COURT OF APPEALS DECISION DATED AND RELEASED September 26, 1996 |
NOTICE |
A party may file with the Supreme
Court a petition to review an adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2646
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
ROBERT M. BALISTRERI,
Plaintiff-Appellant,
v.
CITY OF MADISON,
DEPARTMENT OF EMPLOYE
TRUST FUNDS,
LABOR AND INDUSTRY
REVIEW COMMISSION,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Dane County:
ROBERT A. DE CHAMBEAU, Judge. Affirmed.
Before Eich, C.J.,
Vergeront, J., and Paul C. Gartzke, Reserve Judge.
PER
CURIAM. Robert Balistreri appeals from an order affirming a
decision by the Labor and Industry Review Commission. That decision denied Balistreri's claim for disability benefits
from his former employer, the City of Madison.
The issues are whether LIRC relied on inadmissible evidence, whether
substantial credible evidence supports the decision, and whether Balistreri was
denied a fair opportunity to present evidence.
We conclude that the disputed evidence was properly ruled admissible,
that it and other evidence constituted substantial credible evidence in support
of LIRC's decision and that Balistreri was not denied due process during the
evidentiary proceedings. We therefore
affirm.
Balistreri served
fourteen years as a Madison police officer, until he resigned in 1987. He then filed for a disability pension under
§ 40.65, Stats., as a
protective occupation participant, alleging that he was forced to resign due to
mental harm arising from extraordinary job-related stress.
During evidentiary
hearings before an administrative law judge for the Department of Industry,
Labor and Human Relations, Balistreri testified to numerous incidents that
caused him to experience, in his view, extreme levels of stress and
anxiety. These included a time in 1978
when he helplessly witnessed a friend's death in a burning car. Other incidents involved a series of
embarrassing and humiliating run-ins with a supervisor, Captain Morlynn
Frankey, occasions when he did not receive backup from other officers, and
times where he received unjustified reprimands or criticism from superiors. He testified that these incidents caused him
severe depression, nervous disorders, headaches, anxiety, insomnia, extreme
tension, blackouts and nightmares, alienation, and inability to function.
The City initially
retained Dr. Leigh Roberts, a psychiatrist, to evaluate Balistreri. After Dr. Roberts prepared his report, which
concluded that Balistreri did not suffer from a job-related disability, Dr.
Roberts lost his license to practice medicine.
The City then retained another psychiatrist, Dr. Michael Kaye. The findings and diagnosis in his written
report were very similar to Dr. Roberts', and he attached a copy of Dr.
Roberts' report to his. Over
Balistreri's objection, the administrative law judge admitted Dr. Kaye's report
with Dr. Roberts' attached, and allowed him to testify.
At the last of the
evidentiary hearings, Captain Frankey offered testimony disputing Balistreri's
description of many of their alleged conflicts. The administrative law judge then denied Balistreri an
opportunity to rebut Frankey's testimony.
In his decision, the
administrative law judge concluded that Balistreri "did not suffer from a
situation of greater dimensions than the day-to-day emotional strain and
tension which all police officers must experience." Accordingly, benefits were denied. Balistreri appealed to LIRC, which affirmed,
in substantial part based on Dr. Kaye's report and its finding that except for
the burning car incident, none of the incidents described by Balistreri amounted
to unusual stress. Balistreri sought reconsideration
and challenged the admission of Dr. Kaye's report and testimony because it was
tainted by its close resemblance to and association with Dr. Roberts'
report. LIRC found, however, that:
Dr.
Kaye's medical report ... is a careful and thorough psychological analysis of
the applicant, and his diagnoses and conclusions are explained in detail and
fully supported by his analysis and by the record submitted at the
hearings. The fact that his diagnoses
are very close to those of Dr. Roberts' does not render them incredible. While the commission disagreed with the
administrative law judge's exercise of discretion in even allowing Dr. Roberts'
report into evidence ... any error in admitting the report would be harmless
because the report was not relied on in making any finding. The fact that Dr. Kaye may have reviewed Dr.
Roberts' report and concurred with most or all of its conclusions does not
change the fact that Dr. Kaye's own psychological opinions were competent
and credible.
Balistreri
also sought reconsideration on whether he was denied due process when he was
not allowed to rebut Captain Frankey's testimony. The commission reiterated its finding that
"cross-examination of Captain Frankey was allowed, and the applicant had
previously given ample testimony regarding his version of events." On review, the trial court affirmed,
resulting in this appeal.
It is settled that
persons may claim disability benefits under § 40.65, Stats., for mental injury or harm
resulting from employment-related stress.
However, to be compensable, nontraumatic mental injury must have
resulted from a situation of greater dimensions than the day-to-day emotional
strain and tension all employees in the particular profession must experience. School Dist. No. 1 v. DILHR,
62 Wis.2d 370, 377-78, 215 N.W.2d 373, 377 (1974).
Review of LIRC's
decisions on § 40.65, Stats.,
disability claims proceed under the worker's compensation review
procedure. Section 40.65(2)(a). Under those procedures, review is limited to
whether the commission acted within its powers, the order was procured by
fraud, or LIRC's findings of fact do not support the order. Section 102.23(1)(e), Stats.
If LIRC's order depends on any finding of fact, we accept LIRC's
judgment as to the weight and credibility of the evidence on that finding. Section 102.23(6). We may, however, set aside LIRC's order if it depends on any
material and controverted finding of fact that is not supported by credible and
substantial evidence. Id. We disregard any error that does not
prejudice the claimant. Section
102.23(2).
LIRC properly admitted
and considered Dr. Kaye's report and testimony. Balistreri contends that Dr. Kaye's report and recommendations
were so similar to Dr. Roberts' that one can only conclude that "Dr.
Kaye's own thinking was impermissibly and irrevocably tainted." However, the commission concluded otherwise
after comparing the reports, and concluded that Dr. Kaye provided a
careful and thorough psychological
analysis of the applicant, and his diagnoses and conclusions are explained in
detail and fully supported by his analysis and by the record ... the fact that
Dr. Kaye may have reviewed Dr. Roberts' report and concurred with most or all
of its conclusions does not change the fact that Dr. Kaye's own psychological
opinions were competent and credible.
We
accept LIRC's determination on Dr. Kaye's credibility and on the weight
accorded his conclusions. Section
102.23(6), Stats.
There was credible and
substantial evidence to support LIRC's decision. As noted, LIRC found Dr. Kaye's report and testimony credible,
and accorded it substantial weight. Balistreri,
in effect, concedes that with Dr. Kaye's evidence, LIRC's decision is
sufficiently supported. The fact that
Balistreri introduced evidence from other experts who supported his claim is of
no consequence because LIRC chose not to accord any weight to their evidence.
Balistreri has not shown
that his due process rights were violated when he had no opportunity to rebut
Captain Frankey's testimony. He has not
offered proof as to what testimony he would have provided in rebuttal, nor how
it would have differed from his previous testimony. Nor has he shown how he would have benefited from offering
additional testimony. For purposes of
its decision, LIRC fully accepted his version of all the events during his
employment that allegedly caused him mental injury. He has therefore shown neither error nor prejudice from the administrative
law judge's decision.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.