BOARD #: 05733292 DEPARTMENT OF INDUSTRIAL ACCIDENTS
DIVISION OF DISPUTE RESOLUTION
WORCESTER, MASSACHUSETTS

Advocates Inc Employer
Liberty Mutual Ins Insurer

DECISION OF THE ADMINISTRATIVE JUDGE OF THE DEPARTMENT OF INDUSTRIAL ACCIDENTS JUDGE WILLIAM CONSTANTINO JR

The Administrative Judge of the Department of Industrial Accidents having presided in the above-entitled matter under the provisions of General Laws, Chapter 152, reports as follows:

APPEARANCES: Eric S. Maxwell Esq., for the Employee, Andrew P. Saltis Esq., for Insurer, WITNESSES:
PROCEDURAL MATTERS

A. CONFERENCE AND APPEAL
The claim in this, matter was not accepted and it came on for a conference under § 10A of
the Act on December 11, 1996 and an Order filed on December 13, 1996 denied payment
on the claim. The employee's appeal was before me for a de novo hearing at Fall River,
on November 23, 1998, and on November 24, 1998 and at Worcester, on January 15,
1999, February 5, 1999 and on February 18, 1999.

B. EMPLOYEE CLAIM
The Employee's claims are as follows:
Section 34, temporary total incapacity benefits from August 21, 1992 to January 12, 1993 and §34 from March 8, 1993 to date and continuing;
Section 13 & 30 benefits;

C. THE INSURERS DEFENSE
The Insurer raised the following issues:
Liability, denies occurrence of an industrial injury;
Disability, and extent of incapacity;
Causal Relationship;
Deny entitlement to §13 & §30 benefits;
Section 1(7)(A) Bona Fide Personnel Action.

D. IMPARTIAL/MEDICAL REPORT
1. Additional medical testimony was authorized due to the inadequacy of the report of Dr.
and the complexity of the medical issues involved.

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G. ISSUES IN CONTROVERSY
1. Liability
2. Disability
3. Causation
4. Bona Fide Personnel Action
5. Applicability of Section 1(7)A with respect to pre-existing condition and emotional injury

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H. MOTIONS
I denied the Employee's Motion to Consolidate a claim for Section 28 benefits.
I allowed the insurer's Motion for Additional Medical Evidence.

JUDGES DECISION

After hearing the testimony and examining the exhibits, I find as follows:

SUBSIDIARY FINDINGS OF FACT . THE EMPLOYEE
is 50 years of age. She is unmarried and she presently resides in …. is a high school graduate who attended Quinsigamond Community College in Worcester. She did not receive a degree from that community college. has attended many training courses in the human service field. Ms. was a residential counselor of troubled youngsters at the Youville House in Worcester from 1984 to 1987. Ms worked for Advocates Inc. from 1987 to 1993. At Advocates Ms. was in a variety of positions such as Residential Counselor, Assistant Manager, Program Manger and Senior Program Manager.

2. THE INDUSTRIAL INJURY
Clearly I find that Ms is suffering a mental or emotional incapacity the question that needs to be resolved upon the analysis of the factors is whether the emotional disability was caused predominantly by stressful events of her employment and not solely out of bona fide personnel actions.

I find the following employment related stressful events contributing to the emotional disability of Ms. in March of 1993 and on August 21, 1992.
1) Several very potentially dangerous DMR clients were transferred to the program that Ms. supervised in Walpole;
2) Ms. had serious concerns that a tragedy would occur in her program at Advocates in 1992. (Exhibit #11)
3) A pedophile in that program supervised by Ms. did sexually abuse a five year old youngster who resided in the same apartment complex where that Advocates' Inc program was situated in Walpole;
4) A superb employee's performance review of Ms. was made by her supervisor, , and dated March 13, 1992, that review was never placed in her personnel file or was removed from her personnel file by her subsequent supervisor, Ms. Harrigan (Exhibit #9);
5) was informed by her supervisor, , that attempts would be made to get rid of Ms. as an employee at Advocates Inc;
6) The absence from her file of that March 12, 1992 performance review of Ms. , signed by both Ms. and Ms. , created a tremendous amount of stress for the employee. (Exhibit # 13)
7) On account of stressful events at work a psychotherapist, , counseled Ms. to be away from her work. (Exhibit #14)
8) 1 find that Ms. was setup to be demoted from her position as program manager not for bona fide personnel reasons but to get rid of Ms. as an employee.
9) 1 find that her supervisors at Advocates were giving Ms. a run around concerning the performance evaluation missing from her file.
10) 1 find that the supervisors of went beyond professional parameters of good faith in order to create an uncomfortable and hostile work environment for Ms. at Advocates after March 9, 1992, the date that left Advocates as 's supervisor.
11) 1 find that the stressful events that were experienced by Ms. during her work at Advocates were not the result of bona fide personnel actions.

