This appeal arises under the provisions of the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. arts. 8308-1.01 et seq. (Vernon Supp. 1992) (1989 Act). A contested case hearing was held in (city), Texas, on March 26, 1992, with (hearing officer) presiding as hearing officer. The hearing officer, after finding that appellant experienced mental trauma as a result of learning she would again be required to work with a particular coworker who had harassed her on a previous business trip to (city), determined that appellant’s mental trauma was the result of a “legitimate personnel action” and thus not compensable pursuant to Article 8308-4.02(b) (1989 Act). Appellant challenges the hearing officer’s legal conclusions that appellant’s mental trauma resulted from a “legitimate personnel action” and that benefits were thus not payable under the 1989 Act. Appellant further challenges the hearing officer’s underlying factual findings that the employer’s attempt to require her to work with the coworker was lawful, and, was a legitimate attempt to address an employees’ conflict having the potential to harm the employer’s business interests. Appellant asserts that the employer’s action in “placing appellant in such a perilous situation was not a legitimate personnel action, . . . ” Respondent contends the employer “had a legitimate business interest” in ensuring its business interests in the Far East were not compromised by the conflict between these employees and that “all elements were met in order to justify the conclusion that the employer . . . had acted in the proper confines of a legitimate personnel action, . . . “
DECISION
Finding the evidence sufficient to support the decision of the hearing officer and finding no reversible error, we affirm.
Appellant (claimant below) testified at the hearing that she had been employed by (Employer) in (city), Texas, since June 1979 and was a senior training engineer whose duties included the training of foreign customers on equipment purchased from Employer. She had spent time in (city) in 1984 and again in 1990 to accomplish such training for Employer. She worked with fellow employee (Mr. T) during the two month business trip to (city) in 1990 which involved the testing of Employer’s equipment and they initially got along well. Appellant and Mr. T had been friends and coworkers before the Summer of 1990. However, appellant testified that Mr. T became very hostile to her on that trip and told some Chinese workers in a factory that appellant intended to talk to students at a nearby university about political matters, apparently referring to the 1989 (Square) confrontation between government troops and protesting students, and that he had tried to talk appellant out of doing so. Appellant denied having any such intentions and said she didn’t even speak Chinese. She felt this created a very dangerous situation for her. Appellant became convinced that Mr. T intended to harm her and she felt threatened by his hostile looks and actions. She perceived him as feeling very hostile towards her from his demeanor including his glares and body language. Mr. T never sexually harassed appellant nor physically harmed her. Appellant at the time talked to both her supervisor in (city) and to Employer’s man in charge in (city) about this problem without any apparent resolution. Appellant denied being an “activist” but apparently both she and her husband, as well as Mr. T, had been present at a protest outside the Chinese consulate in (city) after the (Square) event. She said that while Mr. T was an active demonstrator, she was present simply out of curiosity. Appellant’s husband, a Chinese citizen, had been granted political asylum by the United States government.
Approximately 10 days after returning to (city), appellant was advised she would be required to return to (city) in July 1991 for approximately three weeks for a final inspection. She hoped she wouldn’t have to return there with Mr. T and continued to make Employer aware of the problem with Mr. T. She thought having to work again in (city) with Mr. T would be bad for Employer’s business. She was afraid of Mr. T and was concerned for her personal safety if she had to be in (city) with him. Appellant said she wasn’t “paranoid” about Mr. T and that others had noticed the problem and suggested that she not go back to (city) with him. While she wanted to return to (city) and perform her training duties, she did not want to be in (city) with Mr. T unless they were working at different locations. When she discovered in May 1991 that she would have to return to (city) with Mr. T in July, she twice met with her supervisor about her fear of Mr. T. The supervisor then put both Mr. T and appellant on probation for six months and told them they were expected to return to (city) together and perform their work there satisfactorily or their employment would be terminated. Appellant agreed that Employer had a “legitimate business interest” in getting its training done under the contract with the Chinese and that the productivity of both appellant and Mr. T could suffer from their personal conflict. However, she did not feel that Employer had a “legitimate business interest” in placing her in a dangerous situation. Appellant also felt that Employer’s decision to force a female employee to leave the country and work with someone she feared to be very unfair. She said she feared for her personal safety.
