Third Department Decision 6-27-13

The Court decided one case today which contained a dissent.

In Matter of Brittain, the carrier appealed a decision of the Board which affirmed the establishment of a work related accident. Claimant performed human resources work for the employer that required her to frequently travel between her office and New York City, and the employer covered her travel and lodging expenses. The Inspector General investigated an anonymous complaint regarding claimants travel and determined that she had committed no wrongdoing, but referred the matter to the Comptroller to assess the tax implications of the employer s travel reimbursement practices . The Comptroller ultimately determined that to correct the employer s reimbursement practices that violated Internal Revenue Service rules claimant should be deemed to have earned over $100,000 in additional income as a result of those practices, and that she was responsible for paying back taxes and penalties on that amount. There is no dispute that she incurred a psychic injury upon learning of the Comptroller s findings, and she hereafter applied for workers compensation benefits. The Workers Compensation Board rejected the argument advanced by the employer and It s workers compensation carrier that her claim was barred by Workers Compensation Law §2 (7), and this appeal ensued.

The Court affirmed the Board. A workers compensation claim for psychic injury stemming from work -related stress is not compensable if it was a direct Consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taking in good faith the employer (Workers Compensation Law § 2 [7]; accord Matter of DePaoli v Great A & P Tea Co.,94 NY2d 3 77, 380 [2000]; see Matter of Brickner v New York State Dept. of Trans., 284 AD 2d 82 9, 82 9 [2001], lv denied 98 NY2d601 [2002 ]). Claimant, however, was not accused of wrong doing by the employer. Instead, her mental injuries stemmed from the serious financial liabilities she incurred as a result of a review of the employer s reimbursement practices. Inasmuch as that audit was not aimed at claimant, substantial evidence supports the Board s determination that her resulting mental injury was not the direct consequence of a disciplinary action or work evaluation (Matter of DePao v Great A & P Tea Co., 94 NY 2d at 380; see Matte r of Veede r v New York State Police Dept.,86 AD 3d 762, 763-764 [2011]; c f. Matter of Kinney v Prudential Ins. Co., 270 A D2d 781, 782-783 [2000]).

Additionally, we will not disturb the Board s determination that the stress that claimant experienced was greater than that generally experienced by similarly situated worker s in a normal work environment, as that factual finding is supported by substantial evidence (compare Matter of Young v Pentax Precision Instrument Corp., 57AD3d 1323 , 1324 [2008]). The stress from being advised that she was responsible for taxes and penalties on over $100,000 of imputed income due to her employer s mistaken reimbursement practices, with no wrongdoing on her own part, along with her knowledge that she was not financially in a position to handle that substantial liability , was not a normal occurrence in the work place and exceeded the typical stress associated with claimant s position (see Matter of Smith v Albany County Sheriff s Dept., 82 AD3 d 1334, 1335 [2011],lv denied 17 NY3d 770 [2011] ). li v Great A & P Tea Co., 94 NY 2d at 380; see Matte r of Veeder v New York State Police Dept., 86 AD 3d 762, 763-764 [2011]; c f. Matter of Kinney v Prudential Ins. Co., 270 A D2d 781, 782-783 [2000]).

The Court had a dissenting opinion in this matter. The dissent stated, I none the less am of the view that claimant s resulting workers compensation claim has its genesis in and is the direct consequence of a lawful personnel decision involving a disciplinary action. .. taken in good faith by the employer (Workers Compensation Law § 2 [7]; see Matter of DePaoli v Great A & P Tea Co., 94 NY2d 377, 380 [2000] ). For that reason, I am of the view that the under lying claim is barred by Workers Compensation Law § 2 (7). Additional ly, I am not persuaded that the stress experienced by claim ant here was greater than that incurred by similarly situated worker s in a normal work environment (see generally Matter of Spencer v Time Warner Cable, 278 AD 2d 622, 623 [2000] , lv denied 96 NY2d 706 [2001] ). Simply put, employees receive distressing news at work each and every day be it the denial of a long-awaited vacation or promotion, the assumption of additional duties without a corresponding increase in salary, the assignment to a new supervisor or department or, as in this case, unforeseen tax consequences associated with the employee s compensation. While such bad news, in turn, may prompt an employee to become sufficiently upset to walk out of his or her workplace and never return, it does not necessarily entitle the employee to workers compensation benefits and, in my view, an award of benefits is not warranted here. Accordingly, I would reverse the Workers Compensation Board s decision.

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