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5. ADDITIONAL SUBSIDIARY FINDINGS

1. Since 1969 's vocational experience has been in a variety of human service related positions some of which at residential treatment centers.
2. 1 find to be a sincere and credible witness.
3. Ms. has experience working with emotionally disabled people, homeless people and autistic children.
4. Ms. initially worked at Advocates Inc at a facility in Dedham for chronically mentally-ill adults as a residential counselor.
5. Subsequently, Ms. was promoted to be the assistant manager at an apartment situated program in Walpole for individuals with major mental illnesses. In this position she supervised the staff and clients of that program.
6. Ms. 's job was extremely important to this woman - her testimony is "that my job was my life."
7. In 1991 Ms. was very concerned that dangerous and inappropriately placed clients were being assigned to her program.
8. In 1991 she met with Bill Taylor, Diane Gould and Michael Calvert to explain her concerns of the placement of potentially dangerous clients in her program.
9. In 1991 and 1992 Ms. was concerned with what was going on in the agency, Advocates Inc. with respect to client care. She reported her concern to authorities and met with once a week for several months for over two hours at a time.
10. In 1992 Ms. felt the clients in the facility where she worked were not safe and she was also fearful of the security of her job.

11. In 1992 Ms. felt that she was failing her clients. She felt so depressed concerning this that she wanted to die.
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17. Ms. was out of work on a medical leave of disability from August 21, 1992 to January 9, 1993.
18. In September 9, 1992 Ms. was demoted from the position of senior program manager of the Apartment Program in Walpole to an entry level position in Framingham. There was no written warning for this demotion and no specific indication of what Ms. was doing wrong in her work.
19. Ms. with the allowance of her physician did return to work as a residential counselor in the Framingham Facility on January 12, 1993 and she worked there until March 8, 1993.
20. On January 28, 1993 and on February 2, 1993 Ms. addressed two separate safety concerns to the DPPC (Disabled Persons Protection Commission) with respect to her safety concerns with the Framingham Facility.
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23. Ms. resigned from Advocates Inc on March 8, 1993 on the advice of her therapist and the advice of an attorney.
24. According to working with the clients was the best thing in the world for her, fulfilling and enjoyable.
25. The last day Ms. worked was in February of 1993, she reported to work on that day and was put on administrative leave by Advocates and was informed she could not return to work at Advocates unless examined by a lawyer/psychiatrist chosen by Advocates.
26. On August 21, 1992 Ms. went to the main office of Advocates Inc to fax a document to the telephone company regarding the installation of a telephone. Learning that her performance review was not in her file she snapped. …

27. In March 1992 Ms. received a positive performance evaluation from Nancy Parnel-Savnor at Advocates who was her supervisor.

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… on March 13, 1992 she had received a glowing personnel evaluation. The dichotomy between March 92 evaluation and September 92 evaluation is so striking, that I can not accept that the very stressful September 9, 1992 meeting and the documents prepared for that meeting are truly bona fide personnel matters. It appears to me that was set up at a very stressful time for her …..

Dr. Whaley notes that in 1991 Ms. spoke up concerning her concerns of inadequate care at Advocates particularly that mentally retarded clients who were high risk of violent behavior, agitation and assault were brought into her program. (Dep. trans p. 11) 1 find that this is a stressful event. When one of her client's did sexually abuse a youngster she felt her warnings were becoming true (Dep. trans p. 12) 1 find that this is a stressful event. When in 1992 her exemplary performance evaluation was missing from her personnel file this created a great deal of anxiety for Ms. , she consulted a psychiatrist, Dr. Adelman, ….I find this to be an extremely stressful event. After Ms. resigned in March of 1993, anything that would remind her of her work difficulties at Advocates would trigger panic and anxiety for Ms. (Dep. trans p. 13) in a way that is characteristic of post traumatic stress disorder. Regarding Ms. , Dr. Whaley sees these traumatic events as precipitators intensifying a pre-existing depression to the point of functional impairment or work disability so "that the traumatic events would be seen as a trigger to exacerbating the symptornatology, increasing the severity of the symptornatology to the point of impairing a person's ability to function whereas before the traumatic events they could at least function in spite of the depressive symptoms" (Dep. trans p. 23). Dr. Whaley asserts that, from 's perspective, her employer, Advocates, was taking undue risks with the kind of clients that they were accepting into the residential programs. That these were dangerous people, too dangerous to be managed, but the employer was involved with contracts and fulfilling contracts and therefore would take a chance." (Dep.' trans p. 47) …

