ANALYZING FORESEEABILITY AND PHYSICALITY IN MENTAL/MENTAL WORKERS’ COMPENSATION CLAIMS UNDER PENNSYLVANIA WORKERS’ COMPENSATION LAW
By Jeffrey D. Snyder, Esquire and Kevin L. Connors, Esquire
Under Pennsylvania Workers’ Compensation Law, it is absolutely clear that there must be objectively abnormal working conditions, in the context of an Employee’s specific job, in order for a mental/mental injury claim to be found compensable.
The mere subjective reaction to normal working conditions is not compensable, under a legion of Pennsylvania Workers’ Compensation Decisions.
An extraordinary event, that might not be perceived to be reasonably foreseeable by an Employee, can, however, satisfy a Claimant’s burden of proving objectively abnormal working conditions.
This principle was central to the Pennsylvania Supreme Court’s recent Opinion in Payes v. WCAB (Pennsylvania State Police), (10/30/13), with the Supreme Court reviewing and analyzing prior Appellate authorities addressing issues of Employee training in the context of determining compensability for mental/mental injuries.
The intent of this article is to review Pennsylvania Workers’ Compensation Decisions that have dealt with situations where an Employee’s at-work training has limited the Employee’s ability to prove the occurrence of a mental/mental injury, as Claimants have been unable to prove abnormal working conditions due to specific job training that has been provided by their Employers.
I. McLaurin: Training and Frequency Incidence = Normal Working Conditions:
In McLaurin, the Claimant was employed by SEPTA, the regional transportation authority in Southeastern Pennsylvania. McLaurin v. WCAB (SEPTA), 980 A.2d 186 (Pa. Cmwlth., 2009).
The Claimant had been employed by SEPTA for six months.
He was working as a Bus Driver when he was accosted by a man brandishing a gun.
Ultimately, the man put the gun away and left the bus.
No word on whether he paid with a SEPTA token.
McLaurin then claimed that he had sustained a mental/mental injury, in the form of post-traumatic stress disorder, with there being no claim of any physical injury sustained by the Claimant.
In McLaurin, the focus of the defense of this claim was the presentation of testimony by SEPTA witnesses regarding SEPTA’s training of its Bus Drivers. All new Bus Drivers are trained to expect dangerous and potentially violent encounters with SEPTA passengers, a reality of life on public transportation in dense metropolitan areas.
The newly-hired Bus Drivers were given training on how to deal with potentially difficult and confrontational situations. The history of assaults involving passengers on Bus Drivers was part of the record in the case, with 62 assaults within approximately a one-year period of time before the incident for which the Claimant was alleging a mental/mental injury, being presented as evidence to the Workers’ Compensation Judge.
The WCJ in McLaurin accepted the testimony of the SEPTA witnesses, finding the witnesses’ testimony to be credible and persuasive as to whether a Bus Driver being accosted by a man with a gun was an abnormal working condition for a SEPTA Bus Driver.
The WCJ concluded that the incident giving rise to the Claimant’s alleged mental/mental injury was not an abnormal working condition, since other SEPTA Employees in the Claimant’s same job classification, that of a Bus Driver, had been exposed to similar incidents, and should have expected to have anticipated being exposed to very similar events.
On Appeal, the Claimant argued that he had been subjected to an extraordinary event, with the Claimant seeking a finding that he had been exposed to abnormal working conditions.
SEPTA argued that the record in the case established that the Claimant’s bus route went through a very high crime area.
The Commonwealth Court noted that the workers’ compensation law applicable to mental/mental injury claims was extremely fact-sensitive, although the working conditions causing the alleged mental/mental injury must be considered to be abnormal, in the context of a Claimant’s specific employment, before a mental/mental injury can be determined to be compensable.
The Commonwealth Court ruled:
“McLaurin had the burden to prove by objective evidence that his injury was not a subjective reaction to normal work conditions. [citation omitted]. He offered no proof that the October 2006 incident represented something that a SEPTA Bus Driver could not anticipate. On the other hand, SEPTA offered evidence that such incidents did occur with enough regularity that handling of them had been built into the operators’ training program.” (emphasis supplied)
In reliance upon SEPTA’s evidence as to its training program and the frequent regularity with which its Bus Drivers were exposed to similar incidents, the Commonwealth Court found the Claimant’s alleged mental/mental injury to not be compensable, as the Claimant had not proven that he was subjected to abnormal working conditions.
