An Employee claim for disability from a "mental-mental" psychic injury must establish the injury is a result of abnormal work conditions. For work conditions to be considered abnormal, they must be considered in the context of one's specific employment.
At times, appellate courts have struggled with this issue: What is "abnormal" for a job position which entails, stressful, difficult situations, such as encountered in employment as a police officer or other first responders?
Payes v. WCAB (Commonwealth, PA State Police), No. MAP 2011, an opinion of the Supreme Court of Pennsylvania, authored by Mr. Justice McCaffery on October 30, 2013 addressed this issue.
Factual and Procedural Background
Employee was a PA State Trooper for 12 years.
One evening a woman, dressed in black, ran in front of his patrol car. The car struck her. He administered mouth-to-mouth resuscitation, but she could not be revived. It was later discovered she was mentally disturbed and was seen walking near the highway, prior to this incident.
He was off work for about 5 weeks and then returned to office work, not his normal patrol duties. After 4 days he had recurring feelings of anxiousness and stress. He believed he could not continue to perform his duties as a State Trooper.
Employee filed a claim petition for total disability as a result of Post-Traumatic Stress Disorder (PTSD) from this incident. Employee testified. His Commander testified regarding police training, including stress management, automobile accident response and rendering first aid to accident victims. He described another incident where an individual was struck and killed while dashing in front of an officer's vehicle. Two Troopers testified regarding Employee's return-to-work attempt.
Employee medical experts diagnosed disability as a result of PTSD from this work incident.
Employer medical expert opined employee recovered from the PTSD condition.
WCJ Decision Awarded Benefits
WCJ assigned credibility to Employee testimony and to that of his medical experts.
WCJ found this incident was not a circumstance one would be exposed to in the normal course of performance of one's work duties.
Although state troopers may expect to encounter or be involved in violent situations; such as death, murder, horrible accidents, use of deadly force; this particular incident is not one normally encountered or expected of state troopers.
Employee's mental injury and disability was caused by this abnormal work condition.
WCAB and Commonwealth Court disagreed with the WCJ award.
Commonwealth Court [5 A.3d 855, Pa. Cmwlth. 2010] reasoned that employee's injury did not result from abnormal work conditions.
The events that occurred may have been unusual, but they were not so much more stressful and abnormal than the already highly stressful nature of employee's employment. He was trained to respond to emergency situations and accidents, he was trained to render first aid, it was not extraordinary for him to respond and have a person suffer fatal injuries.
"[Employee], who works"in the line of employment" of a police officer, can be expected to be witness to horrible tragedy... These events will not be deemed "extraordinary" or "abnormal ...".
But for the one "unusual" fact, that Employee was "the one" who struck and killed this individual, there would be no question that a mental-mental injury would not be compensable under these circumstances.
Supreme Court Majority Opinion
The Majority states that the question of whether a claimant has been exposed to abnormal working conditions is a mixed question of law and fact. "Appellate review of this question is a two-step process of reviewing the factual findings and then the legal conclusion.". Slip opinion page 9 and page 10 citing RAG Cyprus Emerald Resources, L.P. (Pa. 2007).
[Writing in dissent, Mr. Justice Eakin correctly finds this to be a settled matter, the question of whether factual findings establish an abnormal working condition is a question of law. citing Martin v. Ketchum, 568 A.2d 159 (Pa. 1990). Mr. Chief Justice Castille [separately writing a concurring and dissenting opinion] agrees with this dissent argument regarding the standard of review.
The gist and relevance of the McCaffery opinion "mixed question" discussion appears to be the "deference" to the WCJ fact finding.
[If you lose the credibility arguments before the WCJ... you will always lose the case! mds].
This sophist argument is taken to its logical conclusions in this case.
The WCJ drafted finding #13, that State Troopers are not, in the normal course of their duties, exposed to the circumstances that occurred in this case...
"... this factual finding is based upon undisputed evidence of a singular extraordinary event occurring during [Employee's] work shift, was founded on substantial evidence of record." slip opinion page 16.
In my opinion, the short-coming of this analysis is that a "unique" set of circumstances must be "abnormal, precisely because it is a unique set of facts, not because those facts culminate in an abnormal work condition.
Unique is not the equivalent of abnormal.
1. This decision, with its faulty analysis should have a limited impact, as mental-mental injury claims are not very prevalent.
Query: will Claimant Counsel be more likely to file mental-mental claims if they know that they can prevail on appeal, if they prevail before a sympathetic WCJ?
2. The defense handling of the mental-mental case remains the same. One must thoroughly explore the claimant's past history. One must document the work duties of the claimant, including the "regular" duties, in additional to the less frequent occurrences in the work place.
NOTE: my law partner Jim Mazzotta handled the appeal in this case, after the WCJ litigation.
I did not participate in this case.