This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On December 6, 1995, a contested case hearing (CCH) was held in ___________, Texas, with _________ presiding as hearing officer. In response to the issues before him the hearing officer determined that claimant had suffered a compensable mental trauma injury on _____________ (all dates are 1995 unless otherwise noted), and that claimant had disability beginning on July 11th.
Appellant, the Workers’ Compensation Division of the Attorney General’s Office, herein referred to as carrier, appealed certain of the hearing officer’s determinations challenging the admission of a medical report which carrier maintained had not been exchanged, contending that the identified incident causing the mental trauma was a legitimate personnel action and alleging that claimant’s condition was a reoccurrence of a prior condition. Carrier requests that we reverse the hearing officer’s decision and render a decision in its favor. Respondent, claimant, responds that the decision is supported by the evidence and requests that we affirm the decision.
DECISION
The decision and order of the hearing officer are reversed and we render a new decision that the claim is not compensable for the reasons stated herein.
Substantial testimony and evidence dealt with claimant’s past medical history. Concisely, it is undisputed that claimant was the victim of physical and sexual abuse while in her teens (approximately ten years earlier), had a history of some drug and alcohol abuse, had been in an abusive teenage marriage and had been admitted to a state psychiatric hospital for a brief period of time. The medical evidence established that for six or eight months prior to June 1995, when the incident in question occurred, claimant was being treated for depression with anti-depressants.
Claimant is in her mid-twenties and is employed as a mental health aide at a state psychiatric hospital, the employer. Succinctly, claimant testified that during the night shift of ________ and ________, she observed one or more instances of inappropriate verbal abuse, regarding dispensing of medication, between a licensed vocational nurse (LVN), who was supposed to be dispensing the medication, and a patient, in the presence of RM (Mr. RM), the registered nurse (RN) unit supervisor. The following day, ________, at the beginning of her shift, claimant made a late chart entry of her observations of the LVN’s alleged abusive behavior in the patient’s chart. At the end of her shift that day, claimant went on a prescheduled one-week vacation. On claimant’s return to work on ___________, coworkers told claimant of “rumors” that the LVN in question had threatened “to get” claimant, that the LVN would get claimant fired and that claimant had “better watch her back.” Claimant said that she called Mr. RM to schedule an appointment with him and to confront him about the charting she had done on ________. Claimant testified that when she met with Mr. RM, he took her into an office where MM (Ms. MM), the evening Director of Nursing and head nurse was located, and closed the door. Claimant testified during this meeting that Mr. RM yelled at her, called her “a liar,” told claimant that she would be closely monitored, gestured “aggressively,” and pounded his fist on the table. Claimant testified that Ms. MM looked at her “very sternly” and instructed claimant not to discuss the incident with other workers. Claimant said that the meeting lasted about 20 minutes and that she felt like she had “been eaten by a pool of sharks” and felt “very violated.” One of claimant’s coworkers and another lower level (non-nurse) supervisor testified that after the meeting claimant appeared “visibly shaken up” and that there was a drastic change in claimant’s personality. Claimant attributes her current depression, anxiety and sleeplessness to that meeting. Claimant was hospitalized for several days for her condition on __________. Claimant has been receiving regular psychiatric care since _________ and has not been released to return to work.
There is substantial medical evidence in the record, both from before the _______ meeting and after. After the meeting in question, claimant was diagnosed as having a major depressive disorder. One report can be interpreted to say that claimant has had a “recurrent” severe major depressive disorder. After the __________ meeting claimant consulted Dr. B (Dr. B), the psychiatrist who had treated her for some of her earlier problems. A report dated August 8th from Dr. B indicates claimant has “a strong paranoid component and there has been an ongoing ‘hassle’ in the work place.” The key report from Dr. B is dated November 3rd, and was admitted over carrier’s objection (discussed later). That report stated:
It is my opinion that [claimant’s] current psychiatric condition, which led to her hospitalization under my care on __________, was directly related to the specific incident on or about ___________. Prior to the meeting with her supervisors, there was no sign whatsoever of any type of emotional distress. The meeting did trigger a chain or emotional responses which became manifest in terms of [claimant’s] emotional decompensation and inability to cope.
The hearing officer thoroughly summarized the evidence and in his discussion commented:
the actions of [Mr. RM] were outside the established agency procedures for disciplinary actions. It is difficult to believe anyone would think this was a legitimate personal action. Verbal abuse, physically threatening jesters [sic], and name calling are not legitimate personal [sic] actions.