1 find this to be a stressful event for Ms. . I accept Dr. Whaley's opinion that "the way I see it and the way I would formulated it is that the work stress produced a depressive and post-traumatic stress syndrome condition and that one of the symptoms or features of this condition is this somatic hypersensitivity" (Dep. trans p. 52)

I accept the opinion of Dr. Whaley that 's present psychiatric disability is a direct result of her Advocates experience (Dep. trans p. 53) and resulted from work stress. I accept Dr. Krainin's opinion that Ms. was probably somewhat chronically depressed prior to her employment at Advocates in 1989 (Dep. trans p. 8) Dr. Krainin remarks that in the consideration of harassment of one would need to look at the larger context of the employee's evaluation and assignments (Dep. trans p. 30) and not judged in isolation and that clearly Ms. had a great deal of anxiety about her 1992 performance evaluation not being in her personnel record (Dep. trans p. 34) 1 find that it was a stressful event to Ms. when she became aware that the confidentiality of her complaints to the DPPC was violated in that her employer was aware of her complaints (Dep. trans p. 48) and she felt frightened, angry, and betrayed.

Based on the assumption of a hostile work environment Dr. Krainin feels that work related stresses are the predominant cause of 's psychological disability (Dep. trans p. 58)

I find that from September of 1987 to March of 1992 had a excellent record of achievement and accomplishments as an Advocate employee and had been promoted and recognized during this period of approximately five years. I find that-in March of 1992 her departing supervisor , warned Ms. that her job at Advocates was in jeopardy; this occurred at that same time that gave Ms. an exemplary performance review. I find that the concern for her job, in which her performance had been evaluated as outstanding, was a very stressful incident for . I find that when chastised for expressing her concern of the safety of clients Mrs. experienced a stressful event.

Upon receiving medical documentation that was not able to work on account of severe stress, her supervisors gave her a series of negative performance evaluations which I find not to be bona fide.

Ms. made two complaints to the Disabled Persons Protection Commission regarding issues of suspected neglect or abuse of clients. These reports were statutorily protected communications, and were supposed to remain confidential. G.L. ch. 19C.

The fact that Ms. had made these reports to the Disabled Persons Protection Commission was revealed to her superiors at Advocates, after Advocates knowledge of these 19C reports, Ms. was placed on administrative leave, and required to be examined by a forensic psychiatrist of Advocates choosing, before being allowed to return to work.

Based on the assumption of a hostile work environment Dr. Krainin feels that work related stresses are the predominant cause of 's psychological disability (Dep. trans p. 58)

I find that from September of 1987 to March of 1992 had a excellent record of achievement and accomplishments as an Advocate employee and had been promoted and recognized during this period of approximately five years. I find that-in March of 1992 her departing supervisor , warned Ms. that her job at Advocates was in jeopardy; this occurred at that same time that Nancy Parnel Savor gave Ms. an exemplary performance review. I find that the concern for her job, in which her performance had been evaluated as outstanding, was a very stressful incident for Marie . I find that when chastised for expressing her concern of the safety of clients Mrs. experienced a stressful event.

Upon receiving medical documentation that was not able to work on account of severe stress, her supervisors gave her a series of negative performance evaluations which I find not to be bona fide.
Ms. made two complaints to the Disabled Persons Protection Commission regarding issues of suspected neglect or abuse of clients. These reports were statutorily protected communications, and were supposed to remain confidential. G.L. ch. 19C.

The fact that Ms. had made these reports to the Disabled Persons Protection Commission was revealed to her superiors at Advocates, after Advocates knowledge of these 19C reports, Ms. was placed on administrative leave, and required to be examined by a forensic psychiatrist of Advocates choosing, before being allowed to return to work.

I find this procedure by Advocate to be not done in good faith to not be a bona fide personnel action and to be an event at work producing significant stress on Marie .

I find that the negative experiences at her work at Advocates are a predominant cause of her emotional disability and that these negative experiences are not the result of bona fide personnel actions.

I find that even when I take into account the pre-existing psychiatric vulnerabilities and conditions of Ms. that the events at her work at Advocates are the predominant cause of her present emotional and psychiatric disability and incapacity.
Based on the forgoing Subsidiary Findings of Fact, and in consideration of the testimony and evidence presented, including my observation of the Employee, her demeanor as a witness and judging her veracity as well as taking into account her education, training and work history, I farther find as follows:

GENERAL FINDINGS

1. LIABILITY

I do find that the Employee sustained a personal injury arising out of and in the course of her employment at Advocates Inc on August 21, 1992.

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JAN 1 4, 2000

WILLIAM CONSTANTINO"JR
Administrative Judge
DEPT. OF INDUSTRIAL ACCIDENTS ,