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Workers Comp, Yong Li’s Brief, Reviewing Board

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