "psychogenic aspect" neither precludes recovery nor catápults Neal to a higher burden of proof. As the amicus curiae brief of the Wisconsin Association of Trial Lawyers explains:

The legislature intended applicants to recover worker's compensation benefits after showing a medical causal connection between work exposure and disability. Where disabling symptoms are *265physical, the applicant's burden is satisfied by showing that a physical injury arose out of employment, whether or not the job stress was extraordinary.
A physical injury is compensable even if caused by "ordinary" stress. . . . Only in cases where the injuries are mental/mental ("non-traumatic mental injuries") did the legislature intend to require a higher standard for compensability, that of "extraordinary stress."
. . . The Supreme Court implemented the extraordinary stress test to discourage false claims of mental injuries caused by stress. . . . The court's concern in School District that the "floodgates" would open in mental injury cases was tempered by the unusual stress test requirement. These concerns are unnecessary and misplaced where disabling physical symptoms exist. Since disabling physical symptoms are more susceptible to objective scrutiny than subjective mental ailments, a more appropriate, admittedly less stringent test should be applied to claims of physical injuries resulting from mental stress.
In this case, the physical symptoms were elevated blood pressure, chest pain and pressure and fainting. These are symptoms subject to quantification through the use of calibrated diagnostic tools. . . . The physical injuries disabled her, not diagnoses associated with non-traumatic mental injury. The Act should be liberally^ construed to afford workers with mental/physical injuries the right to compensation after offering proof of medical causation between the stress and the injury.
. . . Statutorily, injury is defined as "mental or physical harm to an employee caused by accident or *266disease." Where the injury is a non-traumatic mental injury, the injury must have resulted from a situation of greater dimension than the day-to-day emotional strain and tension all employees must experience. 102.01(2)(c), n.l. No such additional requirement exists when the disabling symptoms are physical, even though they stem from a sudden mental stimulus.

From a distant appellate perspective, the majority attempts to draw difficult factual distinctions between physical symptoms and physical injuries. Instead, I suggest we return to the basics: (1) worker's compensation law is to be liberally construed to effectuate its purpose — compensating employees for work-related injuries; (2) the law of Wisconsin is "well settled that the determination of disability, its cause, its extent, or duration, present questions of fact and the [Commission's] findings thereon become conclusive if supported by credible evidence." Vande Zande v. DILHR, 70 Wis. 2d 1086, 1095, 236 N.W.2d 255, 259-260 (1975) (citations omitted); and (3) as the majority concedes, this is a case "where we should give great weight to the agency's interpretation" of the statute. Majority op. at 259. True to these standards, we should affirm. Accordingly, I respectfully dissent.