RAMP v. UNIVERSITY OF MASSACHUSETTS-LOWELL

McCARTHY, J.

Madonna Ramp is a forty one year old high school graduate who completed three years of college. After passing a written examination as well as physical and psychiatric examinations she began working for the University of Massachusetts-Lowell (UMASS) Police Department on February 14, 1993. Before relocating to Massachusetts Ms. Ramp had successfully completed a sixteen week course at a police academy and had been employed as a security guard and police officer in Michigan. Prior to training and working as a police officer she worked as an office manager. (Dec. 4.)

Her employment at UMASS began with two weeks of on-site training followed by one week at a training center. During the initial two week period the employee, and three other new officers, were introduced to Officer Paul Parent, president of the local union. Along with other sarcastic remarks about her gender, during this first meeting Officer Parent asked Ms. Ramp if she was the `token broad'. (Dec. 5-6.)

After returning from the training center week Ramp was initially paired with Parent. They rode together in a police cruiser. Parent's aggressive verbal manner and his driving style frightened Ramp. (Dec. 6.)

While Parent was not the employee's supervisor, he often acted as shift commander, which meant that in the absence of a senior officer, Parent would assign patrol officers to different areas and assist the officers in completing their duties. (Dec. 6.)

As time went on, Parent was increasingly harsh towards Ramp and made frequent derogatory remarks about her gender. He repeatedly called her profane names and stated that she would not last on the job for three months (the first three months of her job were deemed a probationary period). Parent was also an expert in the use of a service baton and on many occasions purposely intimidated Ramp by striking the wall or door jamb with his baton in a menacing fashion while Ramp stood nearby. On one occasion Parent used the baton in making an obscene gesture toward Ramp in the presence of three other officers. Ramp complained to co-workers and her supervisor, Sergeant Theokis, all of whom attempted to reassure her and to downplay the significance of Parent's actions. (Dec. 6, 7.)

During her last month of employment at UMASS, the employee was not sleeping well. When she did sleep she often experienced nightmares. She was also depressed much of the time. Once in May, 1993, her last month at work, Parent sternly reprimanded Ramp for failing to correctly lock some doors the prior evening. He screamed, shook his fist, pointed his finger in her face and slammed his service baton against the wall. Ramp became upset and went home sick. (Dec. 7.)

The final incident came on May 26, 1993 when Parent reported to the sergeant that Ramp had left a door unlocked. Ramp felt that she had been "set up". She has not returned to work since that day. (Dec. 8.)

The employee sought treatment with her primary care physician who referred her to a psychiatrist. She continues to receive psychotherapy and takes prescription medications. Prior to her UMASS employment Ramp never had psychiatric treatment or counselling nor had she taken psychiatric medications. (Dec. 8.)

After several therapy sessions with her psychiatrist the nightmares and flashbacks subsided. She continued to have difficulty sleeping, eating and concentrating and remained preoccupied with thoughts of the traumatic events she had experienced in the course of her employment. (Dec. 9.) She felt uncomfortable around people, easily frightened and displayed a `startle response' when approached from behind or when hearing a noise. (Dec. 9.)

Ms. Ramp's condition improved so that she was able to take a long driving trip by herself in November and another trip in December, 1993. In January, 1994, she attempted part-time employment as a counter worker at a Dunkin Donuts where she performed satisfactorily for seven weeks. She eventually ended her employment at Dunkin Donuts because police officers frequented the establishment causing her to recall her work experience at UMASS. (Dec. 9-10.)

Since terminating her employment at Dunkin Donuts she has read the want ads. Once she traveled to the premises of a potential employer but felt paralyzed upon arriving at the building and was unable to proceed with the interview. (Dec. 10.)

The employee filed a claim for benefits which the self-insurer resisted. Ms. Ramp appealed the conference denial of her claim and a full evidentiary hearing was held. The decision includes five general findings, three of which are the source of the employee's appeal. Those findings follow.

1. I find that the employee, Madonna Ramp, suffered an emotional injury as a result of a series of acts of harassment and intimidation which occurred during the course of her employment with the employer, . . . . These acts of harassment and intimidation were performed primarily by a fellow officer, Paul Parent.

3. As a result of her work injury, the employee is and has been partially disabled from employment from January 17, 1994 and continuing. During this time, she has had an earning capacity of $100.00 per week.

5. The employee has failed to establish serious and willful misconduct by the employer sufficient to warrant an award of double benefits under Section 28.

(Dec. 14-15.)

The reviewing board's authority is fixed by § 11C. We may affirm summarily or by a decision discussing the merits of the appeal. We must reverse when we determine that the judge's decision is beyond the scope of his authority, arbitrary or capricious or contrary to law. The third and final course open to us allows recommittal to an administrative judge for further findings of fact when we think it appropriate. We reverse the judge's finding on extent of incapacity because we believe he erred in his application of the § 11A opinion. On recommittal it is also appropriate that further findings be made on the issue of who supervised Ms. Ramp.

A seminal issue in this case is who, if anyone regularly exercised powers of superintendence over Ms. Ramp.

Section 28 states, in pertinent part:

If the employee is injured by reason of the serious and willful misconduct of an employer or of any person regularly intrusted with and exercising the powers of superintendence, the amount of compensation hereinafter provided shall be doubled. . . .

(St. 1986, c. 599, § 45, effective December 17, 1986.)

In O'Leary's Case, 367 Mass. 108, 115-116 (1975), the court noted that the word "regularly" is subject to different meanings in different contexts and, as used in § 28, it is "simply designed to distinguish between a mere fellow worker whooccasionally acts in a limited supervisory capacity and a person who is officially designated by the employer as the person in charge of a particular facet of the employer's business and who is actually engaged in a supervisory capacity at the time of the employee's injury." Id., at 114. (Emphasis added).

