PHILLIPS v. ARKANSAS HIGHWAY DEPARTMENT, 1996 AWCC 312

CLAIM NO. E103731

ELIZABETH M. PHILLIPS, EMPLOYEE, CLAIMANT v. ARKANSAS HIGHWAY DEPARTMENT, EMPLOYER, RESPONDENT and PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 17, 1996

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE CHARLES J. DOERPINGHAUS, JR., Attorney at Law, Benton, Arkansas.

Respondents represented by the HONORABLE CALVIN GIBSON, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on May 15, 1996. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that she sustained post-traumatic stress disorder as a result of sexual harassment, arising out of the course of her employment. After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury arising out of her employment with the respondent. Therefore, we find that the administrative law judge’s decision must be affirmed.

[3] A hearing was held in the present claim on November 23, 1993. At the hearing, the claimant asserted that she has experienced a compensable mental injury, post traumatic stress disorder, as a result of her supervisor’s sexual harassment between May 26, 1987, and January 16, 1991. In an opinion and order filed on May 2, 1994, the administrative law judge found that the Arkansas Workers’ Compensation Commission lacks jurisdiction in cases involving sexual harassment because the intentional personal acts associated with sexual harassment do not arise out of the employment and are not risks associated with employment. On appeal, the Full Commission affirmed the decision of the administrative law judge. [4] However, in Phillips v. Arkansas Highway TransportationDepartment, 52 Ar. App. 170, 916 S.W.2d 128 (1996), the Arkansas Court of Appeals found that the Arkansas Workers’ Compensation statutes in effect at the time of the claimant’s alleged injury do not exclude sexual harassment claims. In addition, the Court found that the Commission erred in finding that sexual harassment could never arise out of a person’s employment, stating:

In order for an injury to arise out of employment, it must be a natural and probable consequence or incident of the employment and a natural result of one of its risks. Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993). To determine this issue, the Commission should apply the same rule to sexual harassment cases that it applies in assault cases: an injury arises out of the employment if the risk is increased by the nature or setting of the work. See, Welch’s Laundry Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992). Whether sexual harassment is a risk to which an employee is exposed because of the nature of the work environment is a fact that should be decided on a case-by-case basis.

