A. THE CARTER AND DEZIEL DECISIONS
In order to fully understand the current status of stress claims in Michigan, it is important to review the history of such claims in this state. A logical place to begin this review is with the landmark 1960 Michigan Supreme Court decision in Carter v. General Motors Corp.56 Prior to the issuance of that decision, case law in Michigan had already firmly established the compensability of both physical injuries due to sudden mental stimuli and mental disabilities due to physical injuries, however minor. However, Carter was a revolutionary step toward greater compensability. Not only did the Carter court accept the concept of compensable mental disability due to mental stimuli (the so-called "mental-mental" cases) -- it was also the first state case in the nation to accept the concept of compensable mental disability arising out of gradual workplace stress.
The claimant in Carter was a machine operator. After a lengthy layoff, the plaintiff was transferred to a "hub job," which required him to take a hub assembly from a nearby fellow employee's table to his own workbench, remove burrs with a file and grind outholes in the assembly on a conveyor belt. Plaintiff was unable to keep up with the pace of the job unless he took two assemblies at a time to his workbench, and he feared another layoff should he prove unable to do this work satisfactorily. He was repeatedly instructed by his foreman not to take two assemblies at a time because the parts became mixed up on the conveyor belt when he did so. However, the plaintiff continued having trouble doing the job correctly. When he took only one hub assembly at a time, he fell behind. When he fell behind, he took two assemblies, but then got the assemblies mixed up and was berated by the foreman. This dilemma resulted in an emotional collapse requiring hospitalization and shock therapy.
The court acknowledged that this case did not involve a psychosis resulting from a single fortuitous event, nor a psychosis resulting from a direct physical blow to the plaintiff's body. "Instead, there is involved a psychosis claimed to be the result of emotional pressures encountered by plaintiff daily in the performance of work."57 Indeed, the court pointed out that the plaintiff's disability was caused by emotional pressures produced by production line employment not shown to be unusual in any respect--"that is, not shown by him to be any different from the emotional pressures encountered by his fellow workers in similar employment."58 Characterizing the question as whether industry must bear the economic burden of such a claim, the court, after an extensive review of Michigan precedents and case law from other states, concluded that mental injuries due to gradual everyday psychological pressures should be treated no differently than physical injuries due to gradual everyday physical pressures, and therefore said "yes" to the question of compensability.
With one grand gesture, the Michigan Supreme Court thereby pushed Michigan to the absolute forefront in the awarding of mental disability benefits, opening up a wide expanse of potential claims for workplace stress, without much apparent consideration having been given to the extreme difficulties attached to trying to measure mental "injuries," as opposed to physical "injuries." The court simply established the logical and outwardly fair standard that proof of workplace contribution to an injury, even if in the sphere of the mind instead of the body, should be compensable, regardless of whether it was sudden or gradual, unusual or common. As the court viewed it, if factual workplace causation can be proven, such injury should be compensated. The nature of such proof was left to future analysis.
The culmination of this analysis of proof came with the dramatic 1978 Supreme Court decision in Deziel v. Difco Laboratories, Inc (After Remand)59, considered by many (if not most) commentators to be the single most liberal mental stress decision in American legal history. It appears that no other state has adopted the standard established in Deziel in total, with even extremely liberal states like California and Oregon stopping short of complete adoption. If one were to believe the majority of analysts reacting to this decision, especially in the first years after its release, the heavens came crashing down the day the court issued its opinion in Deziel. As will be discussed further a bit later in this report, this author does not agree with those critics who view the Deziel decision as somehow absurd or outrageous. Indeed, this author views Deziel as a very logical and sensible attempt to extend the worker's compensation tradition of compensating factually proven workplace injuries into the new area of mental stress. The problem with Deziel rests not in its theory, but in its consequences. In any event, Deziel was viewed as an aberrant legal development by most commentators, and especially by public policy makers who rushed to make statutory corrections.