II. Koshanowicz: Training, History and Employee Expectations = Key Factors for Normal Working Conditions:
Koshanowicz is another instructive case dealing with mental/mental injuries.
In Koshanowicz, the Claimant was a General Manager in a State Retail Liquor Store located in a Philadelphia suburb.
In 2008, the store was robbed by an armed masked man who pointed a gun at the back of the Claimant’s head.
The robber then stole money from the cash registers, and tied the Claimant and his Co-Worker to chairs with duct tape before fleeing the store.
There was no claim of physical injury in Koshanowicz.
Seeking workers’ compensation benefits for a mental/mental injury, the Claimant testified that he had never previously been the victim of a robbery, and that he had no prior psychiatric or psychological treatment.
On cross-examination, the Claimant admitted that the store was not in a “low risk” area, that it had a high volume of shoplifting, and had, on an almost daily basis, customers who the Claimant considered to be safety risks.
The Claimant further testified that he was aware of the procedures that his Employer had in place for dealing with emergencies, such as robberies, and that he had received training in those procedures.
In defense of the claim, the Employer presented detailed fact evidence regarding how it trained its Employees, particularly as to how it trained its Employees as to what to do in the case of emergencies, to include store robberies.
The WCJ granted the Claimant’s Claim Petition, finding that the Claimant had been subjected to abnormal working conditions. The WCJ found that there was a direct causal relationship between the work place violence that the Claimant had been subjected to, and the Claimant’s claim of a psychiatric mental/mental injury.
Appealing the WCJ’s finding of a compensable mental/mental injury, the Employer argued that it had presented uncontroverted evidence of statistics involving similar situations involving its Employees, with the Employer arguing that the armed robbery experience that the Claimant had been subjected to was normal for the Claimant’s employment, as a retail store Manager.
Reviewed by the Commonwealth Court, the Commonwealth Court held that the primary issue in the case was whether the working conditions (robbery) were foreseeable, and such that it could have been anticipated by the Claimant.
The Commonwealth Court, in overturning the WCJ’s finding of a compensable mental/mental injury, relied heavily on the fact that the Employer had trained its Employees on what to do in the event of a robbery, as well as relying upon the statistics presented by the Employer as to the frequency of similar incidents occurring in liquor stores.
Specifically, the Employer presented evidence that its liquor stores had been robbed about 15 times per year, since 2002.
Relying upon the training provided to the Claimant as to what to do in the event of a robbery, and the frequency of robberies in retail liquor stores, the Commonwealth Court overturned the holdings of the Appeal Board and the WCJ, finding that the Claimant had not proven the occurrence of a work-related mental/mental injury, as the Claimant had not proven that he had been subjected to abnormal working conditions. Pennsylvania Liquor Control Board v. WCAB (Kochanowicz), 29 A.3d 105 (Pa. Cmwlth., 2011).
III. Bush: Again, Employee Training = Key Factor
Bush is an unreported Opinion by the Commonwealth Court.
In Bush, the Claimant was a liquor store Clerk, who had been held up at gun point by two armed masked robbers in 2009.
Again, the Claimant, like in Kochanowicz, had a gun pointed at his head, although there was never any physical injury reported by the Claimant.
When the Claimant alleged that he had sustained work-related post-traumatic stress, the Employer denied the claim, with the Employer also contending that the Claimant had a pre-existing history of anxiety.
After the Claimant had been hired, the Claimant had been trained by the Pennsylvania Liquor Control Board with the training lasting three days.
The training covered armed robberies, as well as training the Employees to open their registers, when confronted with armed robbers.
Employees were instructed not to resist, and to turn over any available cash.
The Claimant testified that he did not recall viewing a training video called “Armed for Safety”.
The Claimant testified that he thought the robbery was “one of those things where you never think it’s going to happen to you.”
Like in Kochanowicz, the Employer presented fact testimony regarding his training of his Employees, including instruction on the possibility of an armed robbery, shoplifting, and other criminal activity that might occur in the store.
Very specific testimony was offered by the Employer as to the training that the Claimant was given before being assigned to work in a liquor store.
Although the WCJ found that the Claimant had proven that he had been exposed to abnormal working conditions causing the Claimant to sustain a mental/mental injury, the WCJ’s granting of the Claim Petition was reversed by the Appeal Board, as the Appeal Board cited to Kochanowicz as controlling its reversal of the WCJ.