Section 408.006(a) provides “[i]t is the express intent of the legislature that nothing in this subtitle shall be construed to limit or expand recovery in cases of mental trauma injuries.” The Texas Supreme Court has held that mental trauma can produce a compensable injury if it arises in the course and scope of employment and is traceable to a definite time, place and cause. Olson v. Hartford Accident and Indemnity Company, 477 S.W.2d 859 (Tex. 1972) and Bailey v. American General Insurance Company, 154 Tex. 430, 279 S.W.2d 315 (1955). (Bailey is a case in which an employee suffered a traumatic neurosis from fright when a scaffold both he and a coworker were standing on collapsed resulting in the coworker falling to his death.) Claimant contends that the _________ meeting with Mr. RM and Ms. MM was the specific time, place, and cause which produced claimant’s mental trauma. We would generally note that a compensable mental trauma injury, in the absence of a physical injury, is unusual unless it involves some “horrific” event such as in the Bailey case.
Further, Section 408.006(b) states 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 . . . . ” Claimant, and the hearing officer, contend that “verbal abuse” such as “yelling, calling claimant “a liar,” threatening gestures and name calling cannot be considered legitimate personnel actions. We disagree. In Texas Workers’ Compensation Commission Appeal No. 951645, decided November 8, 1995, the Appeals Panel noted:
Under very limited circumstances the Appeals Panel has found actions by an employer not to be legitimate personnel actions (see Texas Workers’ Compensation Commission Appeal No. 92189, decided June 25, 1992, which affirmed a hearing officer’s determination of compensability where the evidence from the claimant’s own supervisor indicated that the action in question violated the employer’s standards of supervision).
In Duncan v. Employers’ Casualty Co., 823 S.W.2d 722 (Tex. App.-El Paso 1992, no writ), the court held “[b]eing reprimanded, deserved or undeserved, for one’s job performance may well be, from both the employer’s and 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.” In Texas Workers’ Compensation Commission Appeal No. 92710, decided February 16, 1993, we stated “[i]t could be similarly argued that even if crude language is used during a reprimand, such language would not inexorably remove the reprimand from the ambit of [8308-]4.02(2) [presently codified as Section 408.006(b)].” We distinguish Appeal No. 92189, supra, on the ground that, in that appeal, while the supervisor “berated [the injured employee] loudly with the use of foul language,” the supervisor’s manager testified that the supervisor’s action had violated the employer’s standards of supervision. There is no similar testimony or evidence in this case. Neither Ms. MM, nor an authority over Ms. MM, presented evidence that Mr. RM’s or Ms. MM’s conduct violated the employer’s standards of supervision. Ms. MM, in a written statement, noted the “conversation continued in a very argumentative manner between [Mr. RM] and [claimant].” It was obvious that Ms. MM viewed the conversation as a factual disagreement regarding the charting. Therefore, we hold that criticism, and attempted corrective action by Mr. RM, deserved or not, or however unartfully or boorishly undertaken, in our opinion is still a legitimate personnel action because it dealt with the quality of the work done by claimant, that is, her job performance. The workers’ compensation disputes resolution process cannot impose standards of supervision an employer may, or may not use, under penalty of establishing a mental trauma claim if the supervisor does not follow our standards. In Texas Workers’ Compensation Commission Appeal No. 950535, decided May 19, 1995, the Appeals Panel stated that the term “legitimate personnel action” refers to the activity being performed, not whether the direction for that action was “either fair, deserved, or polite.” On this basis, we reverse the hearing officer’s decision that claimant sustained a compensable mental trauma injury and render a new decision that the event of ________, which caused claimant’s present condition, did constitute a legitimate personnel action, as that term has been interpreted by case law.
Although our decision as to the legitimate personnel action is dispositive of this case, we briefly address carrier’s other points. Carrier contends that Dr. B’s November 3rd report was improperly admitted because it had not been exchanged. Claimant’s attorney testified, under oath, that she had included that report in a packet sent to, and received by, carrier. Carrier contends the report was not in the packet. The hearing officer chose to believe claimant’s attorney, noting that there was no reason for claimant to conceal that report because it was favorable to claimant. The hearing officer is the sole judge of the weight and credibility for the evidence (Section 410.165(a)) and as such could believe one person’s testimony over anothers. We find no error in the admission of the subject report.
Carrier contends that claimant’s current condition is a recurrent episode of her prior condition and/or was not causally linked to the ___________ meeting. We observe that Dr. B’s November 3rd report establishes causation and the determination whether claimant’s current condition is a new mental trauma, an aggravation of a prior condition or due entirely to a prior condition, is a factual determination for the hearing officer to resolve. Having determined it was a new condition traceable to a date, time and cause, we find those determinations supported by the evidence. However, as noted above, we find that as a matter of law the complained of actions in the ____________ meeting constitute a legitimate personnel action and, hence, are not compensable pursuant to Section 408.006(b).
We reverse the hearing officer’s decision and order and render a new decision that claimant did not sustain a compensable mental trauma injury.
Thomas A. Knapp – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Alan C. Ernst – Appeals Judge