The history of Deziel is actually quite long and torturous. Although this history is of great interest to lawyers, a quick summary of what preceded the 1978 decision is sufficient for the purposes of this report. Deziel was the consolidation of three separate cases, involving 1) a laboratory worker who first had glass get into her eye after she dropped a test tube and then had iodine splatter in her eye after she dropped another, allegedly causing anxiety, headaches, tiredness and nausea (Deziel v. Difco Laboratories, Inc), 2) a stamping machine operator who, after suffering a back injury and a brief time off from work, complained of continuing pain in his back and neck and an inability to move as a mental condition (Bahu v. Chrysler Corp), and most interesting of the set, 3) a sixty-five year old retired laborer who had a job requiring him to count and ship back defective parts to vendors, and who became irritated and nervous because the afternoon shift workers would take defective parts and install them in new cars, causing him to worry about the safety of the new cars (MacKenzie v. Fisher Body Division, General Motors Corp). In the last of these three cases, plaintiff's psychiatrist testified that his patient suffered from a long standing personality defect (compulsive perfectionism) and that the pressures of the job reacted with this defect to produce a mental disability.
In all three cases, the administrative appeals body of the time, known as the Appeal Board, reversed benefit awards given by the original referees. The Court of Appeals accepted review of the MacKenzie case and affirmed the Appeal Board's denial of benefits.60 The Supreme Court took up all three cases and, in a majority opinion written by Chief Justice Kavanagh61 in 1975, declared that the appropriate standard was whether employment aggravated, accelerated or combined with an internal weakness or disease to produce the disabling injury, and that a subjective standard had to be used to determine whether the injury arose out of the employment. All three cases were sent down to the Appeal Board for additional analysis. The second time around, the Appeal Board awarded benefits in Bahu, but refused to grant benefits in Deziel and MacKenzie. In the latter case (of the compulsive perfectionist), the Board determined that the disability arose from an imagined stimulus existing only in plaintiff's mind, and that the resulting disability could therefore only be attributed to plaintiff's already existing mental illness, not to his employment. These three determinations then returned to the Supreme Court for issuance of the controversial 1978 Deziel opinion which caused so much negative reaction.
Justice Moody, Jr., writing for the majority in Deziel, established the following basic standard of proof for a mental stress case:
We hold, as a matter of law, that in cases involving mental (including psychoneurotic or psychotic) injuries, once a plaintiff is found disabled and a personal injury is established, it is sufficient that a strictly subjective causal nexus be utilized by referees and the WCAB [Appeal Board] to determine compensability. Under a "strictly subjective causal nexus" standard, a claimant is entitled to compensation if it is factually established that claimant honestly perceives some personal injury incurred during the ordinary work of his employment "caused" his disability. This standard applies where the plaintiff alleges a disability resulting from either a physical or mental stimulus and honestly, even though mistakenly, believes that he is disabled due to that work-related injury and therefore cannot resume his normal employment.62
Justice Moody emphasized that the focal point of this standard was the plaintiff's own perception of reality, and he acknowledged that such a standard is readily subject to the dangers of malingering, shamming and fraud. Yet the justice reasoned that such a standard was required because any objective causal nexus standard would not suffice when examining a mental disability case, it being impossible to weigh the causal significance of any one factor. In effect, Justice Moody was saying, since the human mind and the many complexities of causation cannot be objectively measured, only a pure subjective standard makes any sense. "The only conceptually sound method for analyzing psychoses or psychoneuroses is to recognize that these illnesses constitute, by definition, subjective injuries and disabilities. As such, they only exist within the mind of their unfortunate victims."63
In a quite accurate summation of the medical understanding as to the nature of mental disabilities, the majority criticized those factfinders who think they can determine real objective factual causation in a mental case. The court explained that any attempt to do so results in a manipulation of the causal nexus in order to reach a mere ad hoc decision. The majority quite reasonably argued that all people manufacture their own concepts of reality, and that the difference between "normal" and "abnormal" persons is merely the difference between those that manufacture a reality closely resembling that of the average individual and those that manufacture a more unique view of the world. Consequently, if a person creates a reality in which the workplace produces disabling injury, then the workplace has in fact, for that particular person, produced such injury.
