This appeal arises under the Texas Workers’ Compensation Act of 1989 (1989 Act), TEX. REV. CIV. STAT. ANN. arts. 1.01 through 11.10 (Vernon Supp 1993). On December 4, 1992, February 10, 1993, and April 8, 1993, a contested case hearing was held in (city), Texas, with (hearing officer) presiding on the latter two dates. He determined that respondent (claimant) experienced mental trauma (compensable) as a result of a letter of reprimand received on (date of injury). Appellant (carrier) asserts that there was no mental trauma, that if there was it resulted from repetitive mental trauma, and that if there was it resulted from legitimate personnel actions. Claimant replies that there is substantial evidence to uphold the decision.
DECISION
Finding that the incident in question was not found to be other than a legitimate personnel action and that it was not shown to be other than a legitimate personnel action, we reverse and render.
Claimant is a security officer for the (employer) working in the county jail. Claimant began working as a detention officer for the county in 1989. Until January 1992, he said that he had received no letter of reprimand. Brenda Bermudez (BB) testified that she was a corporal working with claimant in 1991 and that he was an average employee. She said she once wrote a report about claimant watching television and making personal telephone calls on the job. She said she was told to make the report and would not have made it at the time on her own volition. She added though, that she observed claimant do the things she reported, and when asked to compare these actions to another detention officer’s conduct, she replied that she had not observed the other officer make personal telephone calls or watch television on duty. She said she was asked to make the report by (Sgt. T) and that claimant had complained about Sgt. T (a female) sexually harassing him, but BB had never observed harassment. BB had once felt “intimidated” by claimant in regard to an argument they had at work, and she added, “(i)t takes a lot for me to be intimidated.”
Claimant testified that Sgt. T communicated to him her desire to have a personal relationship with him, and when he demurred, she stated that she would “break him,” move him from one floor of the jail to another, and have him fired. Claimant testified that harassment by Sgt. T continued and in December, 1991, he complained to (Capt. S) about Sgt. T but added that Capt. S did not take him seriously. Claimant prepared a “Charge of Discrimination” dated January 22, 1992. He stated that when he filed the document with the “EEOC” he was late for work, but that he phoned to say he would be late. (He said he would be 30 minutes late but was 90 minutes late.) He was counselled that day for being late. Prior to January 22, 1992, claimant had received no disciplinary action for the “intimidation” referred to by BB, supra. He had received a Letter of Counseling in June, 1991, for using profanity to an inmate at which time his loss of control was noted. Also, he had been told by (Lt. S) to apologize to a female officer for using profanity to her, but was not disciplined. See infra. Subsequent to January 22, 1992, claimant received the following:
January 23, 1992, performance evaluation rating claimant “good” in all categories.
February 10, 1992, counselling, arrived after roll call–had called in before, but his excuse was not accepted.
February 15, 1992 [claimant received February 19th] Letter of Reprimand by Lt. Garza [Lt. G] citing four areas basically relating to disruptive behavior and performance. [This action was appealed and was dismissed at the fourth level of appeal.]
July 31, 1992, Letter of Counseling for having reported being sick 13 days since January 1, 1992, with five days thereof adjoining his scheduled days off.
August 18, 1992, Letter of Counseling stating that upon returning from time off given to attend a funeral in July, claimant was told to provide certain documentation which he did not do.
September 24, 1992, Letter of Reprimand stating that claimant failed to report to work on September 9, 1992.
September 29, 1992, Notice of Proposed Suspension, citing a failure to report to work on September 25, 1992.
Claimant testified that on February 5, 1992, he went to Capt. S’s office to request time off (claimant had been told by Capt. S earlier to check with him later about the request). Capt. S, Lt. S and Lt. G were present. Capt. S did not wish to give him time off to visit his son because he was not married. Reference was then made to complaints received about his performance, citing BB. He said that the letter of reprimand received two weeks after this meeting was untrue in regard to his behavior at this meeting and prior to that time.
Claimant also stated that he was harassed after receiving the letter of reprimand on (date of injury). He referred to a letter of counseling dated August 18, 1992, as “the straw that broke the camel’s back.” (Counselling growing out of failure to provide documentation as to a funeral.) Claimant stated that his receipt of the September letter of reprimand and notice of proposed suspension on the same day is contrary to the employer’s policy. Claimant testified that his last day of work was on August 19, 1992. He characterized the February letter of reprimand as the “catalyst” and since that time he has been paranoid. Prior to the February letter of reprimand, claimant said that Capt. S, because of his discrimination complaint, took the place of Sgt. T “and began to strong-arm me.” On cross-examination, claimant did relate one incident he had with a female officer, (LI). While he did not make clear the date, it appears to have occurred in 1990 or 1991. It related to a prisoner’s conduct and claimant met with Lt. S. He was told to apologize to LI for directing profanity to her. Claimant said that LI was supposed to apologize to him too.
