Workers Comp, Yong Li’s Brief, Reviewing Board

2007年12月24日 10:11 上午

COMMONWEALTH OF MASSACHUSETTS

DEPARTMENT OF INDUSTRIAL ACCIDENTS

(Reviewing Board)

Employee: Yong Li

Employer: Raytheon Co.

Insurer: Raytheon Company

D.I.A. #: 04286804

EMPLOYEEE’S BRIEF

STATEMENT OF ISSUES PRESENTED ON REVIEW

Whether the Administrative Judge’s Hearing Decision was beyond the scope of his authority, arbitrary, capricious or contrary to law in denying the employee’s psychiatric claim.

STATEMENT OF THE CASE

The employee is a software engineer who worked at the Raytheon Company for a period of seven years prior to her leaving work on August 31, 2004 due to psychiatric injuries allegedly sustained as a result of her employment. The employee alleged that a supervisor, Jen Lewis had repeatedly stared at her in a hostile manner when the two were alone, causing the employee to feel threatened. The staring incidents occurred between January and August 2004. The employee also alleged that she had been emotionally traumatized as a result of a meeting at Raytheon’s human resources office that occurred on August 3, 2004, in which she was asked if she wanted to kill someone. The employee has not returned to work and has undergone several inpatient hospitalizations as well as ongoing treatment for her psychiatric condition.

PROCEDURE AND DISPOSITION

The self-insurer disputed liability and the employee’s claim was presented at Conference on September 29, 2005. A denial was issued and the employee timely appealed. A Hearing de novo was scheduled and testimony was taken over several days, concluding on March 6, 2007. In his Decision dated June 13, 2007, the Administrative Judge denied and dismissed the employee’s claim. The employee timely appealed.

FACTS

The employee was raised in southwestern China, the daughter of a college professor and a high school teacher. (Transcript p. 23) The employee first obtained a bachelor’s degree in meteorology and then a masters in geophysics, both at Chinese universities. (Transcript pp. 23-24) The employee worked in China for two years (Transcript p.25). The employee testified that she never experienced any emotional or psychiatric problems while in China. (Transcript p.26) The Chinese government then sent Ms. Li’s husband to England to obtain a Ph.D. and the employee accompanied him there. (Transcript p.26) In England, the employee found work, first as a library assistant (Transcript p.28) and then as a software engineer. (Transcript p.29) The employee testified that she did not experience any emotional difficulties during the seven years that she lived in England. (Transcript p.29)

In January 1998, the employee and her husband were recruited to come to the U.S. and work for Raytheon. (Transcript p.30) The employee was based at the Raytheon facility in Marlboro, MA but spent some time on assignment at Raytheon sites located in Sudbury, MA and in Virginia. (Transcript p. 32) The employee testified that from 1998 to 2000, she generally go along with her co-worker’s but there were a few minor problems such as being late for meetings. (Transcript pp.32-33) In 2001, Jen Lewis, a group leader that employee worked under, was promoted to manager and the employee testified that Ms. Lewis would blame her for things that went wrong. (Transcript pp.35-36) There was an incident in July 2001, where Jen Lewis became angry at Ms. Li for questioning her during a technical group discussion. (Transcript pp.35-36) The employee filed a racial discrimination complaint against Jen Lewis, which was investigated internally at Raytheon. (Transcript pp.41-42) The employee went to Virginia on assignment for ten months and came back to Marlboro in January 2004. (Transcript p.44) Upon her return to Massachusetts, Jen Lewis began staring at the employee in hallways and on footpaths between builds. The employee felt very scared during these encounters. (Transcript p.44) The staring incidents continued from Janaury 2004 to August 2004, the employee testified that the staring made her feel very unsafe (Transcript p.47) On July 29, 2004, the employee sent an e-mail to human resources stating that if anything happened to her or her family, it should not be taken as an accident. (Transcript p.50) The employee testified that she felt threatened and that she might be attacked. (Transcript p.51) On August 3, 2004, a meeting was set up, which included, the employee, two human resources officers and John Didio, a psychologist contracted by Raytheon. (Transcript pp.51-52) At the meeting, John Didio asked the employee (do you want to kill someone” (Transcript p.58) The employee testified that Mr. Didio became agitated and began questioning her further but her “head was muddy” and she couldn’t hear the questions. John Didio also began pointing at the employee. (Transcript p.58) The employee testified that Mr. Didio made her feel “as if she was raped” (Transcript p.58) Between the August 3, 2004 meeting and August 31, 2004, the employee experienced flashbacks at night, screaming and pushing items off her bed table. (Transcript p.68) During the day, at work, the employee would express herself by sending e-mails to members of the Raytheon Asian Pacific Association (Transcript p.68) On August 30, 2004, the employee sent an e-mail to the Raytheon CEO, stating that John Didio had used his professional skills to inflict mental torture on her and that this was “murder slowly”. The following day, on August 31, 2004, the employee was placed on administrative leave. (Transcript p.71) The employee began treating with a psychiatrist (Transcript p.76) and was hospitalized at Emerson Hospital in Concord, MA and also at Marlboro Hospital in Marlboro, MA. (Transcript pp.86-87)

