By Kevin L. Connors, Esquire
Close your eyes.
Now imagine your dream job.
No, it is not being asked to play Jack Nicholson, or, for that matter, Nurse Ratchet, in the classically disturbing One Flew Over the Cuckoo’s Nest.
Nor, is it being Dirty Harry, never sure how many bullets are left in your gun chambers, never quite sure whether to arrest or execute.
No, it is, as it was in Murphy v. WCAB (Ace Check Cashing), being the recently-promoted General Manager of a check cashing store, responsible for Employee supervision and scheduling, managing money, and overseeing 8 regional stores.
In Murphy, decided by the Pennsylvania Commonwealth Court on February 20, 2015, the Claimant filed a Claim Petition for Pennsylvania workers’ compensation benefits, alleging that she sustained work-related injuries to her neck, shoulders, thoracic spine, wrist, and ankles, as well as claiming that she sustained post-traumatic stress disorder and depression, when she claimed that she had been physically and psychologically assaulted during the course of an armed robbery of Ace’s main offices in 2010.
She also filed a Penalty Petition, alleging that the Employer violated the Act by never issuing a compensation Notice, neither accepting or denying her workers’ compensation claim, or, alternatively, paying her temporary compensation benefits during the initial 90-day period of investigating the compensability of the claim.
Testifying that when she arrived at work, that she was accosted by an armed robber, and that the armed felon then compelled the Claimant to turn off all the alarms in the office, as the felon perfected an unlawful redistribution of wealth while pointing a gun at the Claimant’s back.
After the robber concluded his ungodly business, the Claimant was able to call 911, although she remained bound by the robber’s wicked knots.
When Police arrived, the Claimant attempted to run to her husband, who had been detained outside by a second robber, with the summoned Police drawing and pointing their guns at the Claimant, who then became hysterical, not knowing whether or not her husband was dead or alive.
After the air cleared, the Claimant and husband were reunited, and the company President was notified of the incident.
Almost immediately, the Claimant began experiencing chest pains, and was having difficulty breathing and speaking. She was ambulanced to a hospital, and a copy of the surveillance video of the robbery was admitted into evidence before the Workers’ Compensation Judge presiding over the Claimant’s Petitions.
The Claimant sought treatment with Dr. Geoffrey Temple, whose expertise is being available to treat a fairly high percentage of the injured Claimant and Plaintiff population in Southeastern Pennsylvania, with Dr. Temple referring the Claimant to Sherri Landes, Ph.D. as well as recommending that the Claimant consult a psychiatrist to secure medications to address the Claimant’s depression and anxiety, as she was complaining that she was suffering from nightmares, panic attacks, difficulty concentrating, and crying without cause daily.
During testimony before the Workers’ Compensation Judge, she testified that she was too afraid to go back to work, as she was worried that the robbers would ultimately be able to track her to her home.
In support of her Petition, the Claimant presented the deposition testimony of Dr. Temple, who testified that the Claimant had sustained spinal injuries at L5-S1, as well as post-traumatic stress disorder.
The Claimant also presented the deposition testimony of Dr. Landes, a psychologist. In Dr. Landes’ testimony, it was revealed that the Claimant’s son-in-law had been murdered 6 years earlier, during a robbery, while he was working for Ace as a Courier.
Dr. Landes testified that the Claimant was suffering from post-traumatic stress disorder, and that she was disabled from being able to work as a Manager for Ace.
The Employer also presented medical evidence, to include the deposition testimony of an IME physician who concluded that there was no correlation between the Claimant’s physical complaints and the robbery.
Oddly, the Employer did not present evidence disputing the Claimant’s alleged psychological injury, instead presenting testimony from several witnesses regarding Ace’s security measures and procedures, the Claimant’s training in those procedures, with the Employer also boldly arguing that the Claimant was actually a participant as a co-conspirator, in the robbery, that allegedly caused her injuries.
To boldly go where no defense has gone before.
Unbelievably, the Workers’ Compensation Judge found that the robbery was not “an abnormal working condition for a General Manager in a check cashing business.”
In the absence of an abnormal working condition, the Workers’ Compensation Judge concluded that the Claimant should not be compensated for her psychological or physical injuries, resulting in the Workers’ Compensation Judge denying the Claimant’s Petitions, including her Claim Petition, and her Penalty Petition.
Would you like to spend some one-on-one time with this Workers’ Compensation Judge?
