Denise Elliott

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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!

Mental injury claims, often stemming from workplace stressors, are on the rise and can create major headaches for employers. Understanding the relationship between stress in the workplace and resulting mental and physical disorders, such as psychiatric disorders or cardiovascular disease, isn’t easy.  Often there are more questions than answers. Can stress lead to anxiety attacks or depression? Can job induced stress cause your blood pressure to rise? Could it cause a heart attack or cardiac condition? How do we separate work-related from non-work related causes?

A recent estimate from the National Institutes of Health projected that the cost to the American economy of stress related health claims is close to $150 billion per year.  The cost is reflected in decreased productivity, absenteeism and massive increases in medical treatment costs.  Accordingly, it is not uncommon for corporations to spend millions of dollars each year on “stress management” programs.  As claims of stress-related mental illness and cardiovascular injury continue to rise, it becomes increasingly important for companies to be able to distinguish cases of compensable work-related stress from other non-compensable situations.  To do so, the employer must have a good working knowledge of some of the medical concepts associated with stress, and the legal framework within which these concepts will be applied.  To assist employers in this regard, Part 1 of this blog post will provide an overview of the general concepts and part 2 will explore some of the more recent Pennsylvania cases.

Employers familiar with mental injury claims will recall that Pennsylvania law distinguishes between three (3) types of mental injury cases – – physical/mental (a physical stimulus causing mental injury), mental/physical (a mental or emotional experience causing physical consequences), and pure mental/mental cases (mental or emotional stimulus causing purely emotional sequelae).

The above distinctions are important because differing burdens of proof apply depending on the proper categorization of the case.  In physical/mental and mental/physical cases, the Claimant need only establish, by a preponderance of the evidence, that his or her injuries arose in the course and scope of employment.  A higher burden of proof, however, attaches to mental/mental injuries and to prevail in these cases, the Claimant must demonstrate the presence of “abnormal working conditions.”

The best example of a “physical/mental” case involves an amputation or orthopedic injury of sufficient severity to necessitate later psychological counseling or psychiatric treatment for a condition such as depression or PTSD.  The mirror image of the physical/mental case is the so-called “mental/physical” case, which involves a work-related mental stimulus, triggering physical injury or illness.  Sometimes a heart attack or cardiac condition can qualify as a compensable event under this standard. A determination of causal connectedness to work often depends on medical evidence and opinion.  Although employees often file claims for depression and anxiety caused by general workplace stress, these claims usually are not compensable, because these are mental/mental claims and the abnormal work condition requirement is difficult to meet. Although difficult to prove, mental/mental cases, where an alleged abnormal working condition creates a mental stressor that in turn produces a mental or emotional disability, are the most hotly litigated.  These are highly fact specific cases with significant emotional investment by the Claimant. The heightened burden of proof (i.e. presence of an abnormal working condition) is typically found to have been met only where a mental disability is directly caused by a violation of law, such as sex, age, race or disability discrimination, or by some workplace event that is totally unexpected and abnormal with respect to Claimant’s specific employment (i.e. a police officer who witnesses a shooting has not necessarily been exposed to an abnormal working condition, absent additional facts).

The Pennsylvania Supreme Court held benefits were proper in a mental/mental case involving a coal miner with a pre-existing post-traumatic stress disorder.  The pre-existing condition, of which the employer was aware, had been caused by unwelcome homosexual propositions from his commanding officer, while initially serving in the U.S. Army in Vietnam.  The worker successfully argued that his underlying condition was materially aggravated by a series of three incidents over eight (8) days, during which his boss made comments in the presence of other workers, implying that he wanted to have sex with Claimant.  The employer offered testimony to establish that the comments were no different from the regular crude banter that often takes place between coal miners, and therefore did not constitute abnormal working conditions.  The Pennsylvania Supreme Court disagreed, noting that there had been sufficient evidence of a “course of conduct on the part of a supervisory employee, clearly calculated to cause severe emotional distress.”  Accordingly, the claimant met his burden of showing that he suffered from a mental injury, which involved more than a mere subjective reaction to normal working conditions.  RAG & (Cyprus) Emerald Resources v. WCAB (PA Supreme Court 2007).

With the foregoing legal framework in mind, in Part 2 of this blog post, we will explore more recent developments in the mental/mental line of cases and provide some practical insights as to how you can protect your company from work-related stress claims.

There are many opportunities to reduce workers’ compensation liability exposure both before and after litigation commences.  Indeed, one of the best strategies for reducing costs is to develop a culture of “safety” in the workplace, and to actively assess and implement engineering and ergonomic changes to minimize injuries.  It is equally important to implement a list of workers’ compensation panel physicians, who are familiar with your business and who have exhibited a proactive “return to work” philosophy.  The focus of this article is on steps that should be taken from the defense attorney perspective.  Employers who take an active role in their litigated cases consistently experience lower workers’ compensation costs and fewer long term cases.

