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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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As previously reported here, the Alabama Legislature passed HB-107 last year, increasing the maximum burial expenses an employer may be liable for from $3,000 to $6,500. Governor Bentley recently signed HB-107 into law. As a result, employers are required to pay up to a maximum of $6,500 in burial expenses associated with the death of any employee which results from an accident occurring in and arising out of the employment.
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ABOUT THE AUTHOR
This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.
Joe Wilkerson worked for Boomerang Tube, LLC first as a general laborer and then as a mill operator. He injured his left hand on December 13, 2010 while operating the mill. He returned to work on restricted duty on December 17, 2010. On that evening at work, he reinjured his hand requiring another visit to the emergency room for stitches and antibiotics. He returned to work on December 20, 2010. There was a dispute whether he returned on light duty or full duty initially, but he did eventually return to full duty.
In April 2011 Wilkerson popped a ligament in his right hand and was placed on light duty. He was scheduled for hand surgery on April 27, 2011. In the meantime, he was offered light duty with instructions not to use his injured hand. There was a good deal of dispute regarding the events of April 21, 2011, which is the date Wilkerson was terminated. Wilkerson claimed that his supervisor was trying to make him do activities that were unsafe for him with one hand and Wilkerson allegedly kept asking if he could work in the store room. He said his supervisor refused to allow this.
Boomerang disputed this version and said that even before the shift started, the company planned to have Wilkerson clean offices. The supervisor claimed that he told Wilkerson to go get the cleaning supplies but fifteen minutes later Wilkerson had done nothing. Wilkerson asked his supervisor if he could work in the storeroom. The supervisor said that Wilkerson did not get to choose the type of light duty he would have to perform. Wilkerson said he could not use a mop or a broom, so his supervisor told him to get some Simple Green and a box of rags to wipe down all the restroom and breakroom fixtures. According to the supervisor, he told Wilkerson he was being insubordinate, to which Wilkerson replied that he would leave and go home. Wilkerson refused to do any wiping down work with one hand. The supervisor called his superior, who then gave approval to fire Wilkerson for insubordination.
Wilkerson sued and alleged that Boomerang discriminated against him based on his disability. He further contended that he could have performed the essential functions of his mill operator job with reasonable accommodations. He suggested the following accommodations: 1) receiving assistance from his supervisor; 2) being assigned a trainee; 3) job restructuring or being permitted to wipe down walls and fixtures; 4) receiving a transfer to a vacant position in the storeroom; or 5) being allowed a short leave of absence.
The Court held that plaintiff failed to show that any of these accommodations was reasonable. First, it held that it is unreasonable to require an employer to assign an existing employee to perform essential functions or to hire new employees for this purpose. Second, it held that the company did not have to relieve Wilkerson of the essential functions of his mill operator job. The purpose of reasonable accommodation is to allow the employee to perform his or her job. Third, the Court said that there is no requirement that the company create a new job in the storeroom for Wilkerson or transfer him to a new job since he never proved that such a job was available and that he was qualified for that job. The Court also held that a request for a short leave of absence is not reasonable because it would not help Wilkerson perform the essential job functions. (This aspect of the Court’s ruling is contrary to New Jersey law).
Since Wilkerson could not show that he could perform his job with any reasonable accommodation, the Court dismissed his law suit. This case can be found atWilkerson v. Boomerang Tube, LLC, 2014U.S. Dist. LEXIS 146695 (E.D. Texas October 15, 2014).
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
Dr. Marshall was ordered by DWC not to accept new patients nor participate in the comp system as a health care provider. DWC issued a violation order on the basis that he administered improper, unreasonable or medically unnecessary treatment by treating an injured employee for a diagnosis not supported by the medical record.
. . . was fined $1,000 and ordered to complete medical training because according to DWC he failed to provide acceptable health care to an injured employee by improperly utilizing diagnostic tests not supported by the medical record or evidence- based criteria. This is a familiar scenario.
Dallas Medical Center apparently ignored a refund request filed by a carrier, and ended up on December 2, 2014 with an order to pay a $15,000 fine. It is easy to forget that if a carrier makes a refund request against a provider and the provider fails to appeal the request to the carrier, or appeals a refund request and the carrier denies the appeal, the requested refund must be paid. The provider’s only remedy after paying the refund is to take the refund request to dispute resolution for a final determination by the agency– it cannot refuse to pay without risking the ire of the DWC (and a hefty fine).
The Texas Board of Chiropractic Examiners took Dr. VanderWerff to a contested case hearing after a complaint was filed with the Board accusing him of providing excessive and unnecessary treatments to a patient. The Board issued an order in the case determining that he had violated the Chiropractic Act by engaging in grossly unprofessional conduct and assessed a fine against him. He couldn’t appeal the Board’s order directly because he missed his deadline to do so. He filed suit for declaratory and injunctive relieve against the Board instead. The Board then filed a plea to dismiss his suit for lack of jurisdiction. The trial court granted the plea and dismissed the lawsuit. The Austin Court of Appeals affirmed the trial court, stating that the Board was acting within its statutory authority in issuing its order, and that the lawsuit appeared to be an attempt to create a way to get around his failure to timely file a direct appeal of the agency’s order. The bottom line is that the Board’s order and its finding of grossly unprofessional conduct against Dr. VanderWerff is final. Dr. Eric A. VanderWerff, D.C. v. Texas Board of Chiropractic Examiners,WL 7466814 (Tex. App.–Austin)
DWC is reminding all employers without statutory workers’ compensation coverage that there are reporting requirements that apply to them. They must report every year that they elect to opt out of the regulatory system. They also must report work-related fatalities, occupational diseases and on-the-job injuries.
West Star Transportation, Inc. faces a $5.3 million dollar liability judgment. The company did not carry workers’ compensation insurance at the time of the near-fatal fall suffered by one of its workers. This was a case in which the worker sued the company for negligence– a suit which would have been barred by the exclusive remedy provisions of the Labor Code had there been comp coverage. The 7th District Court of Appeals affirmed the judgment both as to the finding of negligence and as to the amount of the verdict. The appeals court found that the company created an unusually precarious work environment and an unreasonable risk of harm to its employees. The Amarillo Court of Appeals issued its opinion in the case last Friday.West Star Transportation, Inc. v. Charles Robison, et al, No. O7-13-00109-CV (7th Dist.).
If you haven’t been able to get through using the numbers you are used to, it is because the field office phone system has been revamped. You can get an updated directory of field office personnel numbers by emailing Hugo Salazar athugo.salazar@tdi.texas.gov. Or contact us and we can send you a copy current as of December 16, 2014.