Work Related Mental Injury & the Employee's Burden of Proof
An Employee may receive workers' compensation benefits in Pennsylvania for disability arising from a work-related mental injury. The Employee burden of proof to establish all of the elements of a compensible claim varies somewhat, depending upon the stimulus for the onset of disability.
"Mental-Mental". Where the stimulus for the work injury and disability is "mental" and there is no a physical act, then the Employee must establish that "abnormal work conditions" caused the mental injury. Example: Anxiety and/or Depression.
"Physical-Mental". When the stimulus for the work injury and disability is physical, the Employee must establish the physical stimuli resulted in the disability. It is not necessary to demonstrate that the physical injury was disabling. Example: Post Traumatic Stress Disorder.
"Mental-Physical". Mental or psychological stress that results in purely physical injury does not require a demonstration of abnormal work conditions. Example: Cardiac symptoms such as Angina.
Bush v. WCAB (Commonwealth of Pa., Liquor Control Board), No. 2311 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge McGinley on June 12, 2013, addressed the "mental-mental" burden of proof issue.
Factual and Procedural Background
[ The individual facts are important in this type of claim]
Employee was hired as a liquor store clerk in December 2007.
In March 2009 two masked robbers held up the store where Employee worked.
One told Employee to open the cash register. The other pointed a gun in front of him.
He pressed the panic button and called 911 after they left.
He did not sustain any physical injury.
He started to have a panic attack.
He began shaking and could not write a police report for about 30 minutes.
He went home. He had a feeling of being smothered. He awoke repeatedly and was nauseous.
He treated with the panel MD. He was advised to continue to take zoloft and was prescribed xanax. He was referred to a psychologist and psychiatrist. Panel MD report stated employee could not return to work due to anxiety and post-traumatic stress disorder.
Employer issued a Notice of Compensation Denial, asserting employee did not suffer a work-related injury.
Employee filed a claim petition alleging total disability.
His testimony reflected he suffered from social anxiety for years. He sought medical treatment after family deaths, and a car accident resulting in a fatality. He continued to take zoloft but had no panic attacks, anxiety or depression since mid-2005.
Employee testified and described symptoms of anger, panic attacks, flashbacks and depression.
Social aspects of his life were curtailed.
Employer evidence reflected that when employee was hired, he received training including robbery procedures. There were two videos and training discussions regarding robbery procedures. These policies were also discussed in the employee handbook. Employer witnesses included: his training manager; a trainer with 23 years employment; his manager with 21 years of employment. They described the training provided to employee regarding robbery.
Employee medical witness diagnosed PTSD as a result of the work-related robbery. He was unable to return-to-work. His prior condition did not play a role.
Employer medical witness diagnosed PTSD but stated employee could return-to-work, with limited public contact.
WCJ awarded total disability. He found the robbery was an abnormal working condition.
WCAB reversed, citing prior similar case precedents. "Robberies in liquor stores occurred on a frequent enough basis that [employer] incorporated information about what to do if one occurred into its training programs". Accordingly this incident was not an abnormal working condition.
Commonwealth Court agreed with the reversal of the award. Employee has the burden of proof to establish he was exposed to abnormal working conditions and that his psychological problems are not a subjective reaction to normal working conditions. [citing: Martin v. Ketchum (Pa. 1990).
"In the present controversy, the Board determined the WCJ erred when she determined the robbery was an abnormal working condition. The Board relied on McLaurin v. WCAB (SEPTA) 980 A.2d 186 (Pa. Cmwlth. 2009), which held that if the employer provided training to its employees on how to handle a specific working condition, that working condition was foreseeable and could have been anticipated." slip opinion page 13.
1. In this situation, the employer can "make a difference" in its work comp liability by providing and documenting the training provided to their employees.
2. The amount of detail in the summary of testimony leads me to conclude that this amount of documentation was persuasive. Present your best case! Present those witnesses.
3. These cases are highly fact sensitive. Yet whether the worker has been exposed to abnormal working conditions is a question of law, that is fully reviewable on appeal.