Appellant felt confused and filed a complaint with the Equal Employment Opportunity Commission because she didn’t feel Employer was taking her complaints seriously. She felt Employer should have investigated the matter more seriously and that she wasn’t being treated fairly. Appellant also said that while she added a complaint concerning Employer’s discriminatory promotion policy towards females and felt she herself had been a victim of such policy, her failure to be promoted and Employer’s discriminatory promotion policy were not related to nor causative of her mental trauma. She said that while she wasn’t happy about not getting promoted, it didn’t stress her out, didn’t prompt her to seek medical care, and had nothing to do with her mental and physical state resulting from being told she would have to work with Mr. T again in (city). She maintained that “it was the prospect of going back to work in that situation that caused me the problems that I’ve had.” “It all comes down to the anxiety and fear of returning to (city) that made my doctor hospitalize me.” She also consulted (Dr. J), a psychiatrist, and was hospitalized for one week. She felt anxious and tense and developed depression and hypersomnia which caused her to sleep up to 15 hours a day. Appellant said that Dr. R told her she couldn’t travel to (city). Appellant said she had a wonderful life before Mr. T messed it up. She has been seeing Dr. R weekly and has yet to return to work.
Claimant was the only witness and the letter report of Dr. R was the only document adduced at the hearing. According to Dr. R’s letter, appellant “was asymptomatic before this situation arose.” His letter recited by way of history that Employer demanded that appellant travel to (city) to work with an individual she didn’t trust in a situation she believed to be unsafe. The letter went on to note that appellant shortly later learned of derogatory remarks made “by her employer” about her Chinese husband and their recent marriage and believed her employment situation was based on Employer’s concerns about her marriage rather than a fair evaluation of her complaints. In Dr. R’s opinion, “the stress involved in dealing with this situation was the precipitating factor in producing the Major Depressive Episode she is now suffering.”
The parties agreed at the outset that the issue before the hearing officer was whether or not appellant’s mental trauma was a compensable injury. At the benefit review conference preceding the hearing, respondent’s position was that mental trauma caused by a “legitimate personnel action” is not a compensable injury. The benefit review officer opined that “mental trauma or conflict at work due to a personnel action is not a compensable injury under the Act.” Appellant argued to the hearing officer that her fear of the prospect of returning to (city) with Mr. T caused her mental problems and that while the matter was related to her employment it was not a “legitimate business interest” of Employer to expose appellant to a dangerous situation. Respondent argued first that appellant had not sustained an “injury” relying on Article 8308-1.03(27) defining “injury” as involving harm to the physical structure of the body and on Transportation Insurance Company v. Maksyn, 580 S.W.2d 334 (Tex. 1979). In the alternative, respondent argued that even if appellant had sustained an “injury,” it was not compensable because Article 8308-4.02(b) provides that mental or emotional injuries arising from “a legitimate personnel action” are not compensable. The findings made by the hearing officer pertinent to her conclusions that appellant’s mental trauma resulted from a legitimate personnel action and was noncompensable follow:
FINDINGS OF FACT
3.During a business trip to the People’s Republic of (city) in 1990, Claimant was harassed by Mr. T, a co-employee.
4.Claimant reported Mr. T’s harassment to her employer, and requested that she not be required to work with Mr. T in the future.
5.Claimant was requested by her employer to go on a business trip to the People’s Republic of (city) in July 1991.
6.Prior to leaving for the July, 1991, trip to the People’s Republic of (city), Claimant learned that she would be required to work with Mr. T during the trip.
7.As a result of learning that she would be required to work with Mr. T, Claimant experienced mental trauma.
8. (employer)’s action in attempting to require Claimant to work with Mr. T was lawful.
9.(employer’)s action in attempting to require Claimant to work with Mr. T was a legitimate attempt to address a conflict between employees, which conflict had the potential to harm (employer’s) business interests.
CONCLUSIONS OF LAW
3.Claimant’s mental trauma is the result of a legitimate personnel action.
Article 8308-4.02(a) provides that “[i]t 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.” Article 8308-4.02(b) then provides that “[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.”
