Kelly's Case

Hennessey, C.J.

(dissenting, with whom Wilkins and Lynch, JJ., join). Today the court has held that an employee is entitled to workers’ compensation for an emotional injury caused by news of her economically-motivated work transfer. By reversing the board’s finding that Kelly did not suffer a work-related injury within the meaning of G. L. c. 152, § 26, the court has expanded the scope of our workers’ compensation law far beyond what the Legislature ever intended. As a result, *690 the critical distinction between workers’ compensation and unemployment insurance is disappearing. Accordingly, I dissent.

An employee is entitled to compensation under G. L. c. 152, § 26, where his or her injury — whether physical or emotional — arose “out of and in the course of” employment. Zerofski’s Case, 385 Mass. 590, 592 (1982), quoting Caswell’s Case, 305 Mass. 500, 502 (1940). In the past, we have recognized that “[m]uch of the responsibility for separating injuries that are sufficiently work-related from those that are not rests with the Industrial Accident Board, which must determine as a matter of fact whether a causal connection exists between employment and injury.” Zerofski’s Case, supra at 594. See Mahoney’s Case, 337 Mass. 629, 632 (1958) (“A decision upon the question of causation was . . . within the province of the board to determine”). On judicial review the findings of the reviewing board must be accepted as final unless they are wholly lacking in evidential support or tainted by error of law. Korsun’s Case, 354 Mass. 124, 125 (1968), and cases cited. We have given particular deference to an agency’s interpretation of its governing statute where “the statute itself vests broad powers in the agency to fill in the details of the legislative scheme.” Amherst-Pelham Regional School Comm. v. Department of Educ., 376 Mass. 480, 492 (1978). I think the court here has failed to accord appropriate deference to the board’s construction of the controlling statute as applied to the facts of this case. This is emphatically evident in light of the fact that the board’s decision is consistent with our prior relevant decisions.

Where employees have received compensation for mental or emotional disorders caused by nonphysical work-related trauma, we have previously relied on findings by the board that the injury resulted from a “single traumatic event ... a stress greater than the ordinary stresses of everyday work,” Fitzgibbons’s Case, 374 Mass. 633, 638 (1978), or a series of “specific, stressful work-related incidents,” Albanese’s Case, 378 Mass. 14 , 18 n.4 (1979). See Foley v. Polaroid Corp., 381 Mass 545, 550 (1981). We have said that what is critical in determining causation is not the subjective feelings *691 of the employee but the objective event “triggering the . . . feelings.” Fitzgibbons’s Case, supra at 639.

In this case, the testimony before the single member indicated that the employee suffered disabling depression when faced with the loss of a satisfying job and a transfer to a less desirable assignment. There was no evidence that the layoff was motivated by other than economic reasons or that the information was given to the employee in a particularly stressful manner. Nor did the board accept evidence that the employee’s treatment in her new assignment aggravated her emotional condition.

Thus, in the circumstances of this case, the single member and the review board were fully warranted in concluding that the event triggering the employee’s depression — the termination of her position and her transfer within the company — did not constitute the type of “mentally traumatic [event]” which would be sufficient to identify employment as the cause of her disability. Fitzgibbons’s Case, supra at 638. Rather the type of decision made here is “common and necessary to . . . a great many occupations,” Zerofski’s Case, supra at 595, and while such decisions may understandably cause stress among some affected employees it is no “greater than the ordinary stresses of everyday work,” and is therefore noncompensable. Fitzgibbons’s Case, supra.

When we compare the events causing the employees’ mental injuries in the Fitzgibbons, Albanese, and Foley cases, it becomes apparent that we are not presented with a similarly identifiable stressful work-related incident here. In Fitzgibbons’s Case, supra, the employee suffered an emotional breakdown and subsequently committed suicide after learning that a subordinate had died while performing an assigned duty. In Albanese’s Case, supra, the claimant was a “working foreman,” caught between the conflicting demands of labor and management, who became incapacitated after a series of workplace confrontations in which management attempted to undermine his authority. In Foley v. Polaroid Corp., supra, the employee’s emotional injury resulted from his employer’s conduct in response to charges of rape and assault brought against the employee by a coworker. The employer carried out a private *692 investigation of the complaint resulting in the filing of criminal charges, compelled the employee to take a leave of absence pending trial, discouraged other employees from testifying on his behalf, and subsequently transferred the employee, after he was acquitted of the charges, to a new work location where he received no assignments.

In all three prior cases the events causing the employees’ injuries were unusually stressful by any objective criteria. Here, however, the employee’s depression was precipitated by notice of an ordinary employment decision. The extraordinary nature of her emotional response reflected her admitted apprehension over the prospect of unemployment. In these circumstances, “[ajpprehension over the prospect of losing one’s job does not arise ‘out of the nature, condition, obligations or incidents of the employment. ’ . . . Rather it is a state of mind which arises from the common necessity of working for a living. Social legislation designed to relieve the consequences of losing one’s job is found elsewhere.” Korsun’s Case, 354 Mass. 124, 128 (1968).

The court’s opinion incorrectly states that we have never before suggested that a stricter standard of proof is required under G. L. c. 152, § 26, for establishing the causal nexus between employment and emotional injury. In fact, we have never before allowed compensation for emotional injuries without proof that the injuries resulted from particularly stressful work-related incidents. See Albanese’s Case, supra at 18 n.4; Zerofski’s Case, supra at 595 n.3. We have emphasized (Fitzgibbons’s Case, supra at 639) the nature of the objective event which triggered the emotional reaction of the employee to determine whether an emotional injury is sufficiently work-related, and this is the reasoning which has been followed by several other jurisdictions. See Seitz v. L & R Indus., 437 A.2d 1345 (R.I. 1981) (psychic injury due to routine transfer to new work location was not compensable); School Dist. No. 1, Village of Brown Deer v. Department of Indus., Labor & Human Relations, 62 Wisc. 2d 370 (1974) (teacher’s depression on learning student council recommended her dismissal was not compensable). Cf. Elwood v. State Accident Ins. Fund *693 Corp., 67 Or. App. 134 (1984) (stressful, work-related events, including termination, contributed to compensable mental disorder); Rega v. Kaiser Aluminum & Chem. Corp., 475 A.2d 213 (R.I. 1984) (injury compensable due to excessively stressful firing, rehiring, and deprivation of pension benefits). See Note, Determining the Compensability of Mental Disabilities and Workers’ Compensation, 55 S. Cal. L. Rev. 193 , 194-199 (1981); Joseph, The Causation Issue in Workers’ Compensation Mental Disability Cases: An Analysis, Solutions, and a Perspective, 36 Vand. L. Rev. 263 , 304-305 (1983).

In our previous cases we have required a showing of one or more specific stressful, traumatic events as the cause of the emotional jury. By departing from those limits, the court has opened workers’ compensation to distressed claimants who have simply experienced economically inevitable terminations and transfers. I think the court has departed from the legislative intent, and I also think that this judicial venture will invite claims in such numbers as to have a substantial economic impact upon employers.