By Kevin L. Connors, Esquire
A recent decision by the Pennsylvania Supreme Court ineffectively illustrates the legal/factual tightrope that Courts must walk, when deciding the compensability of mental/mental claims under the Pennsylvania Workers’ Compensation Act.
The decision being examined is the Pennsylvania Supreme Court’s October 30, 2013 Opinion in the workers’ compensation claim of Philip Payes v. WCAB (PA State Police).
Parenthetically, the Supreme Court’s Opinion, authored by Justice Seamus McCaffery, formerly of the Superior Court, formerly of the Philadelphia Municipal Court, is a literary treasure trove of footnotes, reviewing and analyzing the body of case law that has developed around mental/mental workers’ compensation claims in Pennsylvania.
In order to set the background for this discussion, it is necessary that we briefly visit Pennsylvania workers’ compensation law on the evidence required for proof of a mental/mental injury.
As most of you are aware, Pennsylvania’s 1972 Amendment of the Pennsylvania Workers’ Compensation Act opened the door for mental/mental injuries to be considered, at least in the context of a workers’ compensation Judge awarding benefits, although, to be compensable, mental/mental injury claims are claims that carry one of the highest burdens of proof under the Pennsylvania Workers’ Compensation Act, as evidenced by the legion of cases that have established the legal standards, in terms of burdens of proof, for proving these kinds of injuries, which can otherwise be categorized, to the casual observer, as being highly subjective responses to what might otherwise be characterized as being normal responses to routine job stimuli.
As short list of cases dealing with claims of mental/mental injuries would include reference to the following:
• Martin v. Kecthum, 568 A.2d 159 (Pa.1990);
• Wilson v. WCAB (Aluminum Co.), 669 A.2d 338 (Pa.1996);
• Davis v. WCAB (Swarthmore), 751 A.2d 168 (Pa.2000); and,
• RAG (Cypress Emerald Resources, L.P. v. WCAB (Hopton), 912 A.2d 1278 (Pa.2007).
There are, no surprise, a legion of lower Court Opinions, rendered by the Commonwealth Court, in the course of ruling on mental/mental injury claims.
To dig even further into the distinction between mental/mental injury claims, and other types of claims that have been found to be compensable under the Pennsylvania Workers’ Compensation Act, Courts reviewing mental/mental injury claims have required Claimants seeking to prove the occurrence of a work-related mental/mental injury claim to prove that the injured worker has developed a mental disability resulting from exposure to abnormal working conditions.
The subjective response to normal working conditions is not, in and of itself, sufficient to establish entitlement to workers’ compensation benefits for mental/mental injury claims in Pennsylvania.
So, do we feel lucky?
In Payes, a Pennsylvania State Trooper sought mental/mental workers’ compensation disability benefits, claiming that he was exposed to abnormal working conditions as a result of a mentally-infirmed woman running in front of the Trooper’s State Police car, as a result of which, you guessed it, the mentally-infirmed woman sustained fatal injuries, with the State Trooper attempting to revive the mentally-infirmed woman, through mouth-to-mouth resuscitation, as the woman bled from her mouth, ultimately succumbing to the injuries that she sustained while being flipped over the State Trooper’s Police vehicle.
All of this was captured by a camera mounted in the Trooper’s Patrol car, and a copy of that DVD was introduced into evidence before the worker’s compensation Judge.
The State Trooper was transported from the accident scene to the hospital, to be tested for exposure to the deceased woman’s blood, and the State Trooper was then allowed to be off of work for five weeks post-incident.
The State Trooper then returned to work, but he was only able to perform office work, and he never returned to active patrol duties.
After working for about four days, the State Trooper reported having recurring feelings of anxiousness and stress, such that he believed that he could not continue to work, in any capacity, as a State Trooper.
The accident had occurred on November 29, 2006, and the State Trooper last worked for the Pennsylvania State Police on January 5, 2007.
The State Trooper then filed for workers’ compensation benefits, with the State Police denying the claim, on grounds that the Trooper had not sustained an injury, and that if the Trooper had sustained an injury, limited to his exposure to the decedent’s blood, that the Trooper had not been disabled by that exposure, or by any alleged post-traumatic stress.
Denied workers’ compensation benefits, the Claimant filed a Claim Petition, alleging that he had sustained work-related post-traumatic stress disorder as a result of the motor vehicle accident.
He sought temporary total disability benefits, medical expenses, and counsel fees.
In the course of hearings before the Workers’ Compensation Judge, the Trooper testified that he was unable to work because of the incident resulting in the mentally-infirmed woman’s death. He also presented Expert Medical testimony, not identified in the Supreme Court’s Opinion, from a treating psychiatrist and psychologist, both of whom had diagnosed the Trooper with having sustained post-traumatic stress disorder, related to the incident of November 29, 2006, resulting in the Trooper being disabled by the work-related diagnosis.
Defending the claim, the State Police presented evidence of their Police Cadet training procedures, to include training for stress management, as well as training for responding to automobile accidents and first aid at crash sites.
The State Police also presented testimony from their own psychiatric expert, who testified that the Trooper had fully recovered from any post-traumatic stress disorder that might have been related to the incident, as well as presenting the testimony of two State Troopers who had worked with the Claimant, and thus testified as to the Trooper’s pre-incident job duties, and what he did when he attempted to return to work.
Considering the evidence presented by the Trooper and the State Police, the WCJ found in favor of the Trooper, finding that the Trooper had established that he sustained a work-related mental/mental injury, as evidenced by his own testimony, and that of his psychiatric and psychological expert witnesses, with the WCJ finding that the Claimant had proven a work-related mental injury resulting from abnormal work-related mental stimuli.
Although the WCJ did find that State Troopers might be expected to encounter violent situations, in the course of performing their duties as State Troopers, the WCJ found that the work-related mental stimuli that the Trooper had been exposed to was not stimuli that Troopers would normally encounter, or would be expected to encounter, with the WCJ finding:
• “State Troopers are not in the normal course of their duties exposed to the circumstances that occurred in this case; to wit, a mentally-disturbed individual running in front of a Trooper’s vehicle while he is operating the vehicle, for no apparent reason. Further, what occurred at the point of impact and immediately thereafter are not working conditions which normally occur for State Troopers (Appellant attempted to but failed to resuscitate the woman he killed on Interstate 81 while vehicular traffic was oncoming, waiting for assistance from other Troopers.)”
In reliance upon that and other factual findings, the WCJ awarded workers’ compensation benefits to the Trooper, with that award being appealed by the State Police to the Workers’ Compensation Appeal Board.
On Appeal, the WCAB reversed the Judge’s granting of the Trooper’s Claim Petition, on grounds that “while being involved in a fatal accident may be traumatic and not routine for a State Trooper, we cannot agree that this incident constitutes an abnormal working condition given the nature of the Appellant’s stressful and perilous profession.”
If that were not already clear, the WCAB stated:
“Appellant agreed that being exposed to traumatic and dangerous conditions and to death and trauma was a normal part of his job as a State Trooper. Although he testified that he thought he would be involved in someone’s death, he did admit he was trained at the Academy in the use of deadly forces, among other things. While he stated he never heard of this kind of event happening to anyone else on the job, Major McDonald (the State Police’s key witness) credibly testified that a member of the Department had a similar situation years ago where someone ran in front of a patrol car and was struck and killed, and he provided Appellant with that person’s contact information. Thus, encounters involving fatalities were a foreseeable part of the job, and not an unheard of occurrence.”
No surprise, the Trooper appealed the Appeal Board’s Ruling to the Pennsylvania Commonwealth Court, which affirmed the WCAB’s Decision, holding as a matter of law that the Trooper’s alleged injuries did not result from an abnormal working condition.
Coincidentally, there is no significant discussion, in either the Pennsylvania Supreme Court’s Opinion, or in the Commonwealth Court’s Opinion, 5 A.3d 855 (Pa.Cmwlth.2010), dealing with the fact that the Trooper was not actually “on duty” at the time of the accident, as he was in route to his State Trooper barracks, driving a State Police vehicle, an issue not deemed to be relevant, either to the parties or to any of the deciding Courts, as the Trooper was driving a State Police-issued vehicle, thereby effectively rendering the Trooper to be in the course and scope of operating that vehicle.
Twice-denied, the Trooper appealed to the Pennsylvania Supreme Court, and we now know that the Pennsylvania Supreme Court, in the Opinion authored by Justice McCaffery, concluded that the Trooper’s evidence was sufficient to establish that the Trooper had been exposed to an “unusual” event that was actually “abnormal”, as the majority Opinion held that the question of whether the evidence supported the occurrence of a work-related mental/mental injury was a question of law and fact, based upon “psychiatric injuries” being “highly fact-sensitive”, and for “actual working conditions to be considered abnormal, they must be considered in the context of specific employment.”
In finding that the Trooper had proven that he sustained a work-related mental/mental injury that was disabling, the Supreme Court, in the course of restoring the WCJ’s granting of the Claim Petition, held that the Trooper had established “with objective evidence”, that he not only suffered a work-related injury, but that the injury resulted in disability preventing the Trooper from being able to return to work as a State Police Officer.
At great lengths, the Supreme Court reasoned that the Trooper’s injuries were not a “subjective reaction to the ordinary vicissitudes” of his job as a State Trooper, but were a reaction to a highly unusual singular event, clearly distinguishable from being characterized as being a normal working condition, as opposed to a benefit-supporting abnormal working condition requirement.
Reversing the Commonwealth Court, the Supreme Court remanded the case back to the WCJ, to again grant the Trooper’s Claim Petition.
A concurring and dissenting Opinion was authored by Chief Justice Ronald Castille, with Justice Eakin authoring a dissenting Opinion, stirring the cockles of our defense-constricted hearts.
As indicated by Justice Castille in his concurring-dissenting Opinion, this was viewed as a “seemingly close case.”
Ultimately agreeing with the end result, Justice Castille disagreed with the Majority’s exposition of the standard of review, as Justice Castille found the claim to be compensable, in reliance upon it being a singular event, and not anticipated to be within the scope of a State Trooper’s responsibility, in the normal course of performing his job.
Dissenting from the Majority Opinion, Justice Eakin rendered a reasoned dissection of the Majority’s Opinion, finding that Opinion to have misapprehended the findings rendered by the WCJ, as well as having blurred the requisite lines between what are questions of fact, mixed questions of fact and law, and questions of law, in terms of compensability issues.
It was, and is, the conclusion of Justice Eakin, that the “abnormal working conditions test is a deduction from other facts and is purely the result of legal reasoning: therefore, this Court may judge the correctness of the decision below and draw its own conclusions upon Appellant review, without being shackled by factual findings made by a WCJ, which are not to be interpreted as the ultimate determination of legal conclusions, but only as the facts that may or may not be found to be support for the ultimate legal conclusions.”
What does this ultimately mean for the administrative trial of mental/mental injury claims in Pennsylvania?
It means that, for certain occupations that are not normally exposed to very stressful and highly unusual events, particularly ones involving human tragedies, i.e., violent deaths, homicides, suicides, etc., that the burden of proof for the compensability of mental/mental injury claims that might arise from exposure to those types of events might now be easier to survive the intense glare of what was otherwise intended to be a highly objective burden of proof when presenting a mental/mental injury claim for workers’ compensation benefits in Pennsylvania.
Does Payes tip the scales in favor of first responders, State Troopers, ambulance personnel, fireman, and does it, by its very description of what the Trooper was exposed to in Payes, articulate a theory of liability for mental/mental injury claims that will become the textbook in their presentation to Workers’ Compensation Judges?
And the answer is, “well, do you feel lucky?”
By way of practical application, these types of cases are highly subjective, highly sympathetic, typically involving people who stand between what we believe to be normal, and what is otherwise aberrant or abnormal, either in terms of human behavior, or in terms of catastrophic events that we, as humans, are exposed to in those “singular” occurrences.
Was the event in Payes truly unforeseeable, truly “singular”, truly something never contemplated to occur to a State Trooper, trained to be able to deal with almost every conceivable event that might occur, in the course of humans being inhuman, or was it simply a freakish but foreseeable occurrence resulting in a subjective reaction that should not have triggered an award of compensation?
Well, how lucky do you feel?
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