In Part 1 of this blog post, we explored the three legal classifications of potentially work related mental injury claims addressed under the Pennsylvania Workers’ Compensation Act: physical/mental, mental/physical, and mental/mental. In this part, we will take a closer look at the rapidly developing area of mental/mental cases. We will also provide practical advice on how you can protect your company from mental stress claims in Part 3 of this post.
As you will recall from Part 1, to succeed in establishing a Workers’ Compensation claim for a mental/mental injury (mental stimulus/mental injury), the employee must demonstrate that the injury resulted from an abnormal working condition. Historically, this has been a difficult burden for employees to meet. Consider, for example, the convenience store hold-up cases, where a convenience store clerk is held-up at gun point, is not physically touched or harmed, but suffers from anxiety, panic attacks and PTSD thereafter. In such cases, the employee cannot meet his/her burden of proving an abnormal working condition because, hold-ups are common in the industry, clerks are told as such, and clerks are trained regarding what to expect and how to handle a hold-up.
Recently, however, the courts have begun to ease the burden of proving abnormal working conditions.
In Payes v. WCAB (2013), the Pennsylvania Supreme Court notably eased the burden of proof in mental/mental cases, by holding that mental injury cases are highly fact-sensitive and that the Workers’ Compensation Judge (“WCJ”), as fact finder, must be given broad latitude in determining whether or not “abnormal working conditions” exist, given the specific facts of each individual case. In Payes, a State Trooper sustained PTSD after striking and killing a pedestrian who ran in front of his patrol car while he was traveling to the barracks. The WCJ awarded benefits, but the Appeal Board ruled in favor of the employer, finding that there was no abnormal working condition. The Commonwealth Court affirmed, holding that a police officer can be expected to witness horrible tragedy and that “it is not beyond the realm of possibility for an officer to have to take someone’s life.” Further, the Court found it was normal for a police officer to administer first aid, including CPR, to a crash victim and that not all first aid attempts are successful.
The Supreme Court reversed, finding that the trooper was entitled to an award of benefits caused by “a singular extraordinary event occurring during [the claimant’s] work shift.” An abnormal working condition was found to exist, even though state troopers are routinely exposed to vehicle accidents, mayhem, bodily injury, death, murder and violent acts, in the normal course of their duties. In this case, the death was found to be a “suicide by cop” situation, in which the responding officer was also placed in the zone of danger due to oncoming traffic, while attempting to revive the decedent, prior to the arrival of emergency personnel. The Supreme Court held that a State Trooper is not normally exposed to a mentally disturbed individual running in front of his vehicle, thus requiring the Trooper to perform CPR on such individual on a busy interstate highway. The lesson from Payes is that deference will be given to the fact finder, the WCJ, in these cases, to decide whether or not an abnormal working condition exists.
Recently, the Commonwealth Court followed the Supreme Court’s lead in Payes, by vacating and remanding a mental/mental case to the WCJ, for further consideration as to whether an armed robbery of the general manager of a check cashing business involved an “abnormal working condition.” The manager and her husband were abducted at gunpoint while opening the store. The husband was handcuffed and forced into the backseat of the gunman’s car, while the Claimant was led into the office at gunpoint, shoved to the ground and hog-tied. A panic button she had been given by her employer was inoperable, although she was eventually able to free herself and call 911. Following the assault, Claimant had regular nightmares, panic attacks, bouts of crying, and difficulty getting dressed or bathed. She was diagnosed with PTSD as a direct result of the armed robbery. Noting that Claimant had been trained on how to respond in the event of a robbery and that a robbery was foreseeable and more than just a remote possibility, the WCJ nevertheless found no abnormal working condition. On remand, however, the Court held that the Judge is obligated to consider the facts surrounding this specific robbery, in deciding whether abnormal working conditions were present. Murphy v. WCAB (Pa. Cmwlth. Ct. 2015).
The trend toward compensability of stress claims is likely to continue in Pennsylvania, based on these developments. Accordingly, employers would be wise to consider taking steps to reduce potential exposure to such claims. A thorough investigation of the circumstances surrounding the filing of a claim for workers’ compensation benefits is perhaps the most important initial step to take. Why? Because there are so many causes for psychological or psychiatric conditions. We will explore this more in Part 3, tomorrow!