[5] In the present claim, we find that the nature and setting of the claimant’s work environment did not increase her risk of exposure to sexual harassment. In this regard, the claimant testified that she first became employed at the Arkansas State Highway Department in 1986. At that time, she worked in Malvern maintaining a highway rest area. However, in 1987 the claimant was promoted to the position of area headquarters attendant at a North Little Rock area headquarters office. The claimant testified that her duties in that position included building maintenance and cleaning, grounds work, logging truck mileage on a daily basis, clerical duties, radio dispatching, and telephone duties. [6] The claimant testified that her North Little Rock supervisor, Homer Blair, began making sexual advances toward her the day after she started working in the North Little Rock office. The claimant testified that she and Mr. Blair shared the same office, and that he asked the claimant to engage in sex on a consistent basis beginning on May 26, 1987, and continuing until January 16, 1991, when he resigned his position. In addition, the claimant testified that Mr. Blair would make comments about the claimant’s breasts and that Mr. Blair touched her breasts on one occasion. The claimant testified that she hit Mr. Blair after he touched her breasts. The claimant testified that she and Mr. Blair were alone in the office whenever he would make these comments. In addition, the claimant testified that Mr. Blair would go home for lunch and call back to the office asking the claimant to meet him for sex. In addition to the face to face encounters and the telephone calls, the claimant testified that on one occasion, Mr. Blair instructed the claimant to burn approximately 20 videotapes that had been found at a highway rest area. The claimant testified that Mr. Blair accompanied her to the salt pile where she burned the tapes, and stood over her while she burned the tapes. [7] One of the claimant’s co-workers reported Mr. Blair’s sexual misconduct to the central office. An investigation followed. When interviewed, the claimant initially indicated that she had not been sexually harassed by Mr. Blair. However, the claimant later reported that she had been sexually harassed. On completion of the investigation, Mr. Blair resigned. The claimant filed an EEOC complaint and later filed suit in federal court against Mr. Blair and the Highway Department, in addition to her claim for workers’ compensation benefits. The claimant and Mr. Blair settled the federal lawsuit, and the claimant dismissed her suit in federal court against the Highway Department prior to the 1993 hearing on her claim for workers’ compensation benefits. [8] In short, the evidence indicates that, after the claimant transferred to the North Little Rock office, the claimant’s work as an area headquarters assistant consisted of clerical and office duties as well as light manual labor in the office and on the office grounds which did not increase her risk of experiencing sexual harassment. In addition, we find that no increased risk existed in the fact that the claimant worked at times in close proximity with her supervisor or in the fact that her job duties required her to follow her supervisor’s directions. In this regard, the claimant’s testimony indicates that her supervisor received training through the Highway Department to prevent and eliminate sexual harassment in the workplace, although the claimant’s testimony indicates that Mr. Blair clearly disregarded that training in his personal conduct in the office, over the telephone, and perhaps on the office grounds. On these facts, we find that the greater weight of the evidence indicates that no causal connection exists between the nature and setting of the claimant’s work duties and the risk of sexual harassment in her work place. Therefore, for the reasons discussed herein, we find that the greater weight of the evidence establishes that the claimant’s sexual harassment by her supervisor did not arise out of the claimant’s employment. [9] We also find that the claimant has failed to satisfy her burden of proving that she suffers from a post traumatic stress disorder which is causally related to her employment. In this regard, the claimant has the burden of proving by a preponderance of the evidence that any psychological or emotional condition she has experienced is causally related to her employment. Henson v. Club Products, 22 Ark. App. 136, 736 S.W.2d 290 (1987); Boyd v. General Industries,22 Ark. App. 103, 733 S.W.2d 750 (1987). The compensable injury need not be the sole cause of claimant’s psychological condition. A causal connection can be found if a claimant’s compensable injury was a “substantially contributory” cause of her psychological condition. See,City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission. CentralMaloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196
(1984); Clara Peevy v. James River Corp., Full Workers’ Compensation Commission, Jun. 19, 1992 (Claim No. E032238). [10] Initially, we note that the claimant gave inconsistent testimony regarding whether she had ever experienced problems with her nerves prior to going to work at the North Little Rock office. At one point, the claimant indicated that she had no prior nerve problems; however, at another point in her testimony, the claimant testified that she used to “swell up” and that her family physician prescribed nerve medication before she worked for Mr. Blair. The claimant testified that after her supervisor’s sexual harassment came out, she “got really bad”. The claimant testified that she has experienced “flashbacks” and bad dreams, particularly with regard to burning the videotapes. [11] The claimant has received counselling from the Highway Department’s Employee’s Assistance Program, although the documentary evidence does not indicate the nature or reason for that counselling. The claimant has also been followed by a therapist, Mr. Ben Spurlock, and a clinical psychologist, Dr. Douglas Stevens since 1991. Dr. Stevens attempted to administer the MMPI-2 in June of 1991, obtained invalid results, and therefore orally administered a short form of the MMPI. According to Dr. Stevens’ report, the short form MMPI indicated elevated profiles for thought disorder, depression, anxiety, alienation, and agitation. Dr. Stevens diagnosed the claimant with post traumatic stress disorder related to sexual harassment, and Dr. Stevens has assigned the claimant a 10% impairment rated the body as a whole based on her psychological condition. [12] The Diagnostic Statistical Manual of Mental Disorders
(DSM-III-R) explains post-traumatic stress disorder as follows:

The essential feature of this disorder is the development of characteristic symptoms following a psychologically distressing event that is outside the range of usual human experience (i.e., outside the range of such common experience as simple bereavement, chronic illness, business losses, and marital conflict).

[13] The fourth edition of the Diagnostic StatisticalManual of Mental Disorders describes one of the essential diagnostic criteria for a diagnosis of a post traumatic stress disorder as follows:

The person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.

[14] In the present claim, we find that the greater weight of the evidence indicates that the work-related incidents indicated by the claimant are clearly not consistent with the nature of the stressors which cause post traumatic stress disorder. Moreover, we note that the claimant has been exposed to other stressors, including domestic violence after marrying in 1989 and an automobile accident in May of 1991, each of which may be consistent with Dr. Stevens’ diagnosis of post traumatic stress disorder. In addition, Mr. Spurlock’s office notes also indicate that the claimant has experienced additional stress in her marital relationship related to a chemical dependency that her husband has experienced. Consequently, we find that the claimant has failed to prove by a preponderance of the evidence that any post traumatic stress disorder which she may be experiencing was substantially occasioned by her exposure to sexual harassment at work. [15] In addition, we find no merit in the claimant’s assertion on appeal that the administrative law judge should have held an additional hearing after the Court of Appeals remanded to the Commission “for further proceedings consistent with this opinion.” Moreover, the record in this case indicates that both parties were provided a full and fair opportunity to present their case at the first hearing, and the claimant has not identified in her brief any additional evidence which might have been relevant to the issues presented in this case. [16] Therefore, after reviewing the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury arising out of her employment. Consequently, we find that the decision of the administrative law judge must be, and hereby is, affirmed. [17] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman ALICE L. HOLCOMB, Commissioner

[18] Commissioner Humphrey dissents.