Undaunted, the Claimant appealed to the Appeal Board, with the Board affirming the Judge’s Decision, holding that the Claimant’s physical injuries, for which she apparently did not seek medical treatment, were insufficient to trigger the physical/mental standard, as the cause of the Claimant’s mental injuries, were, of course, the post-traumatic stress disorder and depression diagnosed by both doctors Temple and Landes.
Twice-snubbed, the Claimant appealed to the Pennsylvania Commonwealth Court, arguing that her claim should be considered compensable under Pennsylvania’s physical/mental standard, and not under the mental/mental standard, which requires a much higher burden of proof, with the Claimant also arguing that the robbery could not be considered to be a normal working condition, even for the Manager of a check cashing store.
Reviewing relevant precedents for similar fact scenarios, including Donovan (1999), Bartholetti (2007), Gullick (1998), the Commonwealth Court, in specific reliance upon Ryan (1998), noted that to base a mental injury on a physical/mental standard requires the predicate that the compensation-seeking Claimant sustain physical injuries during the work incident from which the mental injuries are alleged to have arisen.
More importantly, the precedents relied upon by the Commonwealth Court notably rejected the argument that physical contact alone was sufficient to implicate the physical/mental standard.
For that reason, the Commonwealth Court held that the physical/mental standard was inapplicable to the Claimant’s claim, and that her alleged mental injuries could only be decided by application of Pennsylvania’s mental/mental injury standard, requiring the compensation-seeking Claimant to prove the occurrence of an abnormal working condition causing the mental/mental injury, to overcome the compensation claim involving a subjective reaction to a normal working condition.
Addressing the abnormal working condition requirement for a mental/mental injury, the Commonwealth Court, applying the Supreme Court holdings in Payes II and Pennsylvania Liquor Control Board v. WCAB (Kochanowicz), vacated the Board’s Order affirming the Judge’s denial of the Claimant’s workers’ compensation claim, ordering that the case be remanded back to the Judge, to apply the analysis articulated by the Pennsylvania Supreme Court in Payes II, which was a case that involved a State Trooper who sought workers’ compensation benefits, in the course of which he claimed that he developed post-traumatic stress disorder after he struck and killed a pedestrian, who intentionally ran in front of his patrol car, after which the State Trooper attempted to resuscitate the pedestrian, with the State Trooper’s claim initially being granted by the Workers’ Compensation Judge, then overturned by the Appeal Board, then affirmed by the Commonwealth Court, with the Supreme Court reversing the Appeal Board and Commonwealth Court, finding that the Judge’s Decision that the Trooper’s post-traumatic stress disorder was caused by a “singular, extraordinary event occurring during the work shift”, was sufficient to establish the compensability of the Trooper’s post-traumatic stress disorder, with compensation benefits being awarded, on grounds that the State Trooper’s post-traumatic stress disorder was caused by an “abnormal working condition”, involving a nexus between the pedestrian’s act of suicide, and the Trooper’s post-accident fear and stress, which arose after the State Trooper attempted to resuscitate the deceased pedestrian through mouth-to-mouth and attempted CPR; the Payes II Decision refers to the State Trooper being exposed to blood from the suicidal pedestrian, further fueling the suggestion that Payes II was not simply a mental/mental injury claim, but involved a crossover physical/mental injury claim, given the bodily fluids that the State Trooper was exposed to, in the course of attempting to resuscitate the fallen pedestrian.
Can any of this be explained in English?
And the answer is, that it makes perfect sense if you speak compensationitis, because otherwise you are dealing with a slippery slope as the wall between mental/mental and physical/mental becomes like a movie set from Inception (2010).
What are the friggin takeaways?
First, Pennsylvania Supreme Court’s controversial Decisions in Payes II and the Pennsylvania Liquor Control Board both stand for the proposition that there is no bright-line rule, given the highly subjective nature of mental/mental injury claims.
Next, without a bright-line rule, what are you supposed to do to evaluate mental/mental injury claims for compensability/denial?
Well, you could call us, as in “who you gonna call?”, always better than simply accepting this kind of claim, or, you can move your business to a jurisdiction that does not allow mental/mental injuries to be compensable, although, the truth is, that these claims are extremely rare, and, are, in fact factually very unusual, making them all the more wonderful to talk about, a point further hammered home by the no bright-line rule upon which claim facts cannot be pigeon-holed as compensable or not.
Of course, if a bright-line rule did exist, our lives would be both more normal and less interesting, and that would leave little room for the Abe Normals (Young Frankenstein) in all of us.
ConnorsO’Dell LLP
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