Citing the Carter decision, the majority ruled that Michigan precedent required using the subjective standard, and argued further that a liberal construction of Michigan's worker's compensation statute--required due to the "remedial" nature of the statute--necessitated use of the subjective standard. In the case of plaintiff MacKenzie, who became disabled because of his preexisting compulsive psychological makeup, use of this standard meant the granting of compensation, since he honestly, although perhaps mistakenly, perceived the cause of his disability to be the pressures of working with defective parts.
Justice Coleman wrote a blistering dissent, arguing that the majority's standard was "no standard at all in the reality of application. In cases where the 'disability' and 'personal injury' are established, the majority's test for causal nexus would result in an award of compensation for virtually all, if not all, claims based on mental disorders."64 The dissent suggested that all claimants would use their jobs as a convenient "hook" upon which to hang all their troubles and that the subjective standard established by the majority would thus inevitably result in employer liability for every stress situation. The dissent also suggested that neurotic personalities would be predisposed to "honestly perceive" work as the cause for their disability, making any connection to true workplace causation even more tenuous. Justice Coleman concluded that "[t]here is no doubt that the decision today will be a costly burden to Michigan employers, small and large, who compete with out-of-state business and to the consumers who absorb those costs."65
The reaction to Deziel was swift and extraordinarily negative. Newspapers such as The Detroit News warned that under the new honest perception standard, "it is no longer necessary to establish factually that a working condition or a job-related event caused or even aggravated a mental disability. If the worker testifies that he is unable to perform a task, he is judged disabled."66 University of Detroit Law Professor Lawrence Joseph wrote that the majority's standard "clearly does not conform to medical reality because it does not factor into account the necessary dimension of employment contribution to mental disabilities. Rather, it is based on an evaluative policy preference of the court. . . . By giving determinative weight to the subjective personal factor in a mental disability case, some claimants, who may not be genuinely entitled to compensation because their employment did not aggravate their susceptibility to a mental disability, may receive compensation."67 In a Detroit College of Law Review article, Derik R. Girdwood suggested the following specter:
Under the Deziel standard, if a hypothetical claimant honestly, but erroneously, believed that the company he worked for was a Communist spy base, that the female supervisors conspired to kill him, and that the male workers in his plant were slowly being replaced with alien look-alikes, then he could receive workers' compensation benefits provided he was found disabled.68
Criticism of Deziel was equally strong across the nation. For example, Dr. Eric Marcus wrote "A professor of psychiatry would be incredulous to learn that such an oversimplified understanding of human nature actually became the basis of a state supreme court decision."69 Anthony Stiegler, arguing that the Michigan test was no test at all because it results in the effective abrogation of the requirement that a claimant prove a causal link between his job and his disability, commented:
The subjective test of causation is troublesome, however, because it produces an overinclusive category of compensated claimants - both those claimants who suffer a work related disability and those who do not but are compensated anyway. Since the subjective test produces an overinclusive category of compensated claimants, employers, and ultimately consumers, unjustifiably support a large portion of the community's mentally ill. While this may be a desirable goal, it is inappropriate and unfair to use the statutory workers' compensation scheme to effect this redistribution of wealth.70
Even the Michigan Court of Appeals was critical. In Bentley v. Associated Spring Co.71, the court warned of the "alarming possibility" that Deziel would make Michigan employers the general health insurers for psychiatric disabilities. The court also cautioned that "[i]n view of the financial gain - sometimes very substantial - any person who files a claim based on a psychiatric disorder will have strong motives to lie about his perception."
In light of this highly critical commentary, the question that must be asked is whether the focus on "subjective" versus "objective" standards hits the mark. After all, all mental disabilities are exclusively subjective. A mental injury exists only in the mind, and as we have seen, such injury is completely incapable of objective qualification and quantification. The majority in Deziel were quite correct. A mental injury only exists when a claimant believes there is one, and therefore, if a person thinks that work has contributed to or caused his or her disability, in a very real sense for that particular person, it has!
