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November 16, 1983


Appeal from a judgment of the circuit court for Waukesha county: Harold J. Wollenzien, Judge.

Petition to review denied.

Scott, C.j., Brown, P.j., and Robert W. Hansen, Reserve Judge.

The opinion of the court was delivered by: Brown

This is a worker's compensation case. The Labor and Industry Review Commission found that an employee, Michael Joseph, sustained an employment-related mental injury, nontraumatically caused. The employer correctly states the law that such claims may not be allowed, as a matter of policy, unless resulting from "a situation of greater dimensions than the day-to-day emotional strain and tension which all employees must experience." *fn1 The employer argues that this case does not meet that standard. We hold otherwise and affirm.

The employer, International Harvester, first quarrels with the findings of fact. The employer realizes that a determination as to the cause of a disability is a question of fact, and departmental findings in regard to causation are conclusive upon this court if supported by substantial evidence. Princess House, Inc. v. DILHR, 111 Wis. 2d 46, 54, 330 N.W.2d 169, 173-74 (1983). It claims, however, that certain important findings are not supported by any credible evidence, and if these findings are not supported, then no "situation of greater than normal dimensions" has been shown. We rule the findings are supportable.

The record discloses that on February 25, 1975, Lowe Jones, a co-worker and friend of Joseph's, was splashed with molten metal causing his hair and clothing to catch on fire. Joseph testified that he observed the man in flames and visited Jones in the hospital. Jones died on April 6. After Jones' accident, Joseph occasionally performed the same type of iron-pouring duties that Jones had been performing at the time of the accident.

Subsequent to the event, Joseph's behavior began to change in that he exhibited prolonged periods of quietness, crying and nightmares. Joseph's last day of work was August 5, 1975, with the exception of an unsuccessful attempt to return from June 1 to June 3, 1976. He has been diagnosed as a marginally functioning paranoid schizophrenic.

The causation findings challenged by the employer reads as follows:

As of February 25, 1975 the applicant was not psychotic. However, the above events, including aiding the co-worker getting the iron pourer job, witnessing the burning event, visiting the charred employee in the hospital, such employee's death and the applicant's returning to work on the iron pourer job caused the applicant's psychotic condition. Such events created applicant's psychotic breakdown.

The employer first challenges the finding that Joseph aided his co-worker in obtaining the iron-pourer job. Notwithstanding the employer's testimony that workers have no input into a co-employee's job assignment, there is still credible evidence to support the finding. Joseph was a union steward. He testified he could have used his influence to deny the deceased the new position. This is because the chosen party was picked from a list of interested employees. Had Joseph sought out and found a person equally or more qualified than the deceased, perhaps the employer would have picked that person instead. The finding is based on evidence in the record that Joseph felt responsible for the deceased.

The employer next claims that Joseph could not have witnessed the burning event from where he was stationed. The employer is splitting hairs. Joseph admitted being in a different area, but he saw the man in flames. That is all that is necessary.

Finally, the employer contends that Joseph did not return to the iron-pourer job as Joseph's iron-pouring work was in a different area of the foundry and on a different machine. This does not contradict the LIRC's finding that Joseph returned to work as an iron pourer. We accept the findings of the Commission.

Even if the findings are accepted as is, the employer claims that compensation for this nontraumatic mental injury is contrary to statutory intent, prior case law and public policy.

That recovery for nontraumatic mental injury in a worker's compensation action can be had, there is no doubt, and the employer admits as much. That was settled in Swiss Colony, Inc. v. DILHR, *fn2 which held that injury includes emotional stress without physical trauma if it arises from ...

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