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A BLOODIER KISS
By Kevin L. Connors, Esquire
To all familiar with our firm’s prior article impolitely titled “A Bloody Kiss: The “Paye”-Off = The Missing Link”, addressing the Pennsylvania Supreme Court’s Decision inPayes v. WCAB, 79 A.3d 543 (Pa.2013), under which the Pennsylvania Supreme Court had held that mental injuries are highly fact-sensitive, requiring a reviewing Court to give deference to the fact-finding functions of the Workers’ Compensation Judge, with reviewing Appellate Courts being limited to determining whether the WCJ’s findings of fact are supported by substantial competent evidence, the Supreme Court has now directed the Commonwealth Court to revisit its Decision inKochanowicz v. WCAB (Pennsylvania Liquor Control Board), a Decision circulated by the Commonwealth Court on September 20, 2011, and the subject of a yet-earlier article that we had posted for all receiving this post.
In Kochanowicz, a Workers’ Compensation Judge had awarded workers’ compensation benefits to the Manager of a Pennsylvania Liquor Control Board Wine & Spirits Store, after the Manager was held-up at gunpoint, with the critical issue in the case being whether or not the Store Manager was able to prove that the robbery was an abnormal working condition that would have resulted in the Store Manager being entitled to receive workers’ compensation benefits for a mental/mental injury, in the absence of any physical injury having been sustained.
In reliance upon the Pennsylvania Supreme Court’s landmark Decision in Martin v. Kecthum, 568 A.2d 159 (Pa.1990), theKochanowicz Commonwealth Court held that a “psychic injury” case, involving an injury without any physical trauma or symptomatology, requires the Claimant seeking workers’ compensation benefits to prove that the injured Employee has been “exposed to abnormal working conditions and that his psychological injuries are not a subjective reaction to normal working conditions.”
Moreover, under Martin, “psychic injury” cases, involving the mental/mental claim, required the Claimant seeking workers’ compensation benefits to prove that the alleged working conditions causing injury had to be analyzed and considered in the context of the injured Employee’s specific employment, requiring a highly fact-sensitive analysis of not only the job being performed, but also the working conditions alleged to be abnormal, prior to the occurrence of the alleged mental/mental injury.
In Kochanowicz, the Commonwealth Court had also focused on an analysis as to whether the “working conditions” allegedly causing injury, alleged by the Claimant inKochanowicz to be abnormal, with the specific condition being the fact that the Claimant was held-up at gunpoint during a store robbery, were foreseeable or anticipated before the event in question by the Employer, as well as whether the Employee, the Store Manager, had been trained by the Employer that those types of situations, robberies at gunpoint, were potentially normal, in the course of performing work within their work environment, such that the potential for being exposed to violent crimes was a normal working condition.
With the Pennsylvania Supreme Court determining, in Payes, that psychic injury cases are highly fact-sensitive, it is has now directed the Commonwealth Court inKochanowicz, to reconsider the ruling that it had issued in 2011, effectively requiring the Commonwealth Court to give deference to the fact-finding functions of the Workers’ Compensation Judge, and to limit its review of the Workers’ Compensation Judge’s findings of fact to whether those findings are supported by substantial competent evidence.
In short, the Pennsylvania Supreme Court’s per curiam Order entered inKochanowicz on February 12, 2014, effectively reverses the earlier ruling by the Commonwealth Court on September 20, 2011, potentially eviscerating a long line of workers’ compensation decisions that have held, in similar situations, that the foreseeability of a robbery, as contemplated by the Pennsylvania Liquor Control Board inKochanowicz, negates the robbery from being considered to be an “abnormal working condition”, based on the frequency with which robberies occur in liquor stores, as well as by the fact that the Liquor Control Board contemplated that the robbery was not an unforeseen condition, and that it had, therefore, given specific training to its Employees, to include the Store Manager in question, as to what to do in those type of situations, with that foreseeability factor being negated by the Supreme Court’sper curiam Order in Kochanowicz.
Obviously missing from the Supreme Court’s February 12, 2014 per curiam Order is any reference to the issue of physicality, which seems to have been an underpinning in the Supreme Court’s ruling inPayes, as a careful reading of that Decision indicates that the Court was also relying upon the fact that the Claimant, a Pennsylvania State Trooper, had given mount-to-mouth resuscitation to a seemingly insane woman who had attempted suicide by police car, throwing herself in front of the State Trooper’s patrol car, with the State Trooper then attempting to resuscitate the bezerbo woman, and unsuccessfully so, although the State Trooper was exposed to the bezerbo woman’s blood, in the course of administering mouth-to-mouth resuscitation with there being, therefore, physical contact between the State Trooper and the bezerbo woman seeking relief from this tertiary existence, with no such physicality existing inKochanowicz, as there is no reference to any physical contact between the Store Manager, and the robber, during the incident alleged to have caused the mental/mental injury claim.
Although the Commonwealth Court will still be required, under the Supreme Court’sper curiam Order in Kochanowicz, to review the record to make sure that the Worker’s Compensation Judge’s findings of fact, finding that the Claimant proved the occurrence of a work-related mental/mental injury, sustained while the Claimant was subjected to “abnormal working conditions”, are supported by substantial competent evidence, it is predicted that the Commonwealth Court will now be affirming the rulings of both the Workers’ Compensation Appeal Board and the Workers’ Compensation Judge, finding that the Claimant did sustain his burden of proving the occurrence of an injury as a result of “abnormal working conditions”, since the principle issue that the Commonwealth Court had relied upon in reversing the prior rulings by both the Appeal Board and the Workers’ Compensation Judge, were the factors of foreseeability, as well as the fact that the Store Manager had been trained to not only expect such an occurrence, but also how to deal with such an occurrence, when it occurred.
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