As was stated earlier in this report, the reasoning in Deziel is quite logical, representing a common sense extension of the idea of factual causation from the area of physical injuries to the area of mental injuries. The theory of mental distress described in Deziel is absolutely correct. The problem with Deziel, also quite correctly noted by its numerous critics, is that the logical extension of factual causation law to mental disability cases produces a sphere of potential recipients so extraordinarily large that it threatens to turn employers into universal mental health insurers--a consideration of great importance in an age where pop psychology makes it very acceptable to complain about every disagreeable aspect and pressure in life. Practically speaking, every person made unhappy by their jobs qualifies as a potential compensation recipient. As noted earlier, every person who works and is mentally disabled will have some workplace connection between work and the mental condition. Work will always play a role, but how much of a role is impossible to determine with any degree of certainty. Practically speaking, under Deziel, every worker who becomes mentally disabled should recover benefits.
At its heart, the criticism of Deziel is thus based upon the value assessment that not all mentally distressed individuals should recover compensation benefits. These critics want something more than just the subjective meanderings of a less-than-average person. They want a firmer sense, from the standpoint of a reasonable person, that work contributed actually and significantly to the mental distress of a claimant, and that the claimant's reaction was not too weird or unusual. However, since true factual causation cannot be objectively determined in the mental setting, and because it is distinctly possible that a very normal workplace event might truly have sent a very abnormal person into a state of mental disability, what the advocates of an "objective" standard are actually arguing for is the use of values to limit the class of individuals that can recover for a stress claim. It is for this reason that such tests as sudden stimuli or unusual stress or wrongful employer acts are apparently so often suggested as better alternatives by critics of the wide-open Deziel standard.
Because of the concern about the potential opening of the floodgates for stress claims, the political pressure to take some type of action was certainly substantial. A powerful and effective Business and Industry Reform Coalition alleged that Deziel had gone to "absurd lengths in expanding the coverage of Workmen's Compensation" and that "legislative correction [was] urgently needed."72 With legislation effective January 1, 1982, such correction took place.
B. THE STATUTORY STANDARD AND THE GARDNER DECISION.
Michigan's worker's compensation statute now makes the following special provision for mental disability claims:
Mental disabilities . . . shall be compensable if contributed to or aggravated or accelerated by the employment in a significant manner. Mental disabilities shall be compensable when arising out of actual events of employment, not unfounded perceptions thereof.73
There can be no doubt that "the purpose of the legislative amendments was to prevent the overinclusiveness of compensable mental disability benefits."74 The statutory language clearly reflects the preference for the values of mathematical probability, fault, and reference to the average person. The first value is most obviously reflected in the "significant manner" test, while the latter two values are most obviously reflected in the "actual events . . . not unfounded perceptions" test.
However, a major problem is readily evident when looking at this language: It is not very precise. It leaves extraordinary room for judicial maneuvering. It does not explicitly reject the subjective standard of Deziel. Such problems were immediately recognized by legal commentators. Professor Joseph75, for example, explained that the purpose of the "actual events" test was to be exclusionary and that the purpose of the "significant manner" contribution test was to alter the normal standard whereby a plaintiff must only prove contribution by a preponderance of medically-based probabilities. However, as he properly points out, the language used does not necessarily accomplish either purpose to any effective degree. For example, "[i]f a subjective approach is adopted, the 'unfounded' nature of a plaintiff's perception of employment events must take into account his honest subjective perceptions of the event. Under this approach, actual events of employment will be found without difficulty." Even under an objective approach, "the existence of any actual event of employment will also not be difficult to prove." Professor Joseph concludes:
[T]he new standard presents the same conceptual, technical, and policy problems inherent in the judicial interpretation of the arise-out-of requirement. Under the new provision, a trier of fact must determine the causal relation between the employment and the mental disability in an aggravate, accelerate or contribute sense. Moreover, the statutory provision does not exclude the trier of fact from considering a plaintiff's subjective perceptions in making the aggravate, accelerate or contribute determination. The primary substantive issues in the Deziel decisions have not, therefore, been resolved. Any interpretation of the new statutory language will reflect an evaluative choice for or against compensation which a trier of fact must still necessarily make when the aggravate, accelerate or contribute type of standard is applied. In addition, the evaluative choice will again shift to the appellate courts the process of determining whether the decisionmaker's findings were either factual or legal. The mental disabilities provision does not appear to have relieved the intense controversy over the appropriate causation standard in mental disability cases.