Claimant testified that while the acts of Sgt. T caused him anxiety and he started getting headaches, he did not have mental trauma at that time. He also stated that he was late for roll-call on February 10 because he had gone to file a retaliation complaint against Capt. S at that time. In late April 1992, claimant applied for a position with the (employer). He took a psychological test in June 1992 for that position, which he passed. Claimant then received an August 19, 1992 letter from (city) saying that he did not get a police position there because of “employment references.” Claimant first saw (Dr. G) a clinical psychologist on August 24, 1992.
Dr. G at the hearing did allude to (date of injury) as a factor in his diagnosis of post traumatic stress disorder. The following took place near the end of Dr. G’s testimony:
Q.Okay. One last question, then, and that is the opinions that you have rendered that [claimant] is suffering from post-traumatic stress disorder, are those opinions based upon the event in which [claimant] was allegedly given a bad reference when he applied to the (employer) partment?
A.They’re based on a whole series of events, including a reprimand, including harassment, including the bad recommendation. The whole series of events caused this. (emphasis added)
Q.Is there one particular event, some sort of event traceable to a specific time, place, and circumstance that created this post-traumatic stress disorder?
A.Yes. February the 19th, 1992, I think the–kind of the straw that broke the camel’s back was having this–was the time when he filed a complaint against the supervisor for giving him a bad reference. Because his intention was to get out of the whole situation by moving to Houston. When they blocked him from doing that, I think that caused the whole thing to come crashing down around his ears. (emphasis added)
. . . . .
Q.All right. And so you can’t state with any degree of medical probability or certainty that there was any one specific incident that caused the post-traumatic stress disorder?
A.I – my – my feeling is that February the 19th, 1992, when he filed the complaint against his supervisors and the resulting effect of that caused the post-traumatic stress disorder. I think the day of the injury was February the 19th.
. . . . .
A.He filed an EEOC, but his filing of the complaint resulted–I mean, he had a right to file a complaint. Then when they began to harass him and to–refused to give him a good recommendation, et cetera, then that’s–that’s what caused him to break. (emphasis added)
Dr. G did testify that receiving a letter of reprimand was significant enough to cause claimant’s stressful situation. He added that that one incident led to claimant’s symptoms. When Dr. G was earlier asked if it were possible for one specific incident to cause mental trauma, he replied that it was; he said:
A.Yes. I have, in many instances, seen cases where a person receives a reprimand or a person is called into the office and given a verbal reprimand where the person just falls apart and cannot work from that time on. In fact, I have a similar case where a school superintendent, was given a letter of reprimand and a notice that she was incompetent after having worked in that same position for about 20 years. And she has never been able to return to work, and she completely became depressed with post-traumatic stress disorder. And that’s a case I’m still treating.
In discussing the entries he made in his record of August 24th and 25th, Dr. G stated that the most important thing he recorded that day was the bad reference given to the employer. He characterized that reference as “I think that was the straw that broke the camel’s back, you know, really.” Dr. G then referred to that reference as having been “preceded by some incidents and maybe even followed by some incidents.”
Dr. G did testify that a person could continue to work by “going through the motions” for a period of time after encountering the trauma that caused post-traumatic stress disorder. Later in his testimony, Dr. G was asked what he meant by “single episode” in the diagnosis, “post-traumatic stress disorder, major depression, single episode.” Dr. G replied that single episode means “the first time he’s been depressed and in the hospital–has been significantly depressed.” He said that tests he gave claimant pointed to this diagnosis.
In addition to BB, referred to previously, the carrier called Capt. G (at the time Lt. G, who will be referred to as Lt. G). Lt. G testified that he was at the meeting on February 5, 1992, with claimant. He said that claimant raised his voice in an abrasive manner and ripped open his buttoned jacket. He was not personally aware of disruptive behavior by the claimant on earlier occasions but took the word of Capt. S and Lt. S for it. He did not know at the time about claimant’s complaint to the EEOC. He said that even without the input about claimant’s past behavior, what he saw at the February 5th meeting was sufficient for him to write the letter of reprimand. The letter was approved for issuance and then issued by Capt. S, who as captain of the shift had authority to deliver the letter Lt. G wrote. Lt. G said such delivery was not outside the chain of command. Lt. G and claimant were on the same detail and Lt. G saw him daily, when at work, from February 19th to July 1st and saw nothing to indicate that claimant had been affected professionally by anything in that period. Claimant did comment to Lt. G (who signed the February 15th letter of reprimand delivered to claimant on February 19) that he thought Capt. S was harassing him, possibly referring to the EEOC complaint.
Article 8308-4.02, 1989 Act provides:
(a)It is the express intent of the legislature that nothing in this Act shall be construed to limit or expand recovery in cases of mental trauma injuries.
