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By Kevin L. Connors, Esquire
Well, the wheel turns again.
Mental/mental injuries have always been, well, pretty mental under Pennsylvania Workers’ Compensation Law.
Duh, mental/mental claims are always difficult to prove and defend, in the absence of an objective physical injury.
This conundrum formed the spine for the Pennsylvania Supreme Court’s landmark Decision inMartin v. Katchum, Inc., 568 A.2d 159 (Pa. 1990).
In Martin, the Pennsylvania Supreme Court adopted the analysis below, for determining whether a mental injury was compensable, under the Pennsylvania Workers’ Compensation Act:
· The Claimant must produce objective evidence which is corroborative of his/her subjective description of the working conditions alleged to have caused the psychiatric injury;
· Because psychiatric injuries are by nature subjective, we believe that if a Claimant has met his burden of proving the existence of a psychiatric injury, he cannot rely solely upon his own account of the working environment to sustain his burden of proving that the injury was not caused by a subjective reaction to normal working conditions; and,
· A Claimant’s burden of proof to recover benefits for a psychiatric injury is, therefore, twofold; “he must prove by objective evidence that he has suffered a psychiatric injury and he must prove that such an injury is other than a subjective reaction to normal working conditions.”
In PA Liquor Control Board v. WCAB (Kochanowicz), decided by the Commonwealth Court on December 30, 2014, the Court was ordered, by the Pennsylvania Supreme Court in a Decision rendered on February 12, 2014, to determine whether the Workers’ Compensation Judge’s Decision, granting the Claim Petition filed by the Claimant, Gregory Kochanowicz, wherein the Claimant was seeking workers’ compensation benefits for a work-related injury, alleged to have occurred as a result of the Claimant, a General Manager of a Pennsylvania Retail Liquor Store, subsequent to which the Claimant developed post-traumatic stress disorder, adjustment disorder with mixed anxiety, and depression, was entitled to workers’ compensation benefits, with the Workers’ Compensation Judge having found that the Claimant had proven a mental/mental injury under the Act.
The WCJ’s Decision was then appealed to the Appeal Board, which concluded that the Claimant had not sustained his burden of proving a work-related injury, resulting in the Commonwealth Court, in its 2011 Decision in this case, holding that the Claimant should have anticipated the possibility of being robbed at gunpoint, and, therefore, that the armed robbery resulting in the Claimant’s alleged mental/mental injuries “was a normal condition of his retail liquor store employment.”
The Commonwealth Court’s ruling was then appealed to the Supreme Court, which granted the Claimant’s Appeal, vacating the Commonwealth Court’s denial of workers’ compensation benefits, and remanding the case back to the Commonwealth Court, in reliance upon the Supreme Court’s Decision in Payes v. WCAB, 79 A.3d 543 (Pa. 2013), in which the Supreme Court had held that mental/mental injury cases are highly fact-sensitive, requiring the Court, at whatever level, to give deference to the fact-finding functions of the Workers’ Compensation Judge, thereby limiting the Appellate review to determining whether the Judge’s findings of fact were supported by substantial competent evidence.
As for the underlying claim, the Claimant had been working an evening shift, and was preparing to close the store in April of 2008, when a masked man approached him with a drawn gun. The Claimant was asked to remove all money from the store safe, with the armed robber holding a gun to the back of the Claimant’s head.
The Claimant was then tied to a chair, along with a co-worker, with the Claimant getting agitated and anxious when the gunman put the gun to the back of the Claimant’s head.
After the gunman left, the Claimant freed himself, called the Police, and his Supervisor.
The Claimant then asked Human Resources if he could take time off of work, because of the robbery.
The Claimant had never been robbed during his thirty years of employment, and the Employer referred the Claimant to a panel social worker.
The Claimant then saw his own personal physician the following day, and then began to treat with a psychologist, to whom the Claimant had been referred by his counsel.
Applying the legal precedent set by the Pennsylvania Supreme Court in Payes, the Commonwealth Court held that a Claimant seeking workers’ compensation benefits carries the initial burden of proving that he sustained a mental/mental injury within the course and scope of his employment, and that the injury results in a loss of earning power, the standard for proving disability under the Pennsylvania Workers’ Compensation Act.
Once the mental injury is proven by the Claimant, the Claimant carries a secondary burden of proof, requiring that the injury is “other than a subjective reaction to normal working conditions.”
In Kochanowicz, the Employer did not contest that the Claimant had sustained a mental injury in the course and scope of his employment, as the Employer defended the claim on grounds that the Claimant’s injury was merely a “subjective reaction to normal working conditions.”
To prove the subjective reaction defense to normal working conditions, the Employer presented evidence as to the number of robberies at State liquor stores, to include armed robberies, that the Claimant had attended Employer-sponsored training on workplace violence, that the Employer provided pamphlets and educational tools to its Employees, in the handling of a workplace robbery, and workplace violence.
However, although the Workers’ Compensation Judge concluded that the armed robbery resulting in the Claimant’s mental/mental injury was an “abnormal working condition”, and that although workplace violence does occur, that fact alone does not “place workplace violence into the realm of a normal working condition”, finding as well that “robbery by gunpoint at the back of the head is neither a normal societal occurrence, nor a normal working condition.”
Finding that the WCJ’s findings of fact were supported by substantial competent evidence, the Commonwealth Court deferred to the Supreme Court’sPayes’ dictate, that the Claimant had been subjected to a “singular, extraordinary event during a work shift” causing the Claimant’s post-traumatic stress disorder, and that the Claimant had proven, in deference to the workplace violence training and statistics evidence presented by the Employer, that the armed robbery that the Claimant was a victim of, was “not a normal working condition.”
This resulted in the Claimant being awarded workers’ compensation benefits for a mental/mental injury, as the Workers’ Compensation Judge had granted the Claimant’s Claim Petition, and the Appeal Board had affirmed that award of workers’ compensation benefits to the Claimant.
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