Professor Joseph's concerns proved to be prophetic. The language of the new statutory provision was so broad that the Michigan Supreme Court had little difficulty bringing the law right back into the general sphere of Deziel and the wide-open potential of the subjective causation standard. This return to the Deziel of Deziel occurred with the decision in Gardner v. Van Buren Public Schools.76
Prior to the issuance of the Gardner decision, the Michigan Court of Appeals had issued quite a number of decisions interpreting the new statutory language, and it would appear that these decisions more faithfully reflect the intent of the Michigan Legislature, as opposed to the actual language of the statute. Some of these case are quite interesting and worth reviewing.
In Iloyan v. General Motors Corp77, the plaintiff assembler, replacement operator and repairman alleged being harassed by a foreman, who asked the plaintiff to do jobs in addition to his regular work. The particular incident focused on by the plaintiff occurred on a day when the foreman allegedly came up to him every ten minutes, asking him to do more. When the plaintiff complained, the foreman accused the plaintiff of being "baby-sat." The plaintiff testified that his nerves were "stirred up." He collapsed and was screaming, incommunicative and shaking. He had difficulty working thereafter and was removed from his job. The court reversed the awarding of benefits, holding that "[a]n effort to obtain compliance with production standards is not necessarily 'harassment.' Neither is setting a production standard necessarily a basis for finding a contribution to, or aggravation or acceleration of, a mental disability in a significant manner."
In Greenwood v. Pontiac Board of Education78, the plaintiff, who held various positions from office clerk to relief bus driver, alleged that she was harassed by her supervisors who assigned her to positions she did not care for. On what turned out to be her last day of work, she received a memorandum informing her that she would have to help shovel snow. According to the plaintiff, she "went to pieces." She was subsequently diagnosed as having a "major depressive disorder, non-psychotic, single episode." The court reversed the awarding of benefits and remanded the case, carefully making the distinction that the plaintiff was not claiming disability because she talked to her supervisor and had to shovel snow, but instead because she was harassed. The court concluded that if the events alleged by the plaintiff did not constitute harassment and were merely an unfounded perception that she was being harassed, she could not recover benefits under the new statutory provision.
In Bach v. Flint Board of Education79, the plaintiff secretary with a history of emotional problems alleged that stress at work caused a disabling psychosis and neurosis. She complained of such events as the school principal speaking to her harshly, feeling uncomfortable while voluntarily participating in a random job exchange for half a day and having to tell a substitute teacher that his services were no longer needed. She became upset when a job evaluation did not show improvement. The court affirmed the denial of benefits, noting that the meaning ascribed to events by the plaintiff was not accurate. For example, there was no evidence that the plaintiff's relationship with her principal actually deteriorated. the plaintiff was not entitled to benefits by application of the "unfounded perceptions" test, as viewed by a reasonable person.
In Boyle v. Detroit Board of Education80, the plaintiff art teacher and a heavy alcohol drinker alleged that rude, noisy and disrespectful behavior by his generally poor quality students and a lack of concern or cooperation from his superiors and co-workers produced disabling emotional stresses. On his last day of employment his drawing hand trembled uncontrollably. When he returned home that evening, he drank whiskey, lost control of himself, destroyed much of his property, and apparently attempted suicide. The court affirmed the denial of benefits, noting that although actual events occurred, they were nothing more than the general stresses faced by many teachers who were not disabled by those same stresses. The court explained that the statutory language "would become meaningless if the ordinary daily conditions and minutiae of employment were sufficient to support a mental disability claim. Thus, ordinary stresses of employment (existing in probably all jobs) are not sufficient to establish the required injury. . . An idiosyncratic reaction to the ordinary stresses of employment does not create the injury necessary to sustain a claim of mental disability." The court also explicitly rejected the plaintiff's claim that the "actual events . . . not unfounded perceptions" test was designed to address only the limited number of cases where an employee is delusional or hallucinates.