Before the Commonwealth Court, the Court noted that mental/mental injury cases are very highly fact-sensitive, and that working conditions must always be considered in the context of specific employment, with there being no bright line test available for Appellate authorities to rely upon.
The Bush Court held that where there was specific training as to foreseeable working conditions, such as robberies in retail environments, that the working conditions would be foreseeable, negating the ability to prove an abnormal working condition as a predicate to being able to sustain a Claimant’s burden of proving a work-related mental/mental injury.
IV. Payes: The Missing Link Analysis = Physical Contact:
In Payes, the Pennsylvania Supreme Court was asked to determine whether the Claimant had satisfied his burden of proving abnormal working conditions, when a Pennsylvania State Police Officer alleged that he had developed post-traumatic stress disorder, after a mentally ill woman jumped in front of his Police vehicle, in an apparent suicide.
When the Police Officer, who did not know whether the mentally ill woman was alive or not, attempted to resuscitate her, he also had to direct traffic away from his vehicle.
When attempting to resuscitate the woman, the Claimant was exposed to blood coming from her mouth, and he was taken for medical care to determine whether her blood had any contaminants in it, with it later being determined that her blood had not been contaminated.
The State Police denied the claim, although it had accepted responsibility for providing medical care to the Claimant for the potential blood exposure issue.
The WCJ determined that the mental/mental injury claim was compensable, finding that the stimulus for the Claimant’s alleged mental/mental injury was not one that was normally encountered by State Troopers. The WCJ considered the event to have been extraordinary, and very unusual, when considered in its totality.
The Workers’ Compensation Appeal Board reversed the Judge’s finding, finding that the Claimant’s line of work, as a State Trooper, was “stressful and perilous”.
This ruling was then affirmed by the Commonwealth Court.
Appealed to the Pennsylvania Supreme Court, the Claimant argued that the Appeal Board and Commonwealth Court had ignored the Judge’s factual finding, with the Claimant arguing that the Appeal Board and Commonwealth Court had selectively highlighted convenient elements of the event, without considering the event within the totality of its circumstances.
Examining other mental/mental injury cases, the Supreme Court considered the events in Payes to be a “singular extraordinary event”, finding:
“Accordingly, we hold that the Commonwealth Court erred by not accepting the well supported facts found by the WCJ establishing the existence of an extraordinarily unusual and distressing single work-related event experienced by Appellant, resulting in his disabling mental condition, where such single and comprehensive work-related event constituted an abnormal working condition as a matter of law.”
V. Our Analysis:
The cases that we have discussed are difficult to reconcile in terms of the proofs required to establish the compensability of mental/mental injury claims.
However, a theme that floats to the surface, in mental/mental injury claims, is that if there is some semblance of physicality associated with the alleged injury, coupled with an “aggravating factor”, to what is otherwise considered to be a pure mental/mental injury claim, meaning that no physical injury is alleged, and that the diagnosis is that of an emotional or psychological injury, Pennsylvania Courts, dealing with these types of claims, have sometimes found that what might otherwise be considered to be a normal working condition for that particular job, line of work, or industry, is, in fact, abnormal, and that this is particularly true, where an Employee’s training has not addressed this type of unusual situation, that might otherwise have been foreseeable, with more comprehensive training having been given to the Employee, such that the Employer’s defense of a mental/mental injury claim becomes more secure and transparent when the Employee has been comprehensively trained by the Employer to expect that this incident, event, or working condition might occur, negating the compensability of the claim.
In Payes, the missing link was the “bloody kiss”, as the State Trooper attempted to resuscitate the deranged woman who threw herself in front of his Police car, with the “mouth-to-mouth” contact being the physical contact that triggered, among other things, the State Trooper’s reaction to the event, resulting in the State Trooper being overwhelmed by post-traumatic stress disorder, as the circumstances surrounding his alleged “injury” were deemed to have been extraordinary by the Pennsylvania Supreme Court, considering the entire event in its totality.
The concept of an “aggravating factor” may be a newfound hybrid between a mental/mental injury claim and a physical/mental claim under Pennsylvania Workers’ Compensation Law, underscoring the attention to detail required in litigating these cases, in order to establish foreseeability as a bar to an incident being characterized as a “singular extraordinary event”.
The Supreme Court’s Decision in Payes was previously discussed in our newsletter titled “Do You Feel Lucky? II”.
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Kevin L. Connors can be reached at: [email protected]
Jeffrey D. Snyder can be reached at: [email protected]