Unlike most physical injuries a mental or emotional injury is often not a single isolated event but rather a series of events over a period of time. Requiring that the actor(s) be exercising powers of superintendence at every instance of misconduct should not be necessary in the arena of mental/emotional injuries. Regularly intrusted does not mean always intrusted.

It appears uncontroverted from the record and the judge's decision that the first three months of her employment Ms. Ramp was a probationary employee. As she ceased work after three and one-half months, she was on probation when virtually all of the claimed incidents occurred. Her probationary status would appear to make her especially vulnerable. Whether her probationary status meant that a patrol partner was "intrusted with" and "exercis[ed] powers of superintendence" is another area appropriate for further findings.

The findings about superintendence of Ms. Ramp appear inconsistent. Key portions follow.

Officer Parent was not the employee's supervisor, but often he acted as shift commander . . .

[Ramp and Parent] often worked together on the same shift . . .

. . . Officer Parent . . . often [made] derogatory remarks . . .

He repeatedly called her profane names and stated that she would not last on the job for three months (her probationary period).

On many occasions, Officer Parent purposefully intimidated the employee. . . .

. . . Officer Paul Parent performed many intentional acts harassing and intimidating the employee, which caused her to suffer emotional injury. At times, Officer Parent exercised powers of superintendence in his position as acting shift commander.

(Dec. 6-7, 12-13.) (Emphasis added).

Concluding this portion of the decision the judge made the following finding.

The evidence does not establish, however, that he was acting in his position as shift commander at all or even many of the times when he inflicted injury upon the employee. Thus, it has not been shown that Officer Parent was exercising powers of superintendence at the time of his misconduct causing injury. (first emphasis added, second emphasis in original) See O'Leary's Case, 367 Mass. 108, 115-116 (1975).

(Dec. 12-13.)

This finding seems at odds with the earlier quoted findings. It is appropriate that the judge clarify his findings on this issue.

Also missing in the decision are any findings regarding the actions of Sergeant Theokis, Ramp's supervisor. Both the employee and Sergeant Theokis testified about a photograph of Ramp taken by Theokis which he hung in his locker, allegedly beside a nude picture. (Tr. I, pp. 86-87, Tr. II, pp. 110-112.) There was also evidence of conflicting job performance reports made by Theokis which were not addressed by the judge. The first report, written May 6, 1993 during Ramp's probationary period, was positive in all aspects. The second, written June 23, 1993, one month after she had left work and had filed a sexual harassment complaint, was totally negative in all categories. (Employee exhibit 8, Insurer exhibit 1; Tr. II, pp. 98-109.) It would be appropriate for the judge to make findings as to whether both of these reports were prepared in good faith.

Finally, May 26, 1993, the employee's last day of work was not without incident. The administrative judge described it thus:

. . . On [May 26, 1993], the employee apparently had left the door to the music building unlocked, and an intruder had been seen on the premises. Officer Parent reported this incident to the sergeant, blaming the employee. The employee felt that she had been `set up.'

(Dec. 8.)

Since this was the last in a series of incidents that the employee claims caused her emotional incapacity, it would seem to have special significance. It would be appropriate then for the judge to make findings on exactly what happened and whether the employee was indeed "set up."

Now we turn to the issue of lost earning capacity. The employee was awarded a closed period of § 34 total temporary incapacity benefits followed by ongoing § 35 temporary partial incapacity benefits. She argues that the medical evidence supported an award of ongoing § 34 benefits.

The medical evidence consisted of the report and deposition of the § 11A examiner, Dr. Gary Prince, a Board certified psychiatrist. Dr. Prince interviewed Ramp on February 1, 1994 and opined that she suffered from post-traumatic stress disorder, clearly causally related to events occurring during her employment at UMASS. He concluded that her emotional state temporarily disabled her from any work. When told that Ms. Ramp worked as a counter person at a Dunkin Donuts between January and March, 1994, Dr. Prince stated that his opinion as to her medical disability was not materially affected. (Dec. 10.) Dr. Prince explained his opinion thus:

"Her body was there, she was working after a fashion, but it seems to me that she couldn't possibly be expected to discharge her responsibility in a job on a regular basis for any period of time."

(Prince dep., p. 15, 11.12-18.)

The judge adopted Dr. Prince's opinion on causal relation but rejected that part of the opinion finding her totally disabled because she was working when Dr. Prince interviewed her and continued to work for seven more weeks. (Dec. 11-12.) We think this was error.

When an employee suffers a physical injury the medical disability caused by that injury is most often expressed in terms of percentage loss of function of the injured bodily member. A judge is then able to factor in the extent of the physical limitation as he calculates the economic impact of the medical loss. For example, a fifty percent loss of use of the right lower extremity may have disastrous economic consequences for a manual laborer but result in no diminution of earning capacity for a laboratory researcher.

The incapacitating effect of mental disabilities is not as easily amenable to the same analysis. Dr. Prince's medical opinion that Ramp's mental injury completely disables her fromany employment cannot be overridden by the judge's lay opinion, however well considered. In this case, the administrative judge had no choice but to adopt the prima facie opinion of the § 11A examiner where no other medical opinion was in evidence.

We return the case to the senior judge with the request that he reassign it to the administrative judge for further findings consistent with this opinion. At the hearing judge's discretion, additional evidence may be taken prior to refiling his decision.

So ordered.

__________________________ William A. McCarthy Administrative Law Judge

__________________________ Susan Maze-Rothstein Administrative Law Judge

__________________________ Suzanne E.K. Smith Administrative Law Judge

Filed: February 6, 1997