(b)A mental or emotional injury that arises principally from a legitimate personnel action, including a transfer, promotion, demotion, or termination is not a compensable injury for the purposes of this Act.
Examination of the first part of the article draws attention to cases interpreting mental trauma under the applicable law prior to the 1989 Act. Duncan v. Employers Cas. Co., 823 S.W.2d 722 (Tex. App.-El Paso 1992, no writ) was decided after the legislature wrote Article 8308-4.02(a) about neither limiting or expanding recovery. It is useful, however, because it cites cases in being at the time the legislature made the above comments. Citing City of Austin v. Johnson, 525 S.W.2d 220 (Tex. Civ. App.-Beaumont 1975, writ ref’d n.r.e.), Duncan said, “[b]eing reprimanded, deserved or undeserved, for one’s job performance may well be, from both the employer’s and the employee’s standpoint, a natural part of any job causing mental stress but the resulting injury, if any, is not suffered while the employee is engaged in or about furtherance of the affairs of the employer.” (emphasis added) Once the Duncan court decided that any mental trauma from a reprimand was not in the course of employment, it looked upon the question of whether it was traceable to a definite time, place, and cause as unnecessary. Duncan also referred to Director, State Employees Workers’ Compensation Division v. Camarata, 768 S.W.2d 427 (Tex. App.-El Paso 1989, no writ), as extending the concept of injury to its outer limit by upholding a jury finding that a false memo about an employee’s work performance caused mental trauma. While the rationale of Johnson, supra, indicates that even under prior law (Article 8308-4.02(a) of the 1989 Act) injury from a reprimand was not considered in furtherance of the affairs of the employer, Article 8308-4.02(b) also addresses the question. See Texas Workers’ Compensation Commission Appeal No. 93137, decided April 7, 1993.
Appeal No. 93137 cites “A Guide to Texas Workers’ Comp Reform”, Vol 1, § 4.02(b), pages 4-38, note 118, Montford, Barber, Duncan, which says: “For reference to a case where mental trauma resulting from personnel actions was held compensable which should no longer be compensable under Sec 4.02(b), see Director, State Employees Workers’ Compensation Div. v. Camarata, 768 S.W.2d 427 (Tex. App.-El Paso 1989, no writ).” Texas Workers’ Compensation Commission Appeal No. 92710, decided February 16, 1992, noted that “the statute is not exhaustive in its listing of personnel actions, and that reprimands or evaluations would be included.” That appeal also cited City of Austin v. Johnson, 525 S.W.2d 220 (Tex. Civ. App.-Beaumont 1975, writ ref’d n.r.e.) for the proposition that injury from personnel actions was not in furtherance of the affairs of the employer.
With case law looking upon personnel actions as not causing compensable injuries because they do not further the affairs of the employer, the question in this case of the legitimacy of the action may not be solely controlling, but will be decided. The Appeals Panel has said in Texas Workers’ Compensation Commission Appeal No. 92266, decided August 3, 1992, Texas Workers’ Compensation Commission Appeal No. 93022, decided February 24, 1993, and Appeal No. 93137, supra, that no condition, other than that it be “legitimate,” has been imposed on personnel actions. In the case on appeal, Lt. G said that he saw enough by claimant’s conduct to write a reprimand even without the information provided to him by others. The reprimand was reviewed prior to issuance. The claimant had received counselling in the prior month and a Letter of Counseling during the prior year. The claimant has testified that Capt. S was harassing him and allegations of “retribution” were made. The hearing officer found that the letter of reprimand in February 1992 was “unjustified.” The hearing officer also found that “the letter of reprimand, the letters of counseling and the notice of proposed suspension do not constitute legitimate personnel actions.” (While there is only one notice of proposed suspension, there is more than one letter of reprimand so it is impossible to determine which one letter of reprimand the hearing officer is addressing. In addition, “letters of counseling” mentioned in this finding could include the letter of counseling of June 1991 which was not attacked.) The Appeals Panel will not equate an “unjustified” letter of reprimand to a personnel action that is not legitimate. Therefore there is no finding that the February letter of reprimand was other than a legitimate personnel action upon which to base the conclusions of law that claimant’s mental injury arose from a letter of reprimand received on (date of injury), and that injury did not arise from a legitimate personnel action.