It has been observed that most of the statutory provisions of the 1989 Act pertinent to the matter of mental trauma injury are substantially similar to those in the predecessor statute and, therefore, most of the Texas case law interpreting such provisions is probably applicable under the 1989 Act. 1 Nations & Kilpatrick, Texas Workers’ Compensation Law, Chapter 13, page 13-1. The Texas Supreme court has held that mental trauma can produce a compensable accidental injury, even without an underlying physical injury, if it arises in the course and scope of employment and is traceable to a definite time, place, and cause. Bailey v. American General Insurance Company, 154 Tex. 430, 279 S.W.2d 315 (1955); Olson v. Hartford Accident and Indemnity Company, 477 S.W.2d 859 (Tex. 1972); Transportation Insurance Company v. Maksyn, supra. Some incidents, however, have been determined not to be accidental injuries and thus not compensable. See, e.g.,
Williams v. Texas Employers’ Insurance Ass’n, 663 S.W.2d 94 (Tex. App.-El Paso 1983, writ ref’d n.r.e.) where an employee had a “misunderstanding” with a coworker and concluded the coworker was inciting other employees against her. After noting the salient requirements of Bailey, Olson, and Maksyn concerning mental trauma resulting from an accidental injury, the (city) court concluded that the “misunderstanding” between the two employees didn’t qualify as a compensable mental trauma injury. Similarly, the mental trauma resulting to an employee who was reprimanded and transferred to another position in the business was held to be noncompensable. Duncan v. Employers Casualty Company, 823 S.W.2d 722, 725-726 (Tex. App.-El Paso 1992, n.w.h.). The Duncan Court observed that “[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 in or about furtherance of the affairs of the employer.” The (city) court went on to cite its comment in Marsh v. The Travelers Indemnity Company of Rhode Island, 788 S.W.2d 720, 721 (Tex. App.-El Paso 1990, writ denied) that “[d]isappointment in job expectations, worry and anxiety over job loss, failure to be promoted, and the like have long fallen outside the ambit of `injury sustained in the course of employment’ simply because such emotional or mental states are not connected with the employer’s business.”
The hearing officer found that appellant experienced mental trauma as a result of learning she would be required to work with Mr. T. Though the hearing officer failed to include the word “injury” in her Finding of Fact 7, we nevertheless conclude that this finding, when read with the “Statement of Case” and “Discussion” in the hearing officer’s Decision and Order, is a finding that appellant sustained a mental trauma injury. Although the record could lead us to conclude that no “injury” occurred, we cannot say there is not some probative evidence to support the hearing officer’s finding of a mental trauma injury and we thus affirm such a finding since it is not so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
We next consider the hearing officer’s determination that appellant’s mental trauma injury was not compensable because it arose principally from a legitimate personnel action. Article 8308-4.02(b). This new statutory provision itself imports the tenor of the phrase “personnel action” by including the examples of transfer, promotion, demotion, and termination. A commentary on the provision further illuminates the phrase in stating that “[r]easonable interpretation should also exclude mental or emotional trauma injuries arising principally from reprimands, evaluations, and changes in compensation.” 1 Montford, Barber & Duncan, A Guide to Texas Workers’ Comp Reform, Part 4A.02b, 1991. In her discussion the hearing officer stated that she was aware of no authority which would prevent the term “legitimate personnel action” from applying to an employer’s decision to send an employee on a business trip. We do not disagree with that analysis.
A decision to assign an employee to a foreign country to perform the work of the employer for some period of time is not unlike a “transfer,” one of the examples of a “personnel action” contained in the statute. Appellant testified that the Employer’s requirement that she make the trip to (city) and work there with Mr. T was one of the terms of the six month probation action taken against both she and Mr. T. In support of her conclusion regarding this action the hearing officer found that Employer was lawfully attempting to require appellant to work with Mr. T and to resolve the apparent conflict between these employees which had the potential for harming Employer’s business interests. We agree with the hearing officer’s view that such personnel actionle was indeed “legitimate.”
Appellant argued that the action was not legitimate because it would place appellant in a dangerous situation. This argument seems founded upon conjecture and speculation and not upon probative evidence. We find no error in the hearing officer’s legal conclusion that appellant’s mental trauma resulted from a legitimate personnel action. Although the hearing officer’s Findings of Fact 7 and 8 appear in the nature of legal conclusions, we nevertheless are persuaded that the absence of evidence showing the personnel action of Employer to be other than legitimate permits us to affirm the decision. It is the responsibility of the hearing officer to judge the relevancy and materiality of the evidence as well as its weight and credibility. Article 8308-6.34(e).
We may not substitute our judgment for that of the hearing officer if the decision is supported by some evidence of probative value and is not against the great weight and preponderance of the evidence. Texas Employers Insurance Association v. Alcantara, 764 S.W.2d 865, 868 (Tex. App.-Texarkana 1989, no writ).
The decision and order are affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Joe Sebesta – Appeals Judge