Friday, January 30, 2015

Pennsylvania Standard for Mental Injury Awards

The Pennsylvania Work Comp Standard for Mental Injury. 
Since 1972, the amended definition of "injury" in  Pennsylvania Workers' Compensation Act has allowed an award for "mental" injury.

The difficulty arises in assessing and distinguishing  an alleged mental injury as a result of one's subjective reaction to normal work conditions [which is not a compensable work injury] from the circumstances which reflect mental injury as a result of abnormal working conditions.

Appellate decisions required the employee to establish by objective evidence that he/she has suffered a mental injury and that injury is other than a subjective reaction to normal work conditions.
This proved to be a difficult burden, in many cases.

In a landmark decision, the Pennsylvania Supreme Court reinstated the WCJ award of total disability benefits to a PA State Trooper, where they concluded the events described were not "normal" for a state trooper, but rather were " extraordinary and unusual" ... so as to meet the abnormal working condition standard.
See: Payes v. WCAB (Commonwealth/ PA State Police) 793 A.2d 543 (Pa. 2013). The State Trooper alleged PTSD after he struck and killed a (mentally disturbed) pedestrian who had run in front of his patrol car.

In December of 2014, the Commonwealth Court of Pennsylvania reviewed two different Mental Injury Appeals.
One decision REVERSED an award of total disability.
One decision AFFIRMED an award of total disability.

Question: Is there ONE standard for the assessment of mental injury?

Answer: Yes.
(I'm just not sure what is "abnormal"!)

Claim Denied.
In the reversal and denial of a claim for temporary total disability, the Commonwealth Court reviewed the facts presented for a disability claim due to atypical depression, This condition was alleged as a result of specific work episodes alleged as abnormal working conditions.
Frog Switch & Manufacturing Company v WCAB (Johnson), No. 149 C.D. 2014, a panel decision authored by Judge Covey on December 4, 2014.

Employee worked as a "rover" for a steel fabrication company and her duties included crane operation. She was one of two females and the only African-American, among 200 employees.
She alleged temporary disability from depression symptoms, as a result of her reaction to specific work incidents.

Her testimony reflected: (1) an incident when a co-worker told her that others told him to not work underneath her when she was operating a crane; (2) an employee said women should not work there and (3) she was removed from crane assignment as a co-worker refused to work underneath her.

There was an incident when a co-worker described - in her presence - that his wife was not gonna treat him like a (N word) on his day off.

There was an incident when she observed a noose hanging in the office shared by two supervisors.

On appellate review of the WCJ award of benefits, the court noted that the evidence presented did not support the findings of the WCJ.

The WCJ found the employee cried uncontrollably after a meeting with her supervisors regarding the noose incident.  Employee testimony reflected she cried after the meeting regarding the co-worker refusal to work underneath her, when operating the crane.

The 'noose incident" was described in supervisor testimony to be "a joke" among the two supervisors. The origin was that one was having a bad day and said if one more thing goes wrong," he was going to hang himself". His office-mate hung the noose, to break the tension.

Employee medical evidence was a four sentence letter from her psychologist. His notes did not reference the "N word" or "noose" incident He state her atypical depression was the result of "her stressful and overwhelming work conditions". The court concluded this letter was not substantial evidence in support of the WCJ conclusion. Employer medical evidence from Robert Charles Cohn, M.D. was rejected. Dr. Cohn concluded there work incidents did not contribute to her depression.

The Court concluded that the medical evidence presented did not prove Employee's mental injury was more than a subjective reaction to normal working conditions. Dissinger's reference to "stressful and overwhelming work conditions" was not substantial evidence that abnormal work conditions exist or that Employee's medical condition resulted from those working conditions.

Claim Affirmed.
In this case the WCJ awarded benefits, the Appeal Board affirmed and the Commonwealth Court reversed the award. On Employee appeal to the Supreme Court the decision was vacated and remanded back to the Commonwealth Court, in light of the Payes decision.
On remand, the Commonwealth Court affirmed the award [which was a reversal of its prior determination]. See: PA Liquor Control board v. WCAB (Kochanowicz), No 760 C.D. 2010, an en banc decision authored by Judge Cohn-Jubelierer on December 30, 2014.

This claim involved the manager of a retail liquor store. During an armed robbery, a gun was held to his head and he was bound to a chair. His treating psychologist, Brian S. Raditz, Ed.D., diagnosed PTSD and adjustment disorder with mixed anxiety and depressed mood.
Employer medical expert examination resulted in a similar diagnosis.

The WCJ found as a fact and concluded as a matter of law that the robbery at gunpoint was an abnormal working condition and the employee mental injury was a result of this abnormal condition.

Employee had training in regards to workplace violence, including training related to robberies and theft. There were 99 robberies in the area of this store since 2002, including a recent nearby armed robbery. This evidence was the basis for the initial Commonwealth Court reversal of the WCJ award, as they concluded that employee could have anticipated an armed robbery, therefore it was a normal condition of his retail liquor store employment.

On remand and in consideration of the Payes decision, the Commonwealth Court reviewed the history and standard for "mental injury".

In Payes the WCJ found that the state trooper received training and was exposed to vehicle accidents, bodily injuries, death, murder and violent acts, in the course of their work duties.
The WCJ found a state trooper was not normally exposed to a mentally disturbed individual running in front of his vehicle, for no apparent reason. This was an "extraordinary and unusual event".

The Supreme Court held that the WCJ finding that the employee's mental injury arose from a singular extraordinary event during his work shift was founded on substantial evidence of record. This factual finding supported the WCJ legal conclusion that the mental injury was caused by an abnormal working condition.

Practice Pointers:

1. These decisions highlight the importance of establishing precise facts via competent evidence. 
There must be sufficient evidence in the record to support a finding of fact and legal conclusion by the WCJ.

It is significant to note, that in these appellate decisions, the focus of the Supreme Court is ... that "the more fact intensive the inquiry, the more deference a reviewing court should give to the WCJ findings". 

2. The difficulty in assessment of mental injury claims is the Court's reasoning that, despite the Employer training provided and past experience with similar events, the employee may still experience "a singular extraordinary event" which causes an injury and which constitutes an abnormal working condition. 

IMO, this approaches a "subjective" standard, that is, a standard where the determination of what is abnormal/normal varies for a particular individual.

The difficulty ... we do not know which "event" will meet this  criteria. 
For example, a state trooper once struck a pedestrian ... that past experience did not make the subsequent incident a "normal" working condition.

3. "Abnormal working conditions need not be "unique" working conditions". 
Payes 79 A.3d at 556. 

... if that is so ... I'm having trouble with my conception of "abnormal". 
It seems to be a question of semantics. 

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