Even if the February letter of reprimand had been found to have been other than a legitimate personnel action, the decision would not stand. As stated, the Johnson case, supra, pointed out that even an undeserved letter of reprimand would not give rise to a compensable injury. In the case on appeal the only evidence questioning legitimacy was the testimony of the claimant as to Capt. S retaliating against him. Dismissal, alone, of the letter of reprimand on appeal does not indicate that it was not a legitimate action. (See Appeal No. 93137, supra, which called for the claimant to show that the personnel action was “contrary to law, employer’s policies, or any other requirement that would render illegitimate” the personnel action.) While legitimacy is not always determined by whether the action was ultimately upheld on its merits, it may in some instances be compared to the power of administrative agencies to regulate. See Texas State Board of Examiners in Optometry v. Garp, 412 S.W.2d 307 (Tex. 1967), which looked not just at whether a decision was supported, but at whether the agency had exceeded its delegated powers. There is no evidence before us that police policy or city policy prohibited a letter of reprimand based, in part, on information provided by a superior, with some intent to retaliate, when another superior has personally observed conduct that can support the same reprimand. (Compare to 22 Tex. Jur.3d § 2074 which addresses the sufficiency of probable cause for searches by saying that it is immaterial that the person making the affidavit had been informed of the facts by others when he also had knowledge of facts sufficient to constitute probable cause.) The dismissal of the letter of reprimand did not indicate that a question was being raised as to its legitimacy. (As a point of reference, this reversal of the hearing officer’s decision indicates no question as to the legitimacy of that decision).
Finally, while weighing the evidence is a matter for the hearing officer, a review of the facts as to mental trauma raises valid questions. Claimant asserts that the mental trauma was caused by an incident on (date of injury). On that day he received a letter of reprimand based on his conduct. We note that he received a letter of counseling in 1991 for conduct. He continued to work. Contrary to Dr. G who said that a person could continue to go through the motions at the job without quitting immediately, Lt. G testified that he saw no change professionally (contact on a daily basis) in claimant for months thereafter. When Dr. G gave examples of other patients to whom a single incident had caused mental trauma, he referred to each as having quit work right after the incident. See Transportation Ins. Co. v. Maksyn, 580 S.W.2d 334 (Tex. 1979) as requiring “proof of a definite time, place, and cause.” Dr. G’s testimony was not definite as to time or cause. An expert’s opinion as to medical probability will be considered from looking at the substance of the expert testimony. See Lucas v. Hartford Accident & Indem. Co., 552 S.W.2d 796 (Tex. 1977). Looking at the substance of Dr. G’s testimony, it appears to relate that the main causative event was the notice to claimant that he was not hired by the employer, even though Dr. G often referred to that fact as occurring on February 19th. We observe that claimant first went to Dr. G in August 1992, within days of receiving the notice of not being hired, not within days of receiving the February 19th reprimand. In addition we note that claimant used the words “straw that broke the camel’s back” in referring to August events, not the February reprimand; Dr. G used similar words about camel’s backs twice in his testimony, both times referring to the notice not to hire, regardless of the date he attached to it. When not discussing the notice not to hire, Dr. G once referred to the February 19th EEOC complaint as the cause, but several times referred to a series of events (repetitive mental trauma) as causative. (We also note that claimant testified he made two EEOC complaints; one was made on January 22nd and one was made on February 10th; none were made on February 19th.) We further note that claimant passed the Houston psychological tests in June after the February events, and his tests by Dr. G showing mental trauma were given after the notice of not hiring he received in August. We do not have to decide the basis for mental trauma in this case because of our prior determination that the letter of reprimand was not shown to be other than a legitimate personnel action (See Texas Workers’ Compensation Commission Appeal No. 92149, decided May 22, 1992 and Texas Workers’ Compensation Commission Appeal No. 93150, decided April 14, 1993 which require the claimant to show the action was not legitimate), but were we to decide this question, we would state that the finding of mental trauma as resulting from a letter of reprimand of February 15th (received on February 19th) was against the great weight and preponderance of the evidence because the evidence did not show a definite time and cause.
The decision and order are reversed and a new decision rendered that claimant did not show that he sustained a compensable injury as a result of mental trauma.
Joe Sebesta – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
CONCURRING OPINION:
I join the majority in the result in this case but would base the rationale solely upon the finding that the hearing officer’s determination that the claimant’s mental trauma resulted from the letter of reprimand of February 15th was against the great weight and preponderance of the evidence. For the reasons stated by the majority, it appears to me that the great weight of the evidence is that the claimant’s injury resulted from the August 1992 refusal of the employer to hire him and not from the February 1992 letter of reprimand.
I decline to join the majority in finding essentially that the personnel actions taken by Bexar County after the claimant filed his EEOC complaint were legitimate. The hearing officer found them “unjustified” (whether he was exactly accurate in counting the number of reprimands, letters of counseling or suspensions). I believe that a failure to remand on this issue, if controlling, deprives the hearing officer of his fact finding function.
Further, I believe that had the fact finder found the personnel actions of the County not to be legitimate there is evidence to support him. In spite of the gloss Bexar County wants to put on these personnel actions, from my view they look questionable at best.
Gary L. Kilgore – Appeals Judge