In the Court of Appeals' consideration of Gardner v. Ban Buren Public Schools,81 the plaintiff custodian, an unpleasant, probably threatening person and poor employee, alleged numerous examples of harassment by fellow employees and supervisors, many of them flatly denied by those involved. The only actual events substantiated were participation in a grievance hearing requested by the plaintiff and being checked up on by his supervisors. The court reversed the awarding of benefits, finding that it could not be stated objectively that the events alleged would affect an employee in a significant manner.
The most interesting of the pre-Supreme Court Gardner decisions is Sobh v. Frederick & Herrud,82 in which the Court of Appeals explicitly declared that the new statutory standard imposes an objective standard from the standpoint of the reasonable person. This decision involved two cases, the first concerning a meat cutter who claimed that he felt nervous and pressured about the way he was to fill out a sickness and accident claim form, the second concerning a dishwasher distressed by her co-workers' lax attitudes about getting their work done. The court denied benefits on both claims, explaining that the "significant manner" test required an objective analysis in which a hypersensitive employee is not entitled to compensation where the events alleged are insignificant in the overall psychiatric scheme. This was the first case under the new statutory language explicitly resorting to the average person standard for determining compensability.
By the time the Supreme Court finally took up the opportunity to interpret Michigan's statutory language, the Court of Appeals had already established a comprehensive scheme whereby claimants were expected to demonstrate unusual stresses not experienced by the average employee, with proof either of wrongdoing by the employer (such as actual harassment) or proof that an average person would find the events allegedly causing disability to be significant. "Actual events . . . not unfounded perceptions" meant accurately perceiving the nature and consequence of events, and "significant" meant of great consequence as viewed by a reasonable person. With Gardner, the Supreme Court rejected this conservative, limited-compensability interpretation of the statute, sending the standard for entitlement dramatically back in the direction of Deziel.
With Gardner, the Supreme Court took up the Court of Appeals' decisions in Gardner, as well as Bach and Boyle, and reversed the lower court in all three cases. The majority (consisting of four of the seven justices) explicitly rejected the objective person standard, even though it acknowledged that such an interpretation of legislative intent was possible. Justice Cavanagh, writing for the majority, reinstituted the subjective standard, focusing on the impact of workplace events on the particular subjective condition of the individual.
In providing its analysis of the statutory provision, the court majority first turned to the test of "actual events . . . not unfounded perceptions," and announced that the terms "actual events" and "not unfounded perceptions" mean the same thing, as opposed viewing the later term as qualifying the former. In apparent violation of normal rules of statutory construction, which would suggest that the Legislature would not be saying the same thing twice, the court explained that if compensation were prohibited for claims based on unfounded perceptions of actual events, the provision would make no sense, since what makes a person mentally disabled by nature involves having unfounded perceptions of reality. In short, the court reasoned, such an interpretation would wipe out most mental disability claims, and the court was not about to interpret the statute in such a manner, regardless of the true intent of the Legislature. The court thus concluded, in direct contradiction to the Court of Appeals and the apparent intent of the Legislature, that the "actual events . . . not unfounded perceptions" test only rules out compensation for imagined or hallucinatory events, not actual events wrongly or inaccurately perceived. As long as the event took place, no matter how inconsequential or how misinterpreted by the claimant, the first test of the statute has been met.
In interpreting the first test of the statute in this way, the court in effect wiped out any entitlement-limiting potential it may have had (and did have in a very substantial way under the interpretation given by the Court of Appeals). The court did this despite acknowledging that one goal of the statutory change was to restrict expansive judicial interpretations of mental disability cases under the worker's compensation act.
