It Payes to Be Abnormal—Is The Law Really Changing for Mental/Mental Claims in PA Workers’ Comp?

By A. Judd Woytek, Esq.*

What is normal? What is abnormal? Why does it matter? For Pennsylvania workers’ compensation claimants, employers and insurance carriers, these questions have moved to the forefront of an area of the law that seemed to have been settled.

A claimant who was suffering a psychic injury as the result of something that happened in the workplace had three paths to an award of benefits. The first and second paths were easy.

The first path involved proving a physical/mental injury. The claimant had to prove a physical injury that then resulted in a psychic injury as well. For example, a claimant who developed depression following a work-related low back injury could be entitled to benefits for the work-related depression.

The second path required establishing a mental/physcial injury. The claimant had to show that a psychic injury at work resulted in physical symptoms. A common physical ailment that results from psychic insult in the workplace was irritable bowel syndrome or something of that nature.

The third path to an award of benefits was much harder to prove. In order to meet his or her burden of proof with regard to a purely psychic (or mental/mental) injury, the claimant needed to prove that what became known as an “abnormal working condition” was the cause of a psychic injury. There is no physical component to a mental/mental injury. The “injury” is a psychic injury that results from a psychic stimulus. The courts carved out the “abnormal working condition” requirement to distinguish a compensable psychic injury claim from a non-compensable claim where the claimant only had a subjective reaction to a normal working condition.

While the courts have stressed that there is no “bright-line test” for what constitutes an abnormal working condition, and that psychic injury cases are “highly fact sensitive,” case law developed which indicated that events that were “expected,” “anticipated” or “foreseeable” in certain professions were not considered an abnormal working condition. This made it very difficult for employees in certain “high risk” professions to prove mental/mental injuries and be awarded workers’ compensation benefits. Police officers, correctional officers and employees working in dangerous parts of cities were required to meet a very high burden of proof to show that they suffered a psychic injury due to an abnormal working condition.

Then came Payes v. W.C.A.B. (Commonwealth Pa. State Police), 79 A.3d 543 (Pa. 2013). In this very interesting case, a police officer was driving his patrol car on a highway at night when a woman dressed all in black suddenly ran out in front of his car. The woman was struck by the patrol car, flipped over the vehicle and landed on the highway. The claimant then attempted to revive the woman with mouth-to-mouth resuscitation while she was bleeding from the mouth. At the same time, he had to try to divert traffic around the accident scene. The woman was eventually pronounced dead at the scene. The officer filed a claim petition for workers’ compensation benefits alleging that he developed post-traumatic stress disorder (PTSD) as the result of the incident and that he was totally disabled. The Workers’ Compensation Judge awarded the claim, and the employer appealed. The Workers’ Compensation Appeal Board reversed the Judge’s decision and noted that the police officer was engaged in a “stressful and perilous profession” and that being involved in a fatal accident was not an “abnormal working condition” for a police officer. The Commonwealth Court affirmed and noted that it was “not beyond the realm of possibility for an officer to have to take someone’s life.”

The Pennsylvania Supreme Court saw things differently, reversed the lower court’s decision and awarded benefits to Officer Payes. In its decision, the court reiterated its prior holdings that indicated that psychic injury cases are highly fact sensitive and must be considered in the context of the specific employment involved. They noted that the claimant had to prove that he was subjected to conditions to which an employee in his position was not normally subjected. The court then gave great deference to the fact-finding function of the Workers’ Compensation Judge and held that, “Unless a reviewing tribunal had set aside this factual finding as arbitrary and capricious, it was bound by it when analyzing the legal issue of whether the working conditions were abnormal.” The court held that the record supported the Judge’s finding that, what transpired when the work incident occurred was not an event normally experienced or anticipated by employees in the claimant’s line of work. The Pennsylvania Supreme Court held that the claimant did not have a “subjective” reaction to a normal event that occurred while performing his job, but instead had a reaction to a highly unusual and singular event that led to his development of PTSD.

The legal community thought the Payes case was an aberration. A very dramatic and unusual fact scenario that warranted a finding of an abnormal working condition. While claimants’ lawyers praised the decision, counsel for employers viewed it as a one-time deviation from established legal principles due to the highly unusual set of facts involved. The Pennsylvania Supreme Court’s order in the case of Kochanowicz v. W.C.A.B. (Pa. Liquor Control Bd.), 85 A.3d 480 (Pa. 2014) changed that perception.

In Kochanowicz, a liquor store employee sought benefits for a mental/mental claim after being held up in a robbery. A masked man brandishing two guns tied up the claimant and a co-worker with duct tape and held one of the guns to the claimant’s head. The claimant filed a claim petition, alleging total disability due to PTSD. The Workers’ Compensation Judge awarded benefits and found that armed robbery was an abnormal working condition, despite evidence presented by the employer of robberies at its other retail locations and evidence that the employer provided training to the claimant and other employees on what to do in the event of a robbery.

The Workers’ Compensation Appeal Board affirmed the Judge’s decision, but the Commonwealth Court reversed and noted that the claimant “could have anticipated being robbed at gunpoint.” They noted the frequency of the occurrence of such robberies in that specific industry based upon evidence presented by the employer. The Commonwealth Court, therefore, found that the claimant had suffered a subjective reaction to a normal working condition and was not entitled to benefits.

In a one-paragraph opinion, the Pennsylvania Supreme Court vacated the Commonwealth Court’s decision and remanded the case to the Commonwealth Court for reconsideration in light of its decision in Payes. In a parenthetical, the Supreme Court noted that the holding in Payes indicated that psychic injury cases are highly fact sensitive and that a reviewing court must give deference to the factfinding functions of the Workers’ Compensation Judge and limit its review to determining whether the Judge’s findings of fact are supported by the evidence.

So, are these two cases a sign of a change in the law relating to mental/mental claims? Are the courts trying to make it easier for a claimant to prove an abnormal working condition by giving greater deference to the factfinding functions of the Judge? These decisions certainly seem to indicate that the Judge’s determination regarding whether or not the claimant has established an abnormal working condition should be given great deference and should not be overturned on appeal. Employers will need to be even more vigilant in presenting evidence to establish what is and what is not normal in the workplace environment in every particular situation. Reliance on the argument that the event causing the psychic injury to the claimant was “expected,” “anticipated” or “foreseeable” may no longer be enough for the employer to defeat a mental/mental claim. The specific facts of each incident will need to be dissected and evidence presented to establish that the claimant had a subjective reaction to something that was normal in the workplace environment and that there was no abnormal working condition present.

We will have to wait to see what the Commonwealth Court does with the remand in the Kochanowicz case. Counsel involved with the case has confirmed that Mr. Kochanowicz’s benefits were reinstated and that the Commonwealth Court has accepted briefs from the parties. The matter is awaiting a decision.

*Judd is a shareholder in our Bethlehem, Pennsylvania office. He can be reached at 484.895.2307 or ajwoytek@mdwcg.com.

Defense Digest, Vol. 20, No. 3, September 2014

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.