ARGUMENT

1. The Administrative Judge’s findings were not adequately supported by the medical evidence relied on.

The Administrative Judge found that the events at Raytheon were not the predominant cause of Ms. Li’s disability. In so finding, the Administrative Judge adopted the medical opinions of Drs. Reade and Annunziata. However, neither doctor was able to opine within a reasonable degree of medical certainty, the cause of the employee’s psychiatric condition. In the Decision, Dr. Reade is quoted (from her report dated October 26, 2004) as stating “it is difficult to determine more precisely what is the basis for Ms. Li’s current difficulties functioning at work” and “it is also possible that Ms. Li suffers from an acute mental illness that is superimposed on longstanding maladaptive personality traits”. These opinions are speculative and not based upon any factual or clinical basis and are thus an insufficient basis for the Judge to find that the Raytheon event either were or were not the predominant cause. Similarly, Dr. Annunziata states in his report dated September 7, 2005 that “there is no family history of mental illness” and “there is no history of treatment by a psychiatrist or other mental health specialist, prior to 2004.” Dr. Annuziata notes that there are no problems with the employee’s sixteen year old daughter and is silient as to the marital relationship between the employee and her husband. Yet, Dr. Annunziata opines that “there is no substantial evidence that the psychiatric disorder is causally related to her employment at Raytheon Company, specifically, that there is no evidence that conditions of her employment were the predominant contributing cause of the disorder. In appears that the psychiatric disorder resulted in dysfunction at work, leading to her inability to continue”. This opinion cannot be valid within a reasonable degree of medical certainty because it fails to state the cause of the employee’s psychiatric condition, Dr. Annunziata then speculates that the employee had a non-work related psychiatric condition, which led to problems at work, but fails to identify a single cause for the disorder. This opinion and that of Dr. Reade cannot form the basis for the Judge’s finding that the events at Raytheon were not the predominant cause of Ms. Li’s disability. M.G.L. c. 152 §11A requires that an impartial physician provide an opinion within a reasonable degree of medical certainty. While Drs. Reade and Annunziata are not §11A physicians, the standard for expert opinion in a worker’s compensation case is that of a reasonable degree of medical certainty. Patterson v. Liberty Mutual, 48 Mass.App.Ct. 586, 592 (2000).

Admitted in to evidence, but not adopted by the Judge, was the report of Dr. Cutler, who

in his report dated March 30 2007 stated :”Given that the patient had no previous psychiatric history and denies ever seeing a psychiatrist or mental health professional prior to the episode of 8/3/04 with the Employee Assistance Program, I can state that the predominant contributing cause to her current psychiatric disability is the episode of 8/3/04.” In his Addendum dated April 5, 2007, which was also admitted into evidence, Dr. Cutler further stated “These incidences of staring and evil looks by Jen Lewis as portrayed by the patient are the predominant cause of the patient’s psychiatric disability as well as the episode of 8/3/04”. The Judge had before him, medical evidence which adequately commented on the issue of causation. While the Judge has the discretion to adopt the medical opinion that he chooses, that opinion must constitute an adequate basis for the conclusion ultimately reached by the Judge.

2. The Judge’s conclusion that the events at Raytheon were not the predominant cause of the employee’s emotional disability is not adequately supported by the evidence.

There was nothing in any of the evidence before the Judge to suggest that the employee was diagnosed with or treated for any prior psychiatric condition. In his Additional Subsidiary Findings, the Judge found that:

Ms. Li never had treatment related to stress or any other psychiatric treatment prior to August 31, 2004.
Ms. Li never had psychiatric problems growing up in China; she left China at the age of twenty-five.

Ms. Li never had psychiatric problems while living and working in England.

The Judge also made comprehensive findings regarding the employee’s allegations that

Jen Lewis stared at her in his Additional Subsidiary Findings:

When Ms. Li returned from Virginia to the Marlboro facility, on occasion, she and Ms. Lewis would encounter each other in the hallways or footpaths of the Marlboro facility. If no one was around when this occurred, Ms. Jen Lewis would stared at Ms. Li. These encounters occurred occasionally from January 2004 to August 2004.
Ms. Li thought her life would be in danger because of the staring at her by Jen Lewis.

Ms. Li felt physically threatened by Jen Lewis because of Jen Lewis’ staring at her.

In Alba v. Raytheon, 441 Mass. 836, 837 (2004), the Court explored the Administrative Judge’s findings and conclusions in an underlying Worker’s Compensation case. The Court validated the Administrative Judge’s finding that there was no substantial evidence in the medical records to indicate that an event or series of events in (Alba’s) employment with Raytheon was the predominant contributing cause of his suicide. In the instant case however, the record is replete with medical evidence that the employee had no prior psychiatric history and suffered a series of events at work which are the sole cause of her psychiatric condition. In fact, Judge Constantino specifically found that Ms. Lewis engaged in staring incidents on multiple occasions and that the employee was traumatized by those incidents. In sum, Judge Constantino found an absence of a prior psychiatric history, found that Jen Lewis stared at the employee and found that the employee was fearful as a result of the staring. The Judge’s conclusion that the events at Raytheon were not the predominant cause of the employee’s psychiatric condition is unsupported by any evidence to the contrary, either medical or factual.

It has been established that if there is only “one cause” identified which accounts for an

emotional injury, then the employee’s burden of proving that an event or series of events at work is the predominant cause of said injury, has been satisfied. Sawicha v. Archdioceses of Boston,14 Mass.Worker’s Comp. Rep. 362, 370 (2000), Bouras v. Salem Five Cent Savings Bank, 2004 Ma. Wrk.Comp. Lexis 24 (2004). In the instant case, neither of the adopted medical opinions, both solicited by the employer for it’s own benefit, identify any other cause for Yong Li’s psychiatric condition. In the absence of any other cause, the employee has thus satisfied her burden of proving that the events at work are the predominant cause of her emotional injuries.

3. The Judge’s conclusion that (with the exception of the staring incidents) the events at Raytheon were bona fide personnel actions is not adequately supported by the evidence.

The only other event, other that the staring incidents, that the employee alleged as the cause of her psychiatric condition is the August 3, 2004 meeting which was attended by the employee, Raytheon human resources personnel and psychologist, John Didio. The Judge found in his Additional Subsidiary Findings (p.16) that:

At the meeting of August 3, 2004, Mr. Didio asked Ms. Li if she “wanted to harm someone or to harm herself”. This question made Ms. Li upset and agitated.
Mr. Didio spoke in a way that would not alarm anyone.
Mr. Didio, Ms. Kolenski (human resources) and Mr. Didio did their best to make Ms. Li aware that the meeting of August 3, 2004 was for her safety and her help, but she was confused.

I find that Mr. Didio did not intend to harass Ms. Li, nor did he harass Ms. Li.

The employee testified as follows (Transcript pp.57-59):

A. Then John Didio was sitting there and asked
19 me, “Do you want to kill someone?”
20 Q. Okey. What was your response to that?
21 A. I felt very strange. I asked, “Do you mean
22 if I want to kill someone?” I asked, “Do you mean
23 if anyone wants to kill me?”
24 Q. What was Mr. Didio’s response?

58
1 A. He said, “No.” I asked, “Do you want to
2 kill someone?”
3 Q. And what was Mr. Didio’s demeanor or
4 attitude at the time?
5 A. I think when I responded by saying, “For
6 this question you should ask them, “ from then his
7 attitude changed.
8 Q. In what way?
9 A. Suddenly he became very exited and he
10 crossed his legs. He had a brown outfit and he
11 pointed at me and repeatedly asked, “Do you want?”
12 “Do you want?” Then my head was all filled very
13 muddy and I couldn’t hear the rest, and all I could
14 see is every time he repeated “Do you want?” “Do
15 you want?” He pointed at me repeatedly, and he
16 shift his head and look at me just like that.
17 The way he look at me was disgusting.
18 THE JUDGE: Is what?
19 THE WITNESS: Disgusting.
20 BY MR. SURRETTE:
21 Q. How did this make you feel? How did Mr.
22 Didio’s actions make you feel?
23 A. I felt as if I was raped.
24 Q. If I may, can I ask exactly what were you

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1 feeling? Why did you feel that?
2 A. Because I feel that he was like to me he
3 was like a predator meeting his prey, and I felt
4 like he was ready to leap to his prey.
5 Q. All right. At that point, you didn’t want
6 to talk to Mr. Didio anymore. Correct?
7 A. So at the time I said, “Stop it. I am the victim.”
8 THE JUDGE: I can’t hear you.
9 THE WITNESS: At the time I said to him,
11 “Stop it. I am the victim,” but this finger still
12 point at me. After that I said to him, “I do not

13 want to talk to you.”

As documented above, the employee testified that at the meeting, she felt as if she was being accused of wrongdoing when she had come to the meeting seeking redress for the staring incidents. The employee also felt that at the meeting, Raytheon was not concerned about her safety but rather as trying to stop her from expressing her concerns to co-workers. Although the Judge found the John Didio din’t intend to harass Ms. Li, the employee submits that what is important, is the employee’s reaction to Mr. Didio’s questions. The meeting was set up for the sole purpose of addressing Yong Li’s fear and anxiety over the staring episodes. As the Judge found that the staring incidents were not a bona fide personnel actions, the employee argues that the August 3, 2004 meeting itself falls outside the sphere of bona fide personnel action. The actions of John Didio (not a Raytheon employee), as taken by Ms. Li, would not constitute a bona fide personnel action. With respect to the employee’s allegation that John Didio pointed at her, Mr. Didio testified as follows (Transcript p.59):

By the time I got the words
“harming yourself” or as I was saying “others,”
she, in a loud voice, stated, “You think I’m a
murderer. I’m the victim.” And I recollect
that I said “no,” and I remember doing this
gesture and bending my head down and looking at
the floor.
THE COURT: What gesture,
Again? Can you repeat that?

THE WITNESS: I did that.

The transcript does not contain a more complete description of Mr. Didio’s gesture and the employee does not suggest that the Reviewing Board should speculate as to the nature of the gesture. For clarification purposes only, the employee submits that Mr. Didio demonstrated the gesture on the stand, which consisted of Mr. Didio bowing his head down and extending his clasped hand towards the employee. The employee is asking only that the Reviewing Board note that John Didio made a physical gesture toward her and Ms. Li reacted negatively to it.

John Didio, an outside psychologist hired by Raytheon, questioned the employee at a meeting set up to address the employee’s fear concerning Jen Lewis. The Judge found that Jen Lewis did stare at the employee and that Ms. Li was afraid for her safety as a result. John Didio testified about and physically demonstrated, an unorthodox gesture made toward the employee. Given the above, the employee submits that the Judge has failed to adequately support his conclusion that the events which occurred at the August 3, 2007 meeting, were bona fide personnel actions. If the Judge believed that above described specific actions by Mr. Didio constituted bona fide personnel actions, then he should have made specific findings concerning them. To fail to do so constitutes an insufficient basis for the Judge’s conclusions.

4. The Administrative Judge made inadequate findings with respect to the employee’s credibility and vocational factors.

In the Legal Analysis section of the Decision, the Judge stated that he had observed the employee and made findings as to demeanor, veracity as well as age education and experience. While the Judge was present during the entire proceedings and was able to observe the employee over a period of many days, he unfortunately referred to Yong Li, a female, in the wrong gender in several places in the Decision. The employee believes that this constitutes a series of typographical errors but nonetheless, further weakens a Decision that the employee alleges is based upon inadequate findings and inadequate medical evidence.

CONCLUSION

The Administrative Judge’s findings were not adequately supported by the medical evidence relied on. The Judge’s conclusion that the events at Raytheon were not the predominant cause of the employee’s emotional disability is not adequately supported by the evidence. The Judge’s conclusion that the events at Raytheon were bona fide personnel actions is not supported by the evidence. Lastly, the Administrative Judge made typographical errors in his Legal Analysis which cast a shadow on the integrity of the entire Decision. For the foregoing reasons, the Decision is beyond the scope of the Judge’s authority, arbitrary, capricious and contrary to law. As such, the Decision must be reversed and remanded for a new Hearing.

The Employee

By Her Attorney:

_____________

Richard D. Surrette

Jenkins-Bryant & Surrette, PC

390 Main Street, Suite 1001

Worcester, MA 01608

508-751-4010

BBO#559274

Dated: December 6, 2007

Popularity: 6%

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匿名说：

2008年01月1日于9:43 上午

Please support Yong Li’s appeal, please address your opinions to:

Department of Industrial Accidents
600 Washington Street; 7th Floor
Boston, MA 02111

Employee’s attorney: Richard D. Surrette, 390 Main Street, Suite 1001, Worcester, MA 01608

Employer’s attorney: Joseph Buckley Jr., ESQ, Morrison Mahoney LLP, 250 Summer Street, Boston MA 02210

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匿名说：

2007年12月25日于11:33 下午

BOARD #: 04286804 DEPARTMENT OF INDUSTRIAL ACCIDENTS
DIVISION OF DISPUTE RESOLUTION
WORCESTER, MASSACHUSETTS

Yong Li Employee
Raytheon Company Employer
Raytheon Company Insurer

YONG LI’s COMPLAINT against JUDGE CONSTANTINO’S HEARTLESS COMMENTS in HIS DECISION of JUNE 13, 2007

Yong Li (“Li”), a victim of unfounded homicide accusation by Raytheon, hereby complains against Judge William Constantino Jr. for his heartless comments in his decision of June 13, 2007.

Judge Constantino stated “Mr. Didio spoke in a way that would not alarm anyone” when Didio asked “do you want to kill someone”. Li believed that this comment heartlessly demeaned a victim, because, in anyway, turning back a victim to be a potential murderer is unthinkable, and is evil. Judge Constantino’s comment is indifferent with a victim’s suffering, and demonstrated his impaired judgment, just like to say “a rape would not alarm anyone!”

In 2002, Judge Ernie B. Murphy became known as “Evil Ernie,” because he allegedly commented a 14-year-old rape victim: “Tell her to get over it.” Murphy eventually prevailed in a libel case, but Judge Constantino’s comment “Mr. Didio spoke in a way that would not alarm anyone” was fixed in the decision of June 13, 2007 (see Exhibit A).

Background
Li was a senior software engineer in Raytheon Marlborough facility. In 2004, her ex-manager Jen Lewis offensively stared at Li whenever they met alone, and Li hurried away each time. Such intimidating conduct had continued for eight months and eventually caused Li to worry about her personal safety. When Li reported to the human resource about safety concern, Raytheon, through EAP counselor John Didio, imposed a mental evaluation without her consent. Didio did not ask why Li felt unsafe, he directly asked “do you want to kill someone,” with his finger pointed at Li and showed scurrilous staring. Gripped with panic, Li was traumatized, suffered PTSD and became long term disabled.

Litigation
During the testimony, Raytheon witnesses lied under oath, they insisted on that Mr. Didio asked “do you want to harm anyone,” and not “kill”. Mr. Didio testified that he showed his palm up towards Li, and not with finger pointed at Li; he denied that he stared at Li, instead he was looking at the floor. The undisputed fact is that Mr. Didio did not ask Li why she felt unsafe. Another undisputed fact is that no one told Li that Mr. Didio used the word “harm” but not “kill” during that year.

In the decision, Judge Constantino accepted the word “harm” not “kill.” He specifically claimed that “Mr. Didio spoke in a way that would not alarm anyone.” He specifically claimed that “Mr. Didio did not intent to harass Ms. Li, nor did he harass Ms. Li.”

Judge Constantino accepted the damage that “Li experiences flashback of the August 3, 2004 meeting with John Didiol at times, Li is emotionally out of control and she throws objects; Li has suicidal thoughts; since the incident of August 3, 2004, Ms. Li has had emotional problems that affected her marriage, and now she and her husband have separated”.

However, he dismissed Li’s claim based on Raytheon doctor Julia Reade’s report, which fabricated Li’s personality problem. This claim is in appeal now.
Judge Constantino’s decision potentially precluded Li’s other tort law claims against John Didio or Raytheon.

Li requests that the Department of Industrial Accidents and other concerned institutions to take some actions on the evidence, and to protect the rights and dignity of a victim of harassment who suffered as a result of Judge Constantino’s heartless comments in his decision.

Respectfully submitted,

YONG LI (Pro Se)
/s/_
Name: Yong Li

Date: December 04, 2007

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