Turning to the second test, requiring proof that workplace events contribute to a claimant's mental disability in a "significant manner," the court acknowledged that the Legislature intended to correct the perceived Deziel problem of granting benefits to claimants without requiring a "factual causal connection" between the injury and the employment. The court explained that the new "significant manner" test forces a claimant to "actually prove a significant factual causal connection between the actual events of employment and the mental disability." The court provided the following interpretative standard:
Under the statutory standard, causation is determined by the factfinder. It is not determined by the honest, even if unfounded, perceptions of the claimant. In determining whether specific events of employment contribute to, aggravate, or accelerate a mental disability in a significant manner, the factfinder must consider the totality of the occupational circumstances along with the totality of a claimant's mental health in general.
The analysis must focus on whether actual events of employment affected the mental health of the claimant in a significant manner. This analysis will, by necessity, require a comparison of nonemployment and employment factors. Once actual employment events have been shown to have occurred, the significance of those events to the particular claimant must be judged against all the circumstances to determine whether the resulting disability is compensable.83
In establishing this standard, the court took care to note that the test for compensability remains subjective, in the sense that what matters is how events affect the particular person, as opposed to how events would affect the average person. The court reminded readers that a basic tenet of worker's compensation law is that the employer must take employees as it finds them, with all their preexisting mental and physical frailties. Thus, a preexisting condition does not bar recovery, nor does the fact that an event may seem trivial. "The issue is not whether a person of 'reasonable' or 'average' health would have been injured. It is whether a specific individual, regardless of preexisting conditions, sustained an injury that arose out of, and in the course of employment."84 Thus, even the most ordinary events can be deemed injurious to a predisposed individual.
The chief dissent in Gardner found this approach violative of the Legislature's intent in establishing the statutory standard. Justice Riley interpreted the statute to require a claimant to demonstrate, "as a matter of objective reality," the occurrence of an actual and traumatic event. She went further and argued that "[w]ithout a recognizable, stressful event or at least a physical manifestation of injury occurring close in time to the alleged event, it would be virtually impossible to determine with a fair degree of certainty whether the allegations of work-related injury are actualities or misperceptions in the absence of expert testimony on the matter."85 Here, the preference for imposing the value of mathematical probability is most readily apparent.
Since the Gardner decision, the Worker's Compensation Appellate Commission has had several opportunities to apply the statute to mental disability claims. Two are worth noting. In Berry v. Michigan Department of Education, the Commission attempted to explain how a magistrate should apply the "significant" contribution test in practice:
This standard requires a careful analysis of plaintiff's mental state at the time of the actual events, with a thorough evaluation of nonoccupational factors and the role they play in plaintiff's mental condition. It also calls for an objective determination by the Magistrate as to whether the actual events alleged to have occurred were "significant" from his point of view as the factfinder. The Magistrate must be careful to distinguish between events to which a claimant, because of his or her preexisting mental condition, attributes significance (which is not compensable), and events which actually, in the view of the objective factfinder, significantly contribute to a claimant's mental disability (which is compensable).86
In Mihalik v. General Motors Corp, the Commission emphasized the need to engage in a careful weighing process of non-occupational and occupational factors in determining whether the latter are "significant." Referring to the Gardner interpretation, the Commission explained:
This interpretation of the "significant manner" test provides important guidance to the factfinder. It provides a definition of "significant" which calls for a weighing process of occupational and nonoccupational factors. It makes clear that actual events of employment are not significant merely because they are the last events to trigger a disability, or because they are the coincidental setting for the furthering of preexisting mental conditions. Under the Supreme Court standard, the factfinder must carefully weigh all of the factors contributing to a claimant's mental disability and analyze the dimensions of any work-related factors. Under this weighing process, normal workday events, including everyday stressors, normal acts of supervision, and common employment decisions usually will not have the dimensions or weight to be deemed "significant" in comparison with important nonwork-related factors.87
So where does this leave the law of stress as this report goes to press? The review of the history of stress cases in Michigan shows the judicial institution of a pure subjective standard, followed by a less than clear imposition of value constraints on compensation by the Legislature and early lower appellate decisions, followed by another judicial pull back toward, but not entirely back to, pure subjectivity. We have not returned to the completely open-ended standard of Deziel, but we are closer than the Legislature thought we would be. The only thing keeping Michigan law from such a complete return to the Deziel standard is the requirement that the workplace contribution to a mental disability be "significant." Unfortunately, it is not at all clear what the term "significant" means.