Accident Investigation

Although very basic, this step is sometimes overlooked by experienced safety and claims professionals.  The basics include:

  • Visiting the accident site to obtain a detailed understanding of how the alleged injury occurred. The investigation should be supplemented by a detailed incident report, wherein the employee must explain, in detail, how the injury occurred. Also, make sure the injured employee has been given a copy of the ”Notification of Rights and Duties” form, along with a copy of the posted panel physician list, even if these documents were provided during orientation or at a safety meeting.  Failure to provide these forms negate any obligation the employee has to treat with a panel physician for the first 90 days.
  • Interview witnesses to the incident, co-employees familiar with the allegations being made by claimant and claimant’s immediate supervisor:
    • Was there any evidence of pre-existing complaints or problems?
    • Was the claimant disciplined recently or are there other factors that make the allegation of a work-related injury suspect?
  • Review the personnel file and dispensary log for “credibility clues” (i.e., recent hire, disciplinary probation, recent demotion or change in shift or hours of work, personality conflicts or issues with supervisor, etc.).
  • Obtain HIPAA compliant authorization to gain access to family doctor records.
    • This is the single most important (yet often overlooked) step employers can take.
    • Remember that a “block 6” denial of a claim “pending further medical investigation,” is often the best move to make in a questionable case, where previous records might disclose a pre­ existing and non-work related medical condition.
  • If possible, request an IDEX search to disclose prior claims against other employers.

Be Your Own Advocate

Too often, employers feel obligated to continue to employ an injured employee because the employer relies on the advice of its insurance carrier’s attorney or claims representative. Very often, however, the insurance company’s advice is motivated by its desire to limit their own exposure, rather than by the employer’s operational needs or policies.  If you don’t know your rights as an employer and do not exercise those rights, it is far more likely that you will continue to employ an unproductive employee for a very long time, or that you will violate your own leave policies.  For example, by continuing to provide modified duty work, you may inadvertently be setting a precedent for “permanent” light duty assignments for disabled workers.  This benefits neither the employer who is paying for the unproductive employee, nor the injured employee, who is denied the training and opportunity to find a position where he or she can be productive.file5601297827370

Vendor Selection

The firms and individuals you select to represent your company in workers’ compensation matters will have a major impact on the results you achieve and your overall workers’ compensation exposure. The major players need to function well as a team; they need to respect the employers’ policies and rights as a “customer” and they should have a proven track record with regard to employment litigation.

  • Claims Administrator – – This person should be familiar with the complexities of Pennsylvania law, proper reserving practices, the employer’s return-to-work program and policies, and any industry-specific safety issues. Quarterly claims review meetings, to review both litigated and “medical only” claims should be offered.
  • Rehab Nurse – – Perhaps the most important member of the team, if used correctly, the nurse should offer advice on establishing and maintaining the physician panel list, attend physician appointments on lost time cases, make recommendations for Independent Medical Exams (“IME” and fitness-­for-duty examinations and attend claims review meetings. While telephonic nurse case management may save on vendor costs, there is no substitute for an aggressive “hands on” approach, to reducing wage loss exposure.
  • Panel Physicians – -At least 6 providers or provider groups, covering the range of expected injuries in your particular workplace. All providers need to be “screened” with respect to return to work attitudes and willingness to provide critical causation opinions. The “gate keeper” provider should be familiar with the employer’s operation and the range of modified duty positions that are available for injured workers.

Counsel Selection

Employers should not be shy about making their preferences for legal representation known to the carrier or third party administrator.  The attorney’s primary practice should be in workers’ compensation and employer references should be readily available. Your attorney should have a good working knowledge of ADA, FMLA, Unemployment Compensation, PHRC, OSHA and wrongful discharge, since workers’ compensation cases often involve other related issues. Often times, large carriers and Third Party Administrators (“TPAs”) use “captive firms” to handle all their cases at a reduced rate or “flat fee.”  Although there may be a short-term cost savings in terms of reduced fees, the lawyers handling these cases typically have extremely large case loads and lack the time to effectively manage tough cases and lack the training and expertise to advise the employers on ancillary matters, including discrimination, termination, and FMLA issues, which may involve an even higher exposure to the employer than the workers’ compensation case. Most carriers and TPAs are willing to make exceptions and offer a recommended “non-panel” lawyer to handle a workers’ compensation case, but only if the employer specifically asks for the assignment. Likewise, many carriers and TPAs offer “telephone nurse case management,” which does save on vