MWCC NO. 97 03055-G-2155

DARLINE O. SLATER                                                                                                                         CLAIMANT

vs.

FEDERAL EXPRESS CORPORATION                                                                                             EMPLOYER
SELF-INSURED

REPRESENTING CLAIMANT:
Hon. Katrina M. Gibbs, Attorney at Law, Jackson, Mississippi

REPRESENTING DEFENDANT:
Hon. Richard M. Edmonson, Jr., Attorney at Law, Jackson, Mississippi
 

The Commission heard the above styled cause on March 20, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the "Employer's Petition for Review of Decision of Administrative Judge".

Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of the Administrative Judge" dated October 29,1999.

SO ORDERED, this the 24th day of March, 2000.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Barney Schoby
Beverly Bolton
COMMISSIONERS

ATTEST:
Brenda H. Goolsby, Secretary
___________________________
 

MWCC No. 97 03055-G-2155

DARLINE O. SLATER                                                                                                                      CLAIMANT

vs.

FEDERAL EXPRESS CORP.                                                                                                             EMPLOYER
SELF-INSURED

APPEARING FOR CLAIMANT:
Honorable Katrina M. Gibbs, Attorney at Law, Jackson, Mississippi

APPEARING FOR DEFENDANTS:
Honorable Richard M. Edmonson, Jr., Attorney at Law, Jackson, Mississippi
 

Claimant alleged she sustained physical and mental injuries arising out of and in the course of her employment as a courier for Federal Express Corporation. The employer denied the occurrence of both injuries. The employer has not paid claimant disability or medical benefits to date. The primary issues are the occurrence of physical and mental injuries on or about January 31, 1997 and the existence and extent of claimant's temporary and permanent disability resulting from those injuries.
 

1. Claimant's average weekly wage on the date of injury was $14.24.
 

The issues are:

1. whether claimant sustained a physical injury and/or a mental injury on or about January 31, 1997 as the term "injury" is defined in Section 71-3-3 (b);

2. the existence and extent of temporary and permanent disability attributable to claimant's alleged physical and mental injuries;

3. the employer's liability for medical services and supplies under Section 71-3-15 and the Medical Fee. Schedule; and

4. whether claimant is entitled to a 10% penalty on any untimely paid installments of compensation pursuant to Section 71-3-37 (5).
 

Claimant is a 37-year-old resident of Terry, Mississippi. She is a college graduate with a degree in the Business Administration. During high school she worked for a grocery store, and during college she worked as a substitute teacher for elementary schools. After graduating from college she worked in an administrative capacity for a collection agency. Federal Express hired claimant as a courier on April 2, 1984. As a courier, she drove a Federal Express truck and delivered packages to customers in her territory. Claimant testified she enjoyed her work and her contact with customers, but that she experienced numerous mental stressors during her employment for Federal Express.

The first stressor identified by claimant was inappropriate conduct by the senior manager who hired her, Leonard Collins. This conduct occurred during the six to nine months after Collins hired claimant on April 2, 1984. She identified Collins' inappropriate conduct as accompanying her in her truck more often than his duties as her senior manager warranted. She recalled one trip during which he directed her to his house, presumably to meet his family. His family was not home upon their arrival, but he nevertheless invited her inside his home and offered her a Coke. Claimant testified she thought the Coke tasted "funny," but that she was not sure he put anything in her drink. He also touched her leg and tried to kiss her on other, separate occasions. He told her that he often dreamed of her, and he frequently waited to talk to her after work. Claimant testified she did not report Collins' inappropriate conduct because all the other employees were aware of the situation. She testified that Mitzi Espy, one of the employer's personnel representatives from Memphis, telephoned her at home and later met with both her and her husband to verify that Collins' conduct was inappropriate. Claimant testified Collins was transferred to another station after Espy's visit.

Claimant testified the next work-related stressor that she experienced was mistreatment by Leonard Collin's successor, Mike Pruitt. Claimant described Mike Pruitt as "a monster from hell." She testified that her troubles with Pruitt began when she refused to "snitch" on another female manager at his request, and that Pruitt retaliated by "riding me and writing me up." She testified that Pruitt made fun of her for saying that she had delivered a child three months premature in November 1986. The child died shortly after birth, but Pruitt told her that he did not believe that she had actually given birth to a child.

She also testified that she experienced gynecological problems for some period before May 1988, but that Pruitt would not let her leave work to attend to these problems. He again told her that he did not think she was really ill. Pruitt therefore required her to undergo a pelvic examination by a family practitioner in Pearl, Mississippi, so that he could verify her medical condition. Claimant objected to the examination because she did not know the doctor, but Pruitt told her that he would terminate her for insubordination if she did not comply with his request. He and another male manager took her to the doctor's office, and they waited to talk to the doctor after the examination was completed. Claimant testified that the doctor verified that she was having gynecological problems, and that this news made Pruitt so mad that he left her alone in the doctor's office for several hours after the examination before returning to take her back to the station.

Claimant also testified that she was publicly humiliated by the fact that her co-workers knew how Pruitt had treated her. She testified that she hyperventilated at the office the day after the pelvic examination, that her co-workers telephoned her husband who then worked at Siemens next door to Federal Express, and that her husband immediately came to her workplace. Pruitt insisted that she take time off work, but claimant declined his suggestion because she was afraid that he would use it as an excuse to fire her. Pruitt therefore drafted a document in which he promised to hold her job open for her while she was off work. Claimant was off work for six weeks. During this time, Pruitt telephoned her at home, apologized for his behavior and promised "everything would be OK" when she returned to work. Claimant testified that, after she was forced to undergo the pelvic examination by Pruitt, she began to have problems eating and sleeping and that she began to see a psychiatrist referred through the employees employee assistance program. Pruitt had been transferred to another station by the time she returned to work.

Claimant's next stressful event occurred after the premature birth of her second child on May 18, 1989.¹ After the baby was delivered by Caesarian section at 25 weeks, claimant was off work for eight weeks. Her daughter remained hospitalized at University Medical Center for 96 days. Although claimant requested a route closer to the hospital during her baby's hospitalization, the employer refused to accommodate her during this period. Claimant also testified that she had four miscarriages while working for the employer, but that she returned to work as a courier after each miscarriage. She further testified that, although saddened by the miscarriages, she always overcame these disappointments with her family's support. She testified that she now has three children, ages ten, six and four.

Claimant testified she next experienced employment related stress between 1992 and 1996 because she delivered packages in "the dope community." Claimant testified that she told the employer that people were following her because she was carrying drug packages, but the employer dismissed her fears and told her that she was paranoid. A supervisor, Ron Harper, laughed off her fears that she was delivering drug packages. She also testified that, because couriers were known to carry drug packages, a IDEA agent once dressed as a courier as part of an undercover operation. She recalled one occasion when several drug dealers followed her truck and blocked her in at an apartment complex. She testified that, the day after this incident, her supervisor, Ron Harper, rode with her and devised a defensive plan of action such as contacting the dispatcher, writing down car tag numbers and keeping the doors locked. She also testified she once gave a suspected drug package to another senior manager, Michael Wright, who verified her suspicion, but that he did not acknowledge or award her vigilance. She testified she did not sleep at night because she was afraid of drug dealers, and that she again contacted the employee assistance program for a referral to a psychiatrist. The employee assistance program, People Help, referred her to psychiatrist Dr. William Vaughan.

Claimant also identified her disappointment over not receiving a lateral transfer in late January 1997 as a job-related stressor. She had bid for a route closer to her home in Terry, Mississippi, as the route would allow her to have a quiet lunch break as opposed to no lunch break or a very rushed lunch break. Dr. Vaughan, the psychiatrist whom she saw after work, had suggested that she take a meditative lunch break as a means of relieving work-related stress. The new route would also allow her to work closer to home in a safe, familiar area.

Claimant testified that route assignments were based on seniority, and that she expected to receive the route as the most senior employee. However the operations manger, Bryan Wilson, told her that the managers selected the courier for each route, and that she was "too nervous to get it." Despite persistent neck pain during the busy holiday season in 1996 and Wilson's warning that she was "too nervous" to receive a transfer, claimant continued to work with the hope that some of her job-related stress would soon be relieved by traveling a new route.

Regarding other managers' treatment of her, claimant testified at the evidentiary hearing that her manager at that time, Michael Wright, was ruthless and vindictive. He told her that she could not be a full time mother and a courier. Although Wright sympathized with her mistreatment by Michael Pruitt, he told her that she should "get over it." Claimant also testified that Wright was untruthful when he said that he did not know that she had complained of neck pain for six months before February 1997. Regarding former senior manager, Patti Maul, claimant testified that when she complained about time constraints due to new development in her territory, Maul told her to work through lunch and lie about her mileage. When claimant complained that she had received two speeding tickets because she had exceeded the speed limit in order to timely make deliveries, Maul told her to wear lipstick and flirt with police officers who stopped her for speeding.²

Claimant testified that she also experienced stress during the second half of 1996 because she had chronic neck pain from opening and closing the jammed rear door of her truck. She testified she reported the equipment problem and her resulting neck pain to the employer for at least six months before February 1997, that the mechanic oiled the door in response to her complaints, but that he was behind in making repairs because of the busy Christmas season. She also testified she sometimes saw a chiropractor during lunch for this condition.

Claimant testified that although she had experienced neck pain for months before February 1997 because her truck's rear door was jammed, she suffered a specific, traumatic injury to her neck in early February 1997. The injury occurred when she attempted to open the door to retrieve a large package on the last stop of the day. She felt a click in her neck and experienced immediate neck pain. Her customer ultimately helped her open the rear door and unload the package. She recorded this incident on her vehicle report on the date of injury, but she was not sure she notified her managers when she returned to the station because they may not have been there.

Claimant testified that although she did not specifically reference the occurrence of a neck injury in February 1997 on her Petition to Controvert dated February 18, 1998, her Petition to Controvert does state that she sustained a continuing injury to her "entire body" as the result of a "hostile work environment and neck injury." She also testified that she did not report the occurrence of a physical injury in her May 1997 discovery responses or her August 14, 1997 deposition. During her deposition, claimant testified that she injured her neck in 1994 when she tripped and fell over a package and that she could not recall any other injuries to her neck at work, but she testified at the evidentiary hearing that she was sedated during her deposition and could not accurately recall events. She also testified at the evidentiary hearing that she had injured her neck in 1992 when she fell off a truck, that she was off work less than five days, and that she returned to work after that injury with no residual impairment.

Claimant testified the late January 1997 or early February 1997 neck injury occurred on her last day of work or on her next-to-last day of work. Either the night of or the night after her neck injury, she experienced numbness in her face. At 2:00 a.m. the next morning, she went to the Mississippi Methodist Medical Center where she remained hospitalized for two days. She received follow-up care from Dr. Robert Smith, her family physician, and from Dr. Angela Herzog, the clinical psychologist who had treated her since 1993.

Claimant also testified that she did not know that a co-worker, Mia Mosley, had received the route on which she had bid until after she was hospitalized in February 1997. She testified that two days before her neck injury, Mosley told her that Ron Harper, their operations manager, had suggested that she apply for the new route. Claimant testified that she was so upset about Harper's suggestion to Mosley that she told Mosley that she could shoot the three managers or run over them with her vehicle. However claimant denied that she told Mosley that she was going to take off work with a worker's compensation injury.³

Claimant testified that she entered therapy for the first time in her life while she was off work after Mike Pruitt forced her to undergo a pelvic examination in May 1988. She first saw a psychiatrist, a Dr. Hamilton, at St. Dominic Hospital through the employee assistance program. She has been in therapy on and off since that time. She also treated with psychologist Dr. Sharon Pugh on referral from the employees employee assistance program. Dr. Pugh ultimately referred her to clinical psychologist Dr. Angela Herzog whom she had seen on and off for the past eight years. The employer's employee assistance program also referred her to psychiatrist Dr. William Vaughan. Dr. Vaughan ultimately recommended hospitalization in February 1997, but she declined his recommendation because she did not want to be separated from her children. Dr. Vaughan then referred her to Dr. Timothy Summers. She testified Dr. Summers treated her throughout 1998.

Claimant testified she has been physically and mentally incapable of returning to work since February 1997 because of her work-connected physical and mental injuries. She testified she has not been on any field trips with her children, and that she is "withdrawn, stripped and not the way I'd like to be." She testified she has not been able to work or to take care of her children, and that her mother takes care of her children. She is currently receiving long-term disability benefits from the employer as well as social security disability benefits. Claimant testified she wants to return to work, but that she cannot face that prospect at this time.

Nathan Slater, director of management information technologies for the Mississippi Department of Education, testified that he had been married to claimant for 17 years. Slater testified that claimant was excited about going to work for Federal Express, but that the manager who hired her, Leonard Collins, made improper advances toward her after she was hired. Collins waited for claimant after work and sometimes met her on her route. He also called claimant at home occasionally for no reason. He sometimes rode with claimant although direct managers, not senior managers, generally rode with couriers. Once while riding with claimant in her truck, Collins directed her to his home. His other family members were not at home, but he invited her inside and offered her a drink. Slater testified that rumors about claimant and Collins began to circulate because of Collins' "extra attention" to claimant. Slater therefore told claimant that he would begin to pick her up from work in the evenings. Finally, Mitzi Espy, one of the employer's senior personnel mangers from Memphis, telephoned claimant and ask her about Collins, advances. Espy later met with him and with claimant to apologize for Collins' inappropriate behavior and to assure them that it would not happen again. Slater testified that he did not see Collins again after their meeting with Espy.

Slater testified that claimant continued to work as a courier after Collins' departure, and that she had no problems at work. He specifically testified that she enjoyed her job, and that all was "smooth sailing." However Slater testified that problems again developed when the new senior manager, Michael Pruitt, asked claimant to "snitch" on her fellow employees. Like Collins, Pruitt also waited for claimant to return to the station at night so he could talk to her in the parking lot. Pruitt specifically asked claimant to report on a female manager, Jean Madison. When claimant refused to cooperate with Pruitt, he retaliated and claimant's "life became hell." Pruitt often "wrote up" claimant for trivial matters although he later rescinded these actions.

Slater also testified that Pruitt did not believe that claimant continued to have medical problems after she had miscarried at six months. Pruitt got mad at claimant because she had certain medical problems and "she wouldn't do what he wanted her to do." Because Pruitt did not believe that claimant continued to have medical problems, Pruitt and another man took her to a doctor in Pearl, Mississippi, for a physical, including a pelvic examination. Slater noted that claimant did not know the doctor and that she had recently passed a DOT physical. Slater testified that claimant felt as though she had been raped or violated by this incident. After the examination, Pruitt was furious because the doctor had verified that claimant had ongoing medical problems attributable to an ovarian cyst. He left claimant at the doctor's office for more than two hours while he "went for a ride" after the examination.

Slater testified that the day after Pruitt forced her to undergo a pelvic examination, claimant called him from work and told him that Pruitt had called her into his office. She said that Pruitt told her that he did not believe she had actually had a baby - "the one that you and I held." Slater testified that during their phone conversation, claimant was hyperventilating and she was very upset. Another employee took the phone from claimant and asked him to come to the station.⁴ When he arrived at the station, claimant was crying. Slater then met with Pruitt who apologized and explained that he was "just stupid" - he thought claimant had miscarried and he did not know that she had actually delivered a baby. Pruitt offered to make amends by giving claimant a couple of days off, but claimant refused because she thought he was going to fire her. Slater testified that claimant also did not want to leave work because she did not want anyone to think that she could not work and because she really wanted to work. However claimant finally agreed to take time off from work when Pruitt offered to sign a document stating that claimant would not be fired during her absence. Slater identified a letter dated May 24, 1988 stating that claimant would be guaranteed her job and her route during her absence. Claimant remained off work for six weeks during which she was treated for stress. Slater testified that claimant had not been treated for stress before that time.

Slater testified that Michael Pruitt had been transferred from the Jackson station when claimant returned to work. Claimant returned to her usual job, but her route expanded due to increased development in her territory. She also continued therapy after she returned to work, as Pruitt's insistence that she undergo a pelvic exam "really got to her and what Mike said got to her." Slater testified that he urged claimant to quit work, but that she refused to quit because she loved her job and meeting people on her route. Slater also testified that claimant "was a worker --always has been." She returned to work after several miscarriages. She also returned to work after delivering her second child who was also born six months premature and weighed only 1 pound, 11 ounces. Although the baby was in intensive care for 93 days, claimant got up every morning at 4:00 a.m. so she could go by the hospital before reporting to work at 5:45 a.m. When she returned home around 6:00 p.m., she would go to the hospital again to see the baby. During this time, the employer did not offer to accommodate claimant's schedule or her duties.

Slater testified that claimant also experienced stress because her route was changed to south Jackson, and this area had become unsafe. Slater testified claimant told him that she was delivering drugs because some customers insisted on paying cash and would give her a $100.00 bill for a $10.00 or $15.00 package although she had no change. Claimant once took a package to management that she suspected contained drugs, and the next day a bust was made by an undercover agent dressed up as a Federal Express courier. Claimant was also fearful that people were following her, and she relayed this fear to management. Once she was blocked in by drug dealers who thought that she had a particular package. Slater testified that claimant did not want to remain in South Jackson for this reason, and that "everyone knew it."

Slater testified claimant began to see Dr. Herzog through the employer's employee assistance program because the employer was putting pressure on her at work. She did not take a lunch break as required by DOT regulations because her managers told her to speed up to meet production requirements. Her manager, Patti Maul, told her to take lunch breaks, but Maul also expected her to deliver packages timely. Maul also told claimant to flirt with highway patrolmen in order to avoid speeding tickets. Claimant finally told Maul that she would no longer falsify documents to show that she had taken a lunch break. Maul got so mad at claimant that she "wrote her up." Maul's letter to claimant stated that claimant had work-related stress and that she should not return to work until she was rehabilitated. When claimant submitted a written response to Maul's letter, Maul wrote claimant another letter stating that she was not mentally sound and that she would have to undergo a complete mental evaluation before returning to work. Claimant then made a written request for the basis of Maul's statement that she was not mentally sound. Claimant copied other district personnel with her second letter to Maul. Over the next weekend, district personnel representatives from claimant's region contacted her to apologize for Maul's letter. The district personnel also explained that Maul had no right to diagnosis claimant in any way, and that another letter would be forthcoming. Maul then wrote claimant a wholly different letter that was much more supportive and encouraging (letter marked Exhibit 4).

Slater also testified that claimant was disappointed that she was not assigned a new route in 1997. Routes had always been awarded based on seniority, and claimant had fifteen years of seniority. - He testified claimant discovered that she would not receive the route on a Monday or a Tuesday, although she knew then that other employees had been encouraged to apply for the route.

Slater also testified that claimant injured her neck when she fell off her truck four years ago. She continued to work although she had a stiff neck. She more recently experienced neck pain on the job because her rear truck door often jammed, thereby requiring her to open it with all her weight. Slater testified that claimant reported the mechanical problems with her truck door to management. She also aggravated her neck condition in early February 1997 when she attempted to lift the jammed rear door of her vehicle. Claimant said she felt and heard her neck pop when she tried to open the back door. Upon reviewing documentation that claimant had asked for help to open the rear door on February 3, 1997, he recalled that she told him that she had injured her neck on February 3, 1997. Slater testified that, the night after her neck injury, she woke up and told him that her side was tingling. She also reported numbness. Claimant then drove herself to the hospital while he took the children to her mother's house. Claimant remained hospitalized for several days after which she did not return to work.

He testified that claimant "simply couldn't take it any more," after her neck injury. He identified the neck injury as the "straw that broke the camel's back." He testified claimant remained disabled because of her neck injury in February 1997 and because of stress and exhaustion. He testified he thought claimant felt that "I've done all I can and I can't go anymore," but that the fact that she was not working was "literally killing her." He also testified that claimant is now a different person - she is withdrawn and she rarely goes to church or to family functions. Claimant's mother lives next door and often keeps the children because she cannot take care of the children. Slater testified that claimant's family was a great support group - "that's how we make it."

Jean Madison, a manager for Federal Express in New Orleans, testified she was the operations manager for the Jackson station in 1988. She testified she had no relationship with claimant until problems developed with the senior manager, Mike Pruitt. One day Pruitt called her and claimant into his office. He said, "Now I'm going to take care of your complaints." Claimant exclaimed, "What complaints," and she ran to the bathroom. Claimant was very upset. Michael Pruitt said that claimant had made allegations about her. Pruitt also told Madison that he was going to fire claimant. He said that, but for her brother and some multimillion dollar case that he had just won, he would have already fired her. Madison testified that the day after the bathroom incident, claimant came to her and told her what had occurred.

Madison could not recall other specific instances of Pruitt's treatment of claimant. However Madison testified that she left the Jackson station soon after this incident because of the situation there. She also testified that Pruitt was a dictator, and that their working conditions "were hell" during Pruitt's tenure as senior manager. She testified that Pruitt would often curse employees and use obscenities and vile comments.

Michael Wright, a Federal Express employee for thirteen years, testified he had been the senior manager in the Jackson office for almost four years. He was claimant's senior manager between September 1995 and February 1997. Wright recalled that claimant came to his office in October or November 1996 because she was "very upset about something." He also recalled that she went back in time thirteen years regarding her mistreatment by prior managers. He further recalled that in October or November 1996, claimant told him that she had a crick in her neck because she had been sleeping on the couch while her husband was in Washington, D.C. He also testified that, immediately after the conversation with claimant in this office in October or November 1996 when she became so upset, he discussed home remedies for neck pain with claimant and some other employees. Wright testified that his response to claimant's complaints regarding her treatment by former managers, including Michael Pruitt, was to suggest that she "get help." He felt she needed "a shoulder to cry on," but he could not redress past grievances. He testified he had no first-hand knowledge of her prior mistreatment. He also testified that he did not know that she was already in counseling through the employer's employee assistance program. However he felt that she needed counseling to "get past" unresolved conflicts regarding her treatment by prior managers. He did know that she had attendance problems in 1995 and 1996, that her job performance was marginal to weak, but that she performed her job satisfactorily from a physical standpoint.

Wright testified that operations managers, not senior managers, generally run on routes with couriers. However it is not unusual for senior managers to go on check rides with employees. He also testified that it is normal for a senior manager to telephone an employee at home regarding a change in the schedule or to obtain information regarding a package, but he did know why Leonard Collins called claimant at home. He further testified that it was not normal for a male senior manager to require an employee to undergo a pelvic examination, to kiss her or to put his hand on her leg.

Wright testified that he felt all his conversations with claimant had been cordial. He noted that claimant's husband had helped his wife secure employment as a teacher's assistant in Brandon. Claimant also brought him toys for his five-year-old son. She once baked a pot roast for him and operations manager Ron Harpole. Wright also testified that drug dealers do ship through common carriers, including Federal Express, but that it is not normal for drug dealers to follow couriers. Packages are pulled off the route if there is any indication that they contain drugs. Also, drug dogs from various agencies work at their station three to five days a week. He testified that although most of the neighborhoods in claimant's South Jackson route were "bad," Federal Express also unknowingly delivered drug packages to Annandale and Northbay. He testified that claimant turned in a suspected drug package in 1996, but that, consistent with company policy, she was not awarded for this action when her suspicion was verified.

Wright testified claimant reported nine injuries between January 20, 1986 and January 31, 1997. Exhibit 6 is claimant's employee injury history. She also had many absences, although some of the days lost were attributable to maternity leaves and to her absence from work since the 1997 injury.

Wright testified claimant was not eligible for the route on which she bid in 1996 because company policy dictates that an employee is ineligible for a lateral transfer if he/she has (1) an active warning letter or (2) a reminder for attendance or (3) a performance evaluation at or below 4.3. He testified claimant was ineligible for a lateral transfer for all three reasons. On January 22, 1996, she received a warning letter (Exhibit 7) from Ron Harpole for a serious traffic violation: a speeding ticket for traveling 17 miles per hour over the speed limit. On February 9,1996, she received a notification of performance deficiency regarding attendance. On July 9, 1996, she received a performance reminder (Exhibit 9 ) regarding her punctuality and attendance. On August 20, 1996, claimant's performance review for the prior six months to a year was 4.3 out of a possible 7.0. Wright testified 4.0 is acceptable, but an employee needs 5.5 for a lateral transfer or a promotion. Wright testified claimant was on the verge of termination when she bid on the route. She would have been terminated if she had missed another day of work or received another speeding ticket or been given a performance rating less than a 4.0. Wright also testified that the management team reviewed all applications for a- route transfer on the last day of claimant's employment. The management team awarded the route to Mia Mosley, as claimant was disqualified on three grounds although she was the most senior applicant.

Wright testified that, when claimant first reported off work, he thought she was disabled because of a non-work related condition. He testified claimant did not give the employer notice of her injury until February 15 or February 20, 1997. However, upon reviewing Exhibit 10, Wright recalled that the employer received notice of claimant's injury on February 3, 1997. He also testified he had no information that claimant's injury did not actually occur on February 3, 1997. He recalled that claimant complained to him once about the rear door of her truck, and he knew that she had "written it up" several times. On one occasion, he asked the mechanic to go with him to inspect claimant's truck. He testified the mechanic looked at him in disbelief, went to the shop, and returned with a can of WD-40, red grease, a wrench and a screwdriver. The mechanic then "worked on the door in front of everyone." Wright testified that the door did not stick the first time the mechanic opened it, that there were "no problems" with the door or handle, but that the mechanic "worked on it anyway."

At the evidentiary hearing, Wright testified that claimant was still a courier. He also testified that if she returned to work, generally every effort would be made to return her to her prior status as a full time courier in the southern region. However, he also testified that if she returned to work with the proper medical release form, she would be terminated immediately because of her behavior at the first evidentiary hearing and because of the threatening comments she had made toward the employer during her conversation with Mia Mosley on her last day of work. Wright testified that he received a letter from Mia Mosley regarding claimant's threat to blow up Federal Express on February 14, 1997, and that this threat was "her third strike." Wright did not recall stating, during his prior deposition, that claimant would be fired if she returned to work.

Mia Mosley, a Federal Express Employee for eleven years, testified she had worked in Jackson for the past five years. She had known claimant since May 19, 1994. In January 1997, she received a lateral transfer to route 31 which included South Jackson, Byram and Terry. She testified that she and claimant had talked about the route, and that they both bid for the route. She knew claimant wanted the route because it was nearer her home. Mosley also wanted the route because she did not want to be a swing driver anymore. Claimant encouraged her to "go for it." Mosley testified that she last discussed the route with claimant on what she thought was claimant's last work day. At approximately 7:00 a.m., claimant told her that she had received the route.⁵ Claimant's eyes were filled with tears and she walked away, but Mosley followed her and expressed her understanding of claimant's disappointment. Mosley testified that claimant was angry. Claimant said that the employer "was trying to play us against each other." Claimant also said, "I ought to blow this (expletive) place up. You know what, I'm going to go out." Mosley testified she did not know what claimant meant by "go out," although "going out" generally meant taking time off. She testified she did not hear claimant say that she planned to "go out on an injury," although she stated in her February 14, 1997 memo that claimant said she was "going out on an injury" (Exhibit 15). Mosley testified she made the memo on February 14, 1997 at Michael Wright's request. Mosley's memo also states that her conversation with claimant occurred on January 27, 1997. Mosley testified that she did not take claimant's threat or anger personally, and that she told Michael Wright that she did not think claimant meant what she said.

Mosley testified that, before the above-referenced conversation with claimant, claimant had complained about neck pain. Claimant also asked Mosley to pray for her because of her neck pain. Mosley testified that she knew claimant did not want to take off work for her neck condition because she did not want to jeopardize her bid for the new route. Mosley also testified that she worked full time as a courier until July 1997 when she became pregnant. After she returned from maternity leave, she bid for and received a part-time courier's job. She also testified that she worked in the office during both her pregnancies, five months on one occasion and nine months on the other occasion, because her doctor had placed her on modified duty. Mosley recalled that claimant told her that the employer had never offered to let her work in the office with restrictions during her pregnancies.

Wendy Bell, a Federal Express employee, testified she had worked as a courier for fifteen years but was now employed as a courier and a document sorter.6 She testified she had worked under Leonard Collins, Michael Pruitt, Patti Maul, and Ron Harpole. She also testified she had no problems with any of these managers. However she testified that a Federal Express courier's job was stressful, and that such stress could have negatively affected claimant.

Bell testified she had known claimant for fourteen and a half years, and that they were friends on the job. She also testified that claimant had accused her of having a relationship with one of the managers, although she admitted that someone else told her that claimant had made this accusation. Bell testified claimant often wanted to know why she hated her. Bell also testified that when she saw claimant outside the courtroom, claimant told her, "You are going to get yours." Claimant also appeared to point her finger at her like a gun.

Ron Harpole, a Federal Express employee for more than 20 years at the Jackson office, testified he had been an operations manager for almost five years. While he was claimants direct supervisor for two and a half years, claimant was an average to below average employee based on her performance reviews, attendance and productivity (stops per hour). Claimant had received performance reminders for attendance problems.

Harpole testified that, one morning in winter, claimant rubbed the back of her neck and said she had a crick in her neck because she had slept on the couch. He also testified that claimant did not mention her neck until the day she left. However he further testified that when he told claimant that she had not received the route because she was not eligible, she got mad and went to her truck. She then came back and told him that she was going home because her neck was hurting from lifting the door to her truck. He could not recall whether she told him then that she had injured her neck that day. He did recall that the night following this conversation or the next night, claimant called him from the hospital to report that she had pulled something in her neck and was undergoing diagnostic tests. Claimant did not report any other injuries.

Harpole testified claimant called him again to report the status of her condition. She also left doctors' reports for him at the front desk. He testified claimant "may have" mentioned her mistreatment by past managers to him, that she "expressed her opinion on a lot of things," but that he told her that he could not do anything about the past. He also testified he entered claimant's report of a neck injury into the computer system two or three days after she called him from the hospital to report that she had injured her neck.

Harpole also testified that when he saw claimant outside the courtroom on the morning of the evidentiary hearing, she said, "I'll get back at Federal Express." She also told him and Wendy Bell, "I'm going to get you for this Wendy King. You too Ron Harpole." Later claimant again began "hollering" the employer's and Bell's name and pointing her finger at them like a gun.

Dr. Robert Smith, a family practitioner, testified he had been claimant's personal physician for many years. Dr. Smith testified that claimant had a motor vehicle accident resulting in a soft tissue injury of the neck and head on February 21, 1991. She had recovered from this injury when he saw her in March 1991. On April 10, 1991, Dr. Smith treated her for a shoulder and back injury that she had sustained when she fell down some steps at work. On February 4, 1992, she had a concussion with a scalp laceration attributable to rushing down a staircase. On February 8, 1993, he prescribed Xanax with no refills. Dr. Smith testified he had prescribed Xanax for claimant since 1991 for PMS and for muscle spasms after her fall down the stairs. He testified the prescriptions were all short term. On April 19, 1994, he again prescribed Xanax for claimant. He recalled that claimant had fallen off a truck and that he discussed this matter with Dr. Herzog. On June 5, 1994, he again prescribed Xanax as claimant was upset about a death in the family. On August 1, 1994, claimant complained of right shoulder and neck pain that she had experienced since failing off a truck on or about April 10, 1991. He released her to return to work on August 15, 1994.

Dr. Smith next saw claimant on August 9, 1996 for complaints of low back and right sided neck pain attributable to her work activities for the employer. She rated her light neck and light shoulder pain as a "T" on a scale of "I" to 10." She also saw Dr. Smith for these complaints on August 12, 1997 and August 16, 1996. She next saw Dr. Smith for neck pain on February 21, 1997. On February 5, 1997, one of Dr. Smith's partners had admitted claimant to Methodist Medical Center. She had a history of a neck injury three or four years before while working as a Federal Express Courier. Approximately two days before her current admission, she was trying to open the stuck, rear door of her Federal Express truck when she heard something pop in her neck. She experienced a numb sensation that radiated down her left arm and over the next day this spread to her leg and down to her left side of her face. Upon presentation to the emergency room she was admitted for further neurological work up. Her admitting diagnosis was cervical strain.

The records of neurologist Dr. Donald Butts contained in the Methodist Medical records show he evaluated claimant on February 5, 1997. He received a history that claimant had injured her neck on the job three or four years before when she fell on the left side of her head, neck and shoulder. Although she was ok at the time, she couldn't turn her head the next day. Since then she had experienced recurrent "cricks" in her neck but she had continued working. A few days ago she was trying to open a stuck door of her delivery van when she heard something pop in her neck. She had a numb sensation radiate down her left arm and over the ensuing days it spread into her leg and now the left side of her face. She also complained of a burning sensation across the back of her head and neck. Dr. Buffs diagnosed cervical strain, doubtful pathology and exaggerated responses suggesting malingering or conversion. He recommended physical therapy/support. A CT scan without contrast on February 5, 1997 of the head was unremarkable. X-rays of the cervical spine were also normal. An MRI of the cervical spine without contrast on February 5, 1997 showed mild at most degenerative changes at C5-6 and questionably at C6-7. There was no evidence of herniated disc or significant cord compromise. After two days, claimant was discharged from the hospital on Motrin, Robaxin and Xanax. Outpatient physical therapy was scheduled three times a week for two weeks for cervical strain. She was to follow up with Dr. Robert Smith in one week.

Dr. Smith's records also contain a handwritten letter to Ron Harpole from a physical therapist dated February 20, 1997 which states claimant had completed two weeks of physical therapy ordered by her doctor. She was to return to her doctor for a reassessment at which time her doctor may order more therapy. Her physical therapist recommended another week of treatment. A rehabilitative services report dated February 20, 1997 also signed by claimant's physical therapist shows that she recommended continued physical therapy three times a week for two more weeks for neck strain.

Dr. Smith testified that his first follow-up visit with claimant in his office after her February 3, 1997 neck injury was on February 21, 1997. She reported she had injured her neck at work when she was struck by the rear truck door. He testified this history was not in his reports, but that he independently recalled that claimant reported that the rear door of her delivery truck had caused her neck injury and that she had heard a pop in her neck at the time of the injury. He diagnosed cervical strain, anxiety and stress related to her cervical strain. He recommended she continue to see Dr. Vaughan and Dr. Herzog because her recent neck injury had precipitated her stress. He also recommended physical therapy.

On February 28, 1997, claimant reported problems resting. She was anxious, agitated and could not carry on usual activities. Her physical findings were pain with extension and flexion of her neck. Dr. Smith diagnosed continued cervical strain, agitated depression and stress related to her recent work-connected neck injury. He recommended she continue her medication and follow up with Dr. Herzog. He also recommended physical therapy for her cervical strain. Dr. Smith next saw claimant on August 12, 1997, September 28, 1998, October 29, 1998, February 2, 1999, March 15, 1999, May 14, 1999, June 11, 1999 and July 2, 1999.

Dr. Smith testified at the evidentiary hearing that claimant had been disabled since February 1997 due to cervical strain, depression and anxiety caused or contributed to by her 1997 neck injury.⁷ He testified claimant still had neck spasms, and that it could or could not be unusual for her to have persistent neck pain two years after an injury. He denied that claimant's depression was caused by any other factors despite prior periodic anxiety. He testified claimant had complained "of a lot of stress" before 1997, but he could not recall specific allegations of harassment or other mistreatment on the job. He based his opinion on his knowledge of claimant as her primary care physician and as a consultant to her treating psychologist. He testified he had not referred claimant to any specialist for her neck pain, but that he still prescribed pain medication, antidepressants and anti-anxiety medication for claimant. He also testified that his treatment of claimant for depression was within the scope of his expertise as a family practitioner. He concluded that his bills and those of Methodist Medical Center were reasonable and necessary.

Clinical psychologist Dr. Angela Herzog testified she first saw claimant on November 10, 1993 on referral from claimant's employee assistance program. Claimant was distressed over her treatment at work since losing her first baby. She was also overwhelmed by demands and feared having a nervous breakdown like a co-worker. She had told her manager that she could not work more than fifty hours a week, but he told her to "quit complaining and put on a smiling face." Another manager told her to flirt with highway patrolmen and put on lipstick to keep from getting speeding tickets. Although she had received positive performance ratings in the past, she had begun to "get mixed messages" from management.

Claimant had seen psychologist Dr. Sharon Pugh who told her that she was "doing too much" and that she should rest. The employer also told her to see Dr. Pugh and "to stay home." Claimant told Dr. Herzog that she made 60 to 70 stops while traveling 160 miles a day, that all she did was "rush, rush, rush," but that she did not want to quit work. Claimant also told Dr. Herzog that her relationship with various family members was stressful. Dr. Herzog diagnosed anxiety and depression. She prescribed outpatient psychotherapy.

When Dr. Herzog next treated claimant on November 17, 1993, claimant was concerned about rumors that she was off work because she had verbalized her suspicions that couriers were delivering drugs, and not because of her pregnancy. She was told to express her concerns to management, but management's response was to tell her to do her job and not ask so many questions. Dr. Herzog's notes state that claimant's husband confirmed "the business unfair and improper dealings with Darline." She also noted that claimant enjoyed contact with her customers and was working hard to prove herself and make her own way. Dr. Herzog testified that claimant's problem was that the employer did not give her the respect of having a credible suspicion, not that they asked her to deliver drugs. Dr. Herzog also testified that claimant's pride and identity were tied to her work, and that she refused to give the appearance of buckling under despite "certain attempts to harass her/apply unnecessary management techniques and take advantage of her vulnerabilities."

Dr. Herzog next saw claimant on November 24, 1993. She complained of family problems outside work, but she also remained preoccupied with the employer's pressures/demands. Dr. Herzog referred claimant to her family doctor for medical treatment, including drug therapy. Dr. Smith began to prescribe medicine but claimant did not want to take any medication that might compromise her ability to work.

On December 9, 1993, claimant reported that she was very busy at work and that her work and family were demanding. She was overwhelmed and distressed with work demands. She was noted to cope better on the road than when she was in the office with others. Claimant's husband and mother were noted as being very supportive.⁸

On January 12, 1994, claimant reported she had worked sixty-six hours during Christmas week. She also reported concerns regarding her immediate family and troubles at work regarding "demands to get her to sign statements about rumors." She continued to function better on the road than in the office with others. She reported feeling wonderful when she got off work one day as early as 3:30 p.m., but she still reported feeling overwhelmed and in continued need of support to maintain her emotional equilibrium.
 
On January 19, 1994, claimant was brighter and smiling and enthusiastic about getting off work while it was still daylight and she had time to spend with her children. She reported anxiety about a test in April 1994. On February 2, 1994, claimant was angry because her manager, Patti Maul, had called her back to the station, thereby causing her to miss her appointment with Dr. Herzog the previous week. Claimant reported she was trying hard to do her best, but that the employer would not support or respect her. She reported power plays and coercive activities at work. She also described and Dr. Herzog noted "an ordinate intensity/number of conflicts at work," which Dr. Herzog testified meant "outside the ordinary work pressures." Although claimant also reported that she had become paranoid -about an innocent comment by some extended family members, Dr. Herzog testified that she did not attribute paranoia to claimant. Claimant again expressed anxiety about a test intermittently given to qualify employees for work.

On February 9, 1994, claimant expressed difficulty regarding her relationships with some extended family and with her supervisors at work. On February 16, 1994, claimant reported Maul's poor treatment of a co-worker. Dr. Herzog discussed with claimant the reasons she elected to remain employed by Federal Express: money, benefits, enjoying being on the road, and enjoying the feeling that she was good at her job. However claimant noted that dealing with management and having a high stress job upset her.

On March 23, 1994, claimant reported that she was in better spirits. A co-worker had ridden with her and they had connected emotionally. Claimant was feeling more confident with others at work and others were showing more respect for her. However claimant acknowledged her continued depressed moods and feelings of being overwhelmed and anxious.

On April 6, 1994, claimant discussed her anticipatory anxiety regarding an upcoming test. She reported handling past problems with extended family well. On April 14, 1994, claimant reported she was "very stressed out by the job."

On April 20, 1994, claimant was in a good mood because she had completed the test without developing a panic episode. She was overwhelmed by extended family problems, although her husband continued to be very supportive. She continued with "labile moods," especially in regards to work demands. Claimant felt aggressive toward people at work who had betrayed her. May 25, 1994, claimant complained of an insensitive manager who "got on her nerves--Patti Maul." She was also stressed by the petty affairs of her family, although she was handling these more adaptively by not getting involved and by taking care of herself. Dr. Herzog concluded claimant's "major issue continues as work - has received affirmations from some colleagues and a couple are relocating which is a positive for Darline. Darline is managing demands and stressors of colleagues and work environment with greater confidence and self security." She also concluded that claimant was better managing her depression and anxiety. Although Dr. Herzog noted that claimant's progress was somewhat guarded given her fragile sense of self and the demands of her work and family,⁹ she discontinued therapy upon claimant's request and their mutual agreement that claimant could return as needed.

Dr. Herzog did not see claimant again until May 6, 1996. Claimant reported that she thought the employer was setting her up so she would be unprofessional and get fired. She was also afraid the employer would use her miscarriages against her -"they raped me when they did that pelvic. ... She reported that she could not trust her current manager, that the managers gave her mixed messages, and that she was stressed out but "couldn't say it cause they'll use it against me." Claimant told Dr. Herzog that she could not control her nerves, and that she had elected to stop taking her medication although she probably still needed it.

Dr. Herzog did not see claimant again until February 11, 1997. Claimant was accompanied by her husband who reported that she had seen Dr. Vaughan and that Dr. Vaughan had prescribed Prozac. Claimant complained of a recent, work-connected cervical strain for which she had received physical therapy. She was also very upset about not receiving a route that would offer her a less stressful work day. The new route was closer to home, so it was more familiar and offered her a greater opportunity for rest. Claimant described the employer as disrespectful, negative and unsupportive because it had assigned the route to a less senior employee contrary to the current bidding system. Claimant deduced that the employer "just did not want her to get the job" because its actions were inconsistent with past practice and with claimant's expectation of "a fair shake." Dr. Herzog concluded that claimant was too emotionally distressed to return to work, even if her cervical strain was better. She telephoned claimant's supervisor to inform him that claimant could not return to work.

On February 20, 1997, Dr. Herzog received a phone call from Dr. Vaughan who strongly urged that claimant be admitted to the hospital. Dr. Herzog agreed to carefully assess claimant's status when she came in later that week. On February 21, 1997, claimant reported an incident involving road rage with a motorist. She expressed remorse over this incident. She also reported, "I can't handle nothing ... I've been going through this four years -- the last thing has happened ... they (Federal Express) ... got their thumb on you." Claimant expressed her sympathy with employees who become so angry at their employers "that they go in and shoot up the place."

Dr. Herzog recommended inpatient hospitalization as claimant appeared paranoid and her thought processes and judgment were impaired. However claimant left her office abruptly upon receiving this recommendation. Dr. Herzog concluded that claimant was not typically aggressive or impulsive, but that she was exhibiting poor judgment then because many of her remarks reflected paranoia and a theme of persecution by the company. She telephoned Ron Harpole to tell him that claimant could not work and that she should be calmly encouraged to leave the employer's premises if she returned to the workplace because she had recently shown diminished insight, poor judgment and impaired impulse control. Harpole requested a letter to this effect, so Dr. Herzog wrote a letter dated February 21, 1997 in which she stated that claimant was "under severe emotional distress at this time related to stressors; at work."

On February 24, 1997, Dr. Vaughan called Dr. Herzog to advise that claimant had not presented for hospitalization and that he was therefore discharging her from his care as she had not followed his recommendation for hospital admission. On February 28, 1997, Dr. Herzog sent a letter to Leslie Cooper with the John Hancock Company indicating that claimant was receiving psychological treatment for work related stress." On March 4, 1997, Dr. Herzog wrote another letter to Leslie Cooper stating that claimant initially presented for psychological services for primary symptoms with "anxiety and depression including disturbed sleep patterns, loss of energy, withdrawal from others, diminished concentration powers, difficulty in focusing and sustaining attention, racing thoughts, excessive preoccupation with pressures and demands and work. Dr. Herzog also noted that claimant's MMPI-II administered November 10, 1993 produced the following diagnosis: generalized anxiety disorder, dysthymia, avoidant personality disorder, passive aggressive personality disorder and histrionic personality disorder. Dr. Herzog further noted as follows:

She has become overwhelmingly distressed with work demands, and with perceptions of the mistreatment she has suffered. Her thought patterns have reflected accusatory and paranoid perceptions of supervisors and co-workers. She has reported an inordinate number of interpersonal conflicts at work of significant intensity to result in her fearfulness about how she is being treated, as well as her difficulty in managing her own reactions to the stressors. She has felt that supervisors have used tactics to set her up to be fired, which has resulted in overwhelming anxiety about her statements and behaviors with others at work. Episodes have approached panic status at times.

Dr. Herzog continued to treat claimant regularly throughout 1997 and 1998. She testified that on December 8, 1997, claimant was overwhelmed with stressors. On January 7, 1998, claimant reported that she suspected the employer may have tapped her phone lines and vandalized her house. Dr. Herzog testified she did not believe these suspicions, but that she believed many of claimant's other allegations because they were supported by independent evidence. Dr. Herzog also testified that paranoia can be based in reality if it is preceded by a prior trauma.

On March 3, 1998, claimant made vague threats about the delay of an evidentiary hearing. On December 28, 1998, Dr. Herzog noted that claimant had a histrionic overreaction: she blamed Michael Wright for her failure to receive social security benefits. However Dr. Herzog also noted that claimant may actually have been referring to the employees long-term disability program, in which case it would have been reasonable for claimant to think that Michael Wright had some influence over her receipt of disability benefits. Dr. Herzog testified that claimant was not a paranoid person generally.

On March 15, 1999, claimant reported she had driven through the employer's parking lot. She was upset and despondent. Dr. Herzog did not think that claimant would harm the employer because she did not have the resources, but she contacted Ron Harpole by phone to warn him that claimant was emotionally fragile and could use poor judgment. On March 22, 1999, claimant told her that "everybody is out to get me." On May 25, 1999, claimant said that Dr. Summers, the psychiatrist who took over her care from Dr. Vaughan, had abandoned her although he had simply moved out of state.

Dr. Herzog testified she is now treating claimant for post-traumatic stress disorder (PTSD), a disorder that fits within the diagnosis of an anxiety disorder. When ask whether a causal connection existed between claimant's employment and her current condition, Dr. Herzog testified that, during her eighty or ninety sessions with claimant during the past six years, claimant had developed a diminished ability to trust that management would treat her fairly and with integrity. Such management practices were particularly harmful to claimant because she had an over invested image of herself as a good worker: her family had taught her that an individual's self worth and validity were derived from being a good worker.

Dr. Herzog also testified that claimant's diminished ability to trust management impaired her ability to effectively respond to stressors over time - "to function and cope ... there was a cumulative effect over time." Dr. Herzog characterized claimant's cervical strain in February 1997 as another stressor for which she had to produce the resources to cope. It exacerbated a long chain of events. When asked if she knew that claimant had allegedly injured her neck and been denied a lateral transfer on her last day of work, Dr. Herzog testified that she was aware of these events but not of their specific sequence. When asked if the sequence of events was coincidental, Dr. Herzog responded:

A. I think it would be understandable that it was not coincidental because I think there was such an accumulation of disappointment and distress and trauma that she continued to perceive that it was ... it reached the point where she couldn't put the next foot forward to keep working ... It finally did her in.
....

Q. So the ongoing persecution coincidentally caused her not to work on the same day she got news of the route?

A. There had been increasing diminishment of her ability to cope with the stressors of work, and it coincided with the chronic pain that she had been experiencing from the busy Christmas season through January and February, and it coincided with the realization that she was going to be unable to obtain a desired route that she wanted.
....

Q . Wouldn't claimant's diminished ability to cope have resulted in her gradually missing time from work?

A. It might make more sense for a lot of other people. But there's something about the work ethic that goes to the core for Darline Slater in particular, whereby she would not allow herself not to work, and I finally took a fairly aggressive stance with her and facilitated a phone contact with her supervisor that she was not in a mental state to work. Her stress had become too excessive and she did not need to be at work. She didn't have the concentration abilities. She didn't have the focus. She didn't have the mental control. She didn't have the interpersonal skills.

Dr. Herzog confirmed that she had questioned claimant's objectivity and credibility to determine whether claimant's perceptions were reality based as opposed to delusional, and that she consistently found objective evidence to corroborate claimant's allegations.¹⁰ Dr. Herzog testified that although she did not know whether all of claimant's allegations were true, she thought that claimant accurately sensed "an incongruity between what the company policy should be or what the work ethic should be and what actually happened." Also, claimant correctly perceived the demands of her route and the number and size of packages that she delivered. Moreover, although claimant expressed some difficulty in her relationships with extended family, her people skills outside her relationships with management were generally validating: she described customers as giving, compassionate and fair; she was well liked by her customers; and her relationships with her family, marriage partner, church and friends were also intact.

Dr. Herzog concluded that, because there was no generalization in claimant's other walks of life, she was not likely paranoid, as paranoia generalizes to everyone and "not just to the people at work." Dr. Herzog reviewed the seven criteria for paranoia from the DSM- IV and concluded that claimant met only one of the seven criteria for paranoia: reading hidden meaning into benign remarks. She did not suspect deceit or exploitation because objective, collaborative pieces of Information provided a sufficient basis for her allegations in this regard. As an example, Dr. Herzog noted that she did not witness claimant's harassment by her first senior manager, Leonard Collins. However claimant's allegations were independently corroborated by claimant's husband and by the personnel manager from Memphis who met with claimant and her husband regarding Collins' conduct. She also testified that although she was not testifying as a forensic expert, she could make clinical judgments that harassing, oppressive and punitive events were occurring.

Dr. Herzog also testified that claimant could blow things out of proportion. When asked how she knew "what [claimant] reported accurately and what (claimant] blew out of proportion," she testified that claimant had a histrionic flair but that she would always come back to a base line level that would better enable her to reason through her problems:

There's a continuum in my opinion here, and it's not a black and white, all or none situation. But there was a prevalence and a consistency, in when I would question her about an incident, we would get back to what this middle ground reality was -- and that was for Darline to accept that something may have been handled in an unjust or unfair or disrespectful kind of way but to bring that back to a level where she could manage it. So my response is that she may have had some overreaction to something, but an overreaction does not mitigate the fact that there may have been a true occurrence. Everybody responds differently to stimuli ... but that doesn't mean that stress or the etiology or the causative factor is something that might not be wrong.

Dr. Herzog also concluded that she could not say whether claimant's mental impairment was permanent, but that claimant would need continued treatment. Claimant had stabilized and improved in her interpersonal comfort with other people since she had been off work. She has a better pattern of functioning except during a hearing or deposition.

When Dr. Herzog was asked if she were biased in favor of claimant since she had seen claimant so many times over the past few years, she replied that there was no reason for her bias regarding the work situation as that was not her role. She had no vested interest one way or the other in the case, and she was not intimidated by or scared of claimant. Dr. Herzog testified she still sees claimant on a weekly basis. She also testified her bills were reasonable and necessary.

Psychiatrist Dr. Mark Webb testified by deposition on July 14, 1998 that he saw claimant once for an hour and fifteen minutes on May 8, 1997. He also reviewed claimant's prior medical records from Armstrong Chiropractic Clinic, Methodist Medical Center, and Drs. Herzog, Summers, Vaughan and Smith. He testified claimant reported a 1994 injury when she tripped over a box and hurt her left shoulder and neck. She also reported a January 31, 1997 injury to her neck when she tried to lift a jammed door. She further reported that she had experienced difficulty with her nerves since 1984 when a male co-worker had touched her leg and tried to kiss her, and that another manager had made her undergo a pelvic examination. She did not report any significant family stressors other than several miscarriages.

Dr. Webb concluded that claimant had an adjustment disorder with mixed emotional features along with a personality disorder, not otherwise specified, mostly of histrionic and paranoid features. He attributed her impairment to her maladaptive personality problems which derived from childhood, not from her employment at Federal Express. He thought that her personality problems would make it difficult for her to return to work because she had a lot of interpersonal conflicts with people at work.

Dr. Webb testified he did not know whether the incidents of which claimant complained actually occurred, but he knew "in her mind it happened and it upset her." He also testified, "It's not really the job promotion or lack thereof, but more her-the way she perceives this . . . " He further testified that he did not "see where something caused her not to cope very well. In fact, the opposite. I see where her personality makes it difficult to interact and to work as sort of being a continuing problem."

Dr. Webb also did not attribute claimant's problems to her prior manager's alleged mistreatment, as the mistreatment occurred a long time ago and she continued to work and function quite well after their occurrence. He testified that if the managers' prior conduct had been significant or had aggravated her pre-existing problems, she would have taken off work or sought psychiatric treatment instead of continuing to work. Dr. Webb therefore concluded that he did not "see where there was really any great distress until we get to the job promotion and she gets the news and then she takes ... off for ... however many months she's been off work."¹²

Dr. Webb diagnosed claimant with an adjustment disorder instead of depression, as her condition had lasted no more than six months. However he testified that claimant's illness was severe, and that her global assessment of functioning was about sixty which meant that she had mild to moderate symptoms presently. He also testified he agreed more than disagreed with Dr. Herzog's diagnosis of claimant, although Dr. Herzog's diagnosis of depression/dysthymia indicated that she saw claimant's condition as more long term than short term. Dr. Webb admitted that he saw claimant only three months after her adjustment disorder began, and that his diagnosis of an adjustment disorder assumed, by definition, that claimant's impairment would resolve within six months. He also admitted that claimant should continue psychiatric treatment. He further admitted that the records he had been provided showed that Dr. Vaughan, who had treated claimant for about six months, Dr. Summers and Dr. Smith had all repeatedly stated that claimant's mental impairment was due to work related stress.
 

1. Claimant sustained a physical injury on or about February 3, 1997 as the term "injury" is defined in Section 71-3-3(b). Claimant testified that she injured her neck while attempting to lift the rear door of her truck on or about February 3, 1997. Michael Wright, the senior manager, testified that claimant gave the employer notice of a neck injury on February 3, 1997. Wright also testified that he had no information that claimant's injury did not actually occur on February 3, 1997. The employer's business records document that claimant gave notice of a neck injury on February 3, 1997 as required by Section 71-3-35.

The medical evidence also supports the occurrence of a neck injury on or about February 3, 1997. On February 5, 1997, claimant was hospitalized for treatment of a cervical strain. The medical histories that she related to hospital personnel on February 5, 1997, and to Drs. Herzog and Smith corroborate the occurrence of a work-connected neck injury on or about February 3, 1997. Moreover, Dr.-Smith testified that in February 1997, he treated claimant for a cervical strain attributable to a work-connected injury that had occurred earlier that month.

2. Claimant proved by clear and convincing evidence that she sustained a work-connected mental injury on or about February 3, 1997 as required by the definition of "injury" in Section 71-3-3(b). The Mississippi Supreme Court outlined the burden of proving a compensable mental injury in Fought v. Stuart C. Irby Co., 523 Sold 314, 317, 318 (Miss. 1988):

For a disability to be compensable, it must have arisen out of and in the course of employment. Miss. Code Ann. Section 71-3-3(b) (Supp. 1987). We shorthand this test by asking whether the disability is "work connected." The words formally used in the statute: "arising out of and in the course of have been held to present an inquiry whether the risk which has given rise to the injury is "reasonably incident to the employment," Big "2" Engine Rebuilders v. Freeman, 379 Sold 888, 890 (Miss. 1980), not whether the work was the proximate cause of the injury. The injury arises out of and in the course of the employment if the employment aggravates, accelerates or contributes to the disability as opposed to being the sole or principal cause. See Dunn, Mississippi Workers' Compensation Section 164 (3rd ed. 1982)
....

.... [B]eyond this, when a claimant seeks compensation benefits for disability resulting from a mental or psychological injury, the claimant has the burden of proving by clear and convincing evidence the connection between the employment and the injury. Smith & Sanders, Inc. v. Peery, 473 So.2d 423, 425 (Miss. 1985); Miller Transporters v. Reeves, 195 So.2d 95 (Miss. 1967); and Dunn's Mississippi Workers' Compensation Section 114 (3rd ed. Supp. 1984). Furthermore, to be compensable, a mental injury, unaccompanied by physical trauma, must have been caused by something more than the ordinary incidents of employment. Peery, 473 So.2d at 426; and Brown & Root Const. Co. v. Duckworth, 475 So.2d 813, 815 (Miss. 1985); and Johnson v. Gulfport Laundry & Cleaning Co., 249 Miss. 11, 18, 162 So.2d 859, 862 (1964).
....

.... To be sure, our law does not compensate disability attendant upon the general stress or normal human wear and tear of the workplace. Where, however, an employee experiences a series of identifiable and extraordinary stressful work connected incidents, benefits may be available.

As to (1) above, claimant's testimony that Collins engaged in inappropriate conduct/sexual harassment in 1984 is uncontradicted. Also, it is corroborated by claimant's history to Dr. Herzog, by her husband's credible testimony and by Michael Wright's testimony that claimant complained to him of these incidents in October or November 1996. As to (2) above, claimant's testimony regarding Pruitt's mistreatment of her from 1985 through May 1988 is uncontradicted. It is also corroborated by a current manager for the employer, Jean Madison, who described Pruitt's tenure as "hell." Both Madison and claimant's husband attested to Pruitt's custom of cursing his employees, using obscenities and making vile comments. Claimant's anguish over Pruitt's mistreatment is also documented by Dr. Herzog's records and by Ron Harpole's testimony that claimant continued to express her anxiety about these incidents years after Pruitt had left the Jackson station. As to (3), the employer did not dispute claimant's allegation that it would not accommodate her request for work closer to Jackson while her premature infant was in intensive care in 1989. Claimant's testimony regarding this point is also corroborated by claimant's husband and by claimant's history to Dr. Herzog. As to (4), the allegation that claimant feared drug dealers in unsafe neighborhoods where she delivered packages, including illegal drugs, from 1992 to 1997, her testimony is undisputed. Michael Wright testified it was not normal for a courier to be followed by drug dealers, although he did not dispute that this occurred to claimant. He also acknowledged that in 1996 claimant turned in a package later confirmed to contain drugs, and that the DEA and other law enforcement agencies worked at the Jackson station up to three days a week for the purpose of intercepting drug packages. As to (5), claimant's allegation that management did not acknowledge or sufficiently reduce the risk of danger posed by delivering drug packages to drug users in unsafe neighborhoods, the evidence establishes that Ron Harpole rode with her and helped her devise an emergency plan of action the day after she was blocked in by drug dealers at an apartment complex. Claimant testified that, before this incident, the employer merely ignored or laughed off her fears. Michael Wright testified at the evidentiary hearing that although claimant worked in some "bad" neighborhoods, couriers also unwittingly delivered drugs to Annandale and Northbay. As to (6), claimant's testimony that she performed a mentally and physically stressful job without the support of management from 1993 to 1997 is undisputed except by Michael Wright who spoke only to his tenure as senior manager from September 1995. Wendy Bell, a current employee who has worked at the Jackson station as a courier for fifteen years, testified that claimant's job was stressful and that such stress could have negatively affected claimant. Ron Harpole, claimant's former supervisor and an employee at the Jackson station for twenty years, testified that couriers' productivity is measured in stops per hour. Claimant's husband's testimony and Dr. Herzog's notes also repeatedly reference the daily stress of claimant's employment. As to (7), claimant's testimony that she endured chronic neck pain from September 1996 to February 1997 is corroborated by Dr. Smith's notes which show that he treated her for right-sided neck pain three times in August 1996. Also, Wright testified that claimant had complained about a jammed rear door on her truck and had "written it up" several times. Moreover, Mia Mosley testified that, before claimant's last day of work, claimant complained of neck pain, she said she did not want to leave work to seek treatment for her neck pain because it might jeopardize her bid for the new route, and she asked Mosley to pray for her because of her neck pain.

With regard to the medical evidence, Dr. Angela Herzog, a clinical psychologist and claimant's primary treating psychologist since 1993, concluded that claimant had experienced untoward events which exceeded the general stress or normal wear and tear of the workplace. Dr. Herzog explained that she questioned claimant's objectivity and credibility to determine whether claimant's perceptions were reality based as opposed to delusional, and that she consistently found objective evidence to corroborate claimant's allegations before February 11, 1997.¹³ Also, Dr. Herzog explained that although she was not testifying as a forensic expert in this case, she could make clinical judgments that harassing, oppressive and punitive events were occurring. Dr. Herzog also concluded that it was clear and convincing that the cumulative effect of these untoward, unreasonable and extraordinary events was the occurrence of a mental injury which became completely disabling on or about February 3, 1997. She testified that the unreasonable and extraordinary events of claimant's employment were particularly harmful to her because she had an over invested image of herself as a good worker: her family had taught her that an individual's self worth and validity were derived from being a good worker. Also, as Dr. Webb admitted, claimant's treating psychiatrists through the employee assistance program, Dr. Summers and Dr. Vaughan, found that her mental impairment was work related.

Having considered the record as a whole, including lay and medical evidence of claimant's work-related stressors from 1984 to 1997, and having observed, at length, the demeanor of the lay witnesses, this Administrative Judge finds that claimant proved by clear and convincing evidence that she sustained a work-connected mental injury on or about February 3, 1997 as required by the definition of "injury" in Section 71-3-3(b). Clearly, the improper conduct of both Collins and Pruitt rose to the level of untoward events that exceeded the general stress or normal wear and tear of the workplace. Pruitt's conduct, in particular, was heinous. In fact, both men's conduct toward claimant was so onerous that it resulted in their transfer to another station. Pruitt's mistreatment of claimant culminated in May 1988, after which she took off work for six weeks and sought treatment from a psychiatrist through the employer's employee assistance program. It is undisputed that claimant had never sought or received treatment from a mental health provider before May 1988, and that, since May 1988, she has intermittently sought therapy for work-related stress from various psychiatrists and psychologists through the employer's employee assistance program. Also, consistent with the testimony of her primary treating psychologist, Dr. Angela Herzog, the cumulative effect of claimant's other work-related stressors between 1988 and 1997, including the emotional stress of her chronic neck pain in 1996 and 1997, rose to the level of an untoward event. The combination of these untoward, unreasonable and extraordinary events between 1984 to 1997 with claimant's physical injury resulted in a mental injury that became occupationally disabling on or about February 3, 1997.

Although claimant's disappointment over the employer's rejection of her bid for another route on February 3,1997 was not an untoward event under Smith and Sanders, Inc. v. Peery, 473 So.2d 423 (Miss. 1985), claimant was "walking wounded" long before this incident. Clearly, she had a mental impairment that effected her ability to function at work before she learned that her bid was unsuccessful, if her unsuccessful bid was not, in fact, a product of her mental impairment. Also, although the employer argues that claimant's claim is motivated merely by revenge because the employer rejected her bid for another route, this argument reduces the facts of this case to one event on one day. As stated above, claimant clearly had a mental impairment before February 3, 1997, and to determine whether her mental impairment is work connected, it is necessary to consider her entire employment history from 1984 to 1997, not simply one event on one day.

This Administrative Judge also finds that the medical evidence supports the occurrence of a work-connected mental injury on or about February 3, 1997. As noted above, with the exception of Dr. Webb, the medical evidence establishes that claimant sustained a work-connected mental injury. This Administrative Judge further finds that the opinion of Dr. Webb, the employer medical evaluator who saw claimant for one hour and fifteen minutes, has less probative value than the opinions of claimant's treating psychologist, Dr. Herzog, her treating psychiatrists, Drs. Vaughan and Summers, and her treating physician, Dr. Robert Smith, that she has a work-connected mental impairment. Also, the basis for Dr. Webb's opinion that claimant's impairment was attributable to her "personality" instead of to her work, as she otherwise would have taken off work and sought treatment before February 3, 1997, is incorrect. The record is undisputed that claimant took off work for six weeks and began therapy the day after Mike Pruitt forced her to undergo a pelvic examination by a doctor of his choosing.

In conclusion, this Administrative Judge finds that although Dr. Herzog testified that claimant has a histrionic nature and a fragile sense of self, there is no evidence, aside from that offered by Dr. Webb, that these personality traits alone impaired or disabled claimant, Also, claimant clearly has other personality traits, such as a strong work ethic and a desire to succeed, that mitigated in favor of the employer and against the occurrence of a mental injury. Moreover, a familiar concept in workers' compensation law is that "the employer takes the worker as the worker is found - with all the strengths and weaknesses the worker brings to the job." Chapman, Dependents of v. Hanson Scale Co., 495 So.2d 1357, 1360 (Miss. 1986).

2. Claimant remains temporarily totally disabled because of her mental injury. Dr. Herzog testified that claimant remains temporarily totally disabled from employment due to her work-related mental injury.

3. Claimant is entitled to temporary total disability benefits at the rate of $270.67 per week beginning February 3, 1997 and continuing to a date of maximum medical improvement to be established by competent medical evidence.

4. Claimant is entitled to all medical services and supplies required by the nature of her injury and the process of her recovery as provided in Section 71-3-15 and the Medical Fee Schedule.

5. Claimant is entitled to a 10% penalty on all untimely paid installments of compensation pursuant to Section 71-3-37(5).

IT IS THEREFORE ORDERED that employer pay compensation benefits to claimant as follows:

1. temporary total disability benefits at the rate of $270.67 per week beginning February 3, 1997 and continuing to a date of maximum medical improvement to be established by competent medical evidence;

2. all medical services and supplies required by the nature of claimant's injury and the process of her recovery as provided in Section 71-3-15 and the Medical Fee Schedule; and

3. a 10% penalty on all untimely paid installments of compensation pursuant to Section 71-3-37(5).

SO ORDERED, this the 29th day of October 1999.

DENEISE TURNER LOTT
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary
___________________________

1. Claimant's first child died shortly after a premature birth in November 1986.

2. Claimant admitted she had been written up on occasion over the last fifteen years but she had never been suspended. She was aware that a driver could be suspended for receiving three tickets in 12 months.

3. Claimant testified that she had thirteen years' seniority with the employer and Mosley had six months' seniority with the employer.

4. Slater testified he often heard Pruitt expressing obscenities to employees in the background of his telephone conversations with claimant.

5. Mosley recalled that claimant worked the rest of the day.

6. Claimant testified that Wendy Bell was hired two years after she was hired by the employer, and that Bell did not like her family.

7. Dr. Smith testified that claimant's prior neck injuries had resolved by February 1997.

8. Dr. Herzog testified she saw claimant six times in November and December 1993.

9. Dr. Herzog testified she saw claimant eleven times for anxiety and depression in 1994.

10. Dr. Herzog testified that she would be remiss not to look for corroboration, as she would not be able to properly diagnosis claimant without such corroboration.

11. Dr. Herzog also concluded that, once claimant's mental impairment became severe, her other personal skills were compromised and her activities of daily living were diminished.

12. On cross-examination, Dr. Webb testified he did not know whether his opinion regarding claimant was favorable to the employer or to the claimant.

13. Dr. Herzog testified that claimant's impairment had become so debilitating by the time she saw her on February 11, 1997, that her judgment, self-control and capacity to attend to the activities of her daily living were severely impaired.