So, turning one last time to the five examples discussed early in this report, Michigan law theoretically permits recovery of benefits by all five individuals. In all five cases, there are actual events, not unfounded perceptions thereof, as that test is interpreted by the Michigan Supreme Court. The only thing that limits potential recovery by all five individuals is the statutory requirement that work must have contributed to the mental disability in a "significant manner." In practice, the likelihood of recovery by these five individuals depends on the personal value preferences of the particular magistrate.
Sam, having seen his friend plunge to his death, is very likely to recover because there was a severe, singular traumatic event likely to disturb the average individual. Mildred, the victim of harassment, is very likely to recover because the employer committed a wrong. Juanita, who experienced a threat, may well recover, but a magistrate may be concerned about her non-occupational problems. Mary, the poor government worker, is less likely to recover because the employer did nothing wrong, the stress was not unusual, and her reaction was not very normal, although strong proof that distress was directly related to the poor performance evaluation would entitle her to benefits. John, the neurotic, is least likely to recover because his interpretation of events is so far removed from that of the reasonable person and based on so much preexisting baggage.
What does this tell us about the law in Michigan? Michigan's statute, as interpreted by Gardner, leaves factfinders with an impossible job--namely, to quantify the impact of work on an individual's mental condition. As the law now stands, factfinders must engage in educated guesswork (aided by psychiatric "experts") as to the role of workplace events in a claimant's inability to perform work. Inevitably, factfinders will be forced to use the value crutches we have discussed in order to do their work. Since they have no real ability to determine "significance" from an objectively quantitative or qualitative standpoint, they have no choice but to resort to their own personal policy preferences in order to make their determinations. This is what the "significant manner" test invites, yet this is exactly what the Supreme Court wanted to avoid in Deziel and is probably not what the Legislature had in mind when it created the statutory provision. It is simply the natural less-than-desirable practical consequence of the imprecise and open-ended language provided by the political process in response to this extremely complex and difficult area of law.
56361 Mich 577, 106 NW 2d 105 (1960).
57361 Mich at 581.
58361 Mich at 585.
59403 Mich 1, 268 NW 2d 1 (1978).
6048 Mich App 175, 210 NW 2d 357 (1973).
61394 Mich 466, 232 NW 2d 146 (1975)
62403 Mich at 26.
63403 Mich at 28.
64403 Mich at 48.
65403 Mich at 61.
66The Detroit News, July 12, 1979, sec. A, p. 18.
67Joseph, p. 1131, see footnote 24.
68Girdwood, p. 617, see footnote 4.
69Marcus, p. 429, see footnote 41.
70Stiegler, p. 661, see footnote 23.
71133 Mich App 15, 20-21, 347 NW 2d 784 (1984).
72Cited in Joseph, p. 1083, see footnote 24.
74Girdwood, p. 626, see footnote 4.
75Professor Joseph provides a thorough critique of the statutory provision at pp. 1134-1146 of his article, see footnote 24. The extended quote is from pp. 1145-1146.
76445 Mich 23, 517 NW 2d 1 (1994).
77187 Mich App 595, 601, 468 NW 2d 302 (1991).
78186 Mich App 389, 465 NW 2d 362 (1990).
79197 Mich App 247, 494 NW 2d 815 (1992).
80197 Mich App 255, 260-261, 494 NW 2d 818 (1992).
81197 Mich App 265, 494 NW 2d 845 (1992).
82189 Mich App 24, 472 NW 2d 8 (1991).
83445 Mich at 47.
84445 Mich at 48.
85445 Mich at 66-67.
861994 ACO #482.
871994 ACO #631.