Acknowledging the forever infamous and early-on, career-defining line by Clint Eastwood, acting out a justice-seeking Jungian communal subconscious, as the pistol-packing but never quite sure of the number of bullets in his gun’s chamber, Dirty Harry, the character that most of us secretly revere for his brutal but impatiently honest righteousness, now would be an excellent time to pause that flashback thought, to reflect upon the Pennsylvania Commonwealth Court’s recent punk-like bull’s-eye, hitting its target head-on, in its opinion in Pennsylvania Liquor Control Board v. WCAB (Kochanowicz), circulated on September 20, 2011.
Continuing a trend illustrating the extremely difficult burden borne by Claimants seeking compensation benefits for “mental/mental” injuries, where the claim is emotional or psychological trauma, without any physical injury whatsoever, the Commonwealth Court held, reversing both the Worker’s Compensation Judge and the Worker’s Compensation Appeal Board, that a Pennsylvania Liquor Control Board store manager, who claimed a work-related psychic injury as a result of being held up at gun point in a state-operated retail liquor store in Morrisville, Pennsylvania, was not entitled to an award of worker’s compensation benefits, as the Claimant had been subjected to “normal working conditions”.
So, do you feel lucky?
Honestly, in all the excitement, “I am not sure whether I fired five or six commas”.
So, do you feel lucky?
In an all-to-famous standoff, obviously lost by the bank robber in the Dirty Harry movie, the bank robber guessed wrong, and no one either seeing the movie or reading this bullet, ever doubted that Dirty Harry did not have one more bullet left in his Magnum .345, the “most powerful handgun in the world”, able to “blow your head clean off”.
That cinematic image still resonates with such quirky decisiveness, both by Dirty Harry, who we know, just wanted to “blow the bank robber’s head clean off”, and the bank robber who obviously bet wrongly, that the potential reward was greater than the obvious risk.
And how does that hip 70s’ era movie superimpose itself upon the case and facts in question?
In truth, we are not really sure we care, beyond simply wanting to replay the movie, and line, over and over again, for its all-too-righteous finality.
So what “working conditions” were considered to be “normal”, for a retail liquor store manager, in the Commonwealth Court’s infinite wisdom, as the relevant facts were:
- The Claimant was employed by the Pennsylvania Liquor Control Board;
- The Claimant was a store manager;
- The Claimant was robbed at gunpoint;
- During the robbery, the perpetrator pointed two guns at the Claimant;
- During the robbery, the perpetrator prodded the back of the Claimant’s head with a gun;
- In the course of the robbery, the perpetrator tied the Claimant and a co-worker to chairs with duct tape; and,
- The perpetrator stole money from both a store cash register, and the store office, before fleeing.
Normal or abnormal?
And the standard always is in “mental/mental” cases, not whether the Claimant feels lucky, not whether the Claimant knew or should have known how many bullets might be left in Dirty Harry’s .345 Magnum, not whether or not the Claimant should have known that there was one more bullet left in Dirty Harry’s .345 Magnum, but was what happened to the Claimant in this case, a normal or abnormal working condition for a retail liquor store manager, as “mental/mental” injury claims require an analysis as to whether the condition causing the “mental/mental” injury is one which is normal or abnormal, not in terms of the individual Claimant, but in terms of the specific job being performed by the Claimant, while subjected to the condition allegedly causing injury.
So what was “normal” about what happened to the Claimant, as post-robbery, the Claimant began seeking psychiatric treatment, testifying that he thought about the robbery every day, that it disrupted his sleep, caused nightmares, anxiety, stress, and that he had difficulty relating with his family, resulting in the Claimant being prescribed Xanax, although he believed he was unable to return to his job, out of “fear for his life”, in that he was concerned about potentially being the victim of a similar robbery in the as-yet-to-arrive future.
Although the Claimant had never been the victim of or a witness to a violent crime before the robbery that traumatized him, the Claimant did admit, before the Worker’s Compensation Judge, that the store was in a geographic area that was not “low risk”, that the store had a high volume of shoplifting, occurring on almost a daily basis, and that customers considered to be safety risks routinely visited the store.
The Claimant also testified that the Liquor Control Board had specific protocols for dealing with robberies, and like emergencies, and that the Claimant himself had received training in emergency procedures, having undergone the employer-sponsored training three times before the robbery.
The Claimant had also been given, and acknowledged receiving the same, a management pre-robbery directive, warning LCB employees that violent crimes were a risk associated with their employment, in the course of which they might be exposed to both robberies and attempted robberies.
Moreover, the Claimant also agreed that he had been given specific instructions regarding emergency procedures by his District Manager, and that he had received a pre-robbery notification, via email, that an LCB store not far from where the Claimant was working, had been robbed before the robbery allegedly traumatizing the Claimant.
Diagnosed with post-traumatic stress disorder by a psychiatrist about one month after the robbery, the Claimant was also forensically evaluated by a defense psychiatrist, who testified that Claimant did, in fact, sustain a post-traumatic stress disorder injury, as a result of the robbery, although the defense psychiatrist did not believe that the Claimant was disabled for any psychiatric reason, and that the Claimant was capable of returning to his pre-injury position, as a retail liquor store manager.
The Employer also presented rather extensive testimony from its training specialist, which evidence was critical in terms of establishing the workplace violence training program that the Employer had established well back in the 1980’s, as its employees were routinely subjected to robberies, thefts, and other violent crimes. The intent of that training program was to make employees aware of what might happen, as well as how to deal with situations when they occurred.
The Employer witness testified that he had personally trained the Claimant on workplace violence procedures, on at least two occasions before the robbery causing the Claimant’s anxiety. The Claimant had also been receiving monthly training from his District Manager, as to what to do in the event that a violent crime occurred while working.
The Employer witness also testified that violent crimes were a risk that all employees were subjected to, because of the nature of the Employer’s business, with the Employer witness being able to identify 99 armed robberies having occurred in LCB stores, within geographic proximity to the store where the Claimant worked, over a span of five or six years before the robbery traumatizing the Claimant had occurred.
Accepting the testimony of the Claimant, the Claimant’s treating psychiatrist, the Worker’s Compensation Judge granted the Claimant’s Claim Petition, finding that the Claimant had sustained his burden of proving that he had been injured due to his having been subjected to “abnormal working conditions”, with the workplace violence that the Claimant had experienced having caused his work injury, a psychic injury.
Appealing the Judge’s Decision, the Employer contended that the event triggering the “psychic” injury, being the armed robbery, was, in fact, “normal”, for not only the Claimant’s job, as a retail liquor store manager, but also for the industry, involved as it is in retail liquor sales.
Citing to the Pennsylvania Supreme Court’s landmark decision in Martin, establishing the standard for the burden of proof in the “psychic injury” cases, the Commonwealth Court held that a “psychic injury” case, meaning one without any physical trauma or symptomatology, carries with it the burden of proving that the injured employee “was exposed to abnormal working conditions and that his psychological problems are not a subjective reaction to normal working conditions.” Martin V. Ketchum, 568 A.2d 159 (1990).
Highly fact-sensitive “psychic injury” cases and the alleged working conditions causing injury, must be analyzed and considered in the context of the specific employment.
It is an analysis that is not driven by the injury, but is completely focused on the job, in terms of whether the injury resulted from working conditions abnormal to the job being performed when the injury occurred.
Another factor considered extremely relevant by the Commonwealth Court in this case, was whether the “working conditions” causing injury, herein, the robbery, were foreseeable or anticipated before the event in question by the Employer. This factor developed out of a line of cases that dealt with prison employees and public transportation employees, who were, in the normal course of their work environment, routinely exposed to violent crimes.
In reliance upon the workplace violence training program, long-utilized by the Employer, establishing not only that the event causing the Claimant’s injury was both foreseeable and had been anticipated by the Employer, such that the Claimant himself should have anticipated the possibility of being robbed at gunpoint, especially with the frequency with which it occurred in the industry in which the Claimant was employed, retail liquor sales, the Commonwealth Court found that the robbery was not an “abnormal working condition”, and was not, therefore, compensable.
So what is the significance of this decision, in the context of “abnormal working condition” compensation cases?
Well, for one, the Commonwealth Court spent absolutely no time whatsoever analyzing the Claimant’s “reaction”, often characterized as having been “subjective”, in “abnormal working condition” cases, as the entire focus of the Commonwealth Court’s reason was predicated on the foreseeability of the Claimant being the victim of a violent crime while working.
And no less true, the Court deliberated at great length on the claim-dispositive relevance of the Employer’s workplace violence training program, particularly in terms of how the program trained the employees in not only what to do in the event of workplace violence, but also in terms of its frequency and foreseeability.
Obviously, the extent to which the Employer had maintained a consistent and documented workplace violence training program became the critical fact in the Commonwealth Court reversing the prior decisions, by both the Appeal Board and the Worker’s Compensation Judge.
No less obvious, this decision is fairly industry-specific, clearly directed at retail, and is also geographically-relevant, given that the area where the Claimant worked was regarded as being prone to violent crime; had the robbery occurred in an area less crime-prone, would that mean that the working conditions might be abnormal?
And what would Dirty Harry think, normal or abnormal?
Come to think of it, in all the excitement, we are not quite sure whether we used six commas or a semi-colon!
A dissenting opinion was filed by the Honorable Cohn Jubelirer, as he concluded that the Claimant had, in fact, sustained a “psychic workplace injury”, which was “incontrovertibly attributable to a specific abnormal workplace event”.
Judge Jubelirer would not only conclude that the injury was compensable, but he would also conclude that the injury occurred as a result of “abnormal working conditions”.
The dissent is primarily predicated on arguing that the majority opinion violated the rules of appellate review, by substituting its judgment for that of the deciding fact finder, the Worker’s Compensation Judge, with regard to the Claimant’s workplace violence training program attendance and the Employer’s statistics regarding the frequency and occurrence of violent workplace events.
In short, Judge Jubelirer argued that “Were we to paint all robberies with the same brush and take the position that robberies are foreseeable and, therefore, an armed robbery is normal, we would abdicate our responsibility to review these matters on a case-by-case basis.”
Okay, it kind of makes sense, and it certainly is an excellent decision for the Employer and their insurer, but its practical application might be limited to specific industries, where risks can be narrowly defined, in terms of their potential psychic steerage in the dark pools of anxiety.
Certainly, there would be much more “play” in this case, if the Claimant had been able to assert some type of physical injury, as “physical/mental” injuries are much easier to prove in terms of compensability, as there is an objective verifiable physical injury, not dependent upon subjective criteria as to whether the working conditions were or were not “abnormal”.
The bottomline being, if in doubt, ask a lot of questions, dig deeply, and always make the Claimant prove the tough “do you feel lucky” claim.
– By Kevin L. Connors
Trust us, we just get it! It is trust well spent!
Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.
With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.