Knoetzel v. State Accident Insurance Fund

*629BUTTLER, J.

In this Workers’ Compensation case, claimant, a 60-year-old bus driver, appeals from an adverse decision of the Workers’ Compensation Board (Board) holding that his psychological disability did not arise out of his employment. It is clear from the record that claimant suffers from severe paranoia, and that it was necessary for him to leave his employment as a result thereof.

It is claimant’s contention that he was physically and mentally in good health until October, 1975, at which time a fellow employee insulted him by suggesting, without any foundation in fact, that claimant was a homosexual, following which incident many other employees were verbally and by gesture insulting toward him, and menacing situations were created by others to threaten him. He enumerated many "incidents” which he interpreted as intended to malign, embarrass or threaten him, and which led to his present disability and his terminating his employment in March, 1977.

We agree with the Board and the referee that the record does not support claimant’s contention that the disability arose out of his employment. See Friesen v. Gould, Inc., 18 Or App 120, 523 P2d 1285 (1974); Williams v. SAIF, 36 Or App 211, 584 P2d 327 (1978). Claimant first sought professional medical help in March of 1977 while he was still working, when he consulted Dr. Davis, a clinical psychologist. Dr. Davis saw claimant three times, after which he advised him to seek psychiatric consultation, and recommended that he discontinue working temporarily. Dr. Davis’s report states that claimant complained of being mistreated by fellow employees for "unexplained and obscure reasons,” but attributed their motives to resentment or jealousy. The report also states:

"* * * He has no history of legal infraction, and makes a point of specifically denying any unnatural or deviant sexual conduct at any time in his life, because he *630feels others have made defamatory remarks in this regard.”

There is nothing in that report to indicate when claimant’s problem began, or what started it. Claimant was then referred by his attorney to Dr. McCulloch, a psychiatrist, in April of 1977, who reported that claimant related the onset of his problem to an "incident” which he said occurred at work about 1V2 years earlier. At the hearing, claimant testified that when he and another employee were together they would tell each other dirty stories. On the occasion in question the other employee told a story involving "queers,” after which claimant said, "Oh, are you one, too?”, to which his fellow employee responded, "I kind of thought you was one.” From then on, according to claimant, other employees made insulting remarks or gestures to or concerning him. He submitted a lengthy catalogue of "events” he interpreted as being directed toward him.

Both the employer and SAIF attempted to investigate the matter, but claimant was unable to name any of the fellow employees who might have been involved. It appears from the record that the only "incidents” or "events” which could be confirmed are those mentioned in the dissenting opinion. There is no evidence that any of those events involved fellow employees. There were two "hangman’s noose incidents,” one of which was described by a regular passenger on claimant’s bus as a wire loop on a telephone pole along the road, and another as a wire coat hanger hanging in the men’s room of a doughnut shop near Tigard, which the bus drivers frequented, on which the shop’s employees hung things. The "shoes in the refrigerator incident” was confirmed as involving an employee of the same doughnut shop who kept his shoes there while he was off duty so that the cook would not wear them. A doughnut shop employee showed claimant the shoes in the refrigerator, which claimant interpreted as being children’s shoes which were shown to him to suggest *631that he must be the kind of pervert who would eat children’s shoes.

The barricade across the road "incident” was nothing more than that, but claimant considered it as intended to hinder his bus. There is no evidence that a fellow employee was involved in any of the "confirmed” incidents on which the dissent relies. Dr. McCulloch assumed that the incidents which purportedly involved co-employees of claimant did, in fact, occur, but were misinterpreted by claimant. Accordingly, he relates claimant’s psychiatric problems to the job. The evidence, however, does not support that assumption.

The other psychiatrist, Dr. Colbach, was of the opinion that claimant’s condition was not job-related and that claimant was a "casualty of life,” not of his job.

The record as a whole does not persuade us that the "triggering” incident was any more real than the numerous incidents related by claimant which were either fanciful or clear misinterpretations of real ones, or that he was, in fact, harassed by fellow employees. Accordingly, we hold that claimant has not sustained his burden of proof that his disability arose out of his employment.

Claimant also assigns error to the Board’s order awarding reasonable attorney’s fees to claimant to be paid out of a 25% penalty imposed by the Board because of the respondent’s unreasonable resistance to the payment of compensation from the date it had notice of the claim until payment of compensation was first made. See Jones v. Emanuel Hospital, 280 Or 147, 570 P2d 70 (1977); Williams v. SAIF, 31 Or App 1301, 572 P2d 658 (1977); ORS 656.262(8). Respondent concedes that the penalty and attorney fees must be determined and imposed separately. Accordingly, we must reverse that portion of the Board’s order and remand for a proper order.

Affirmed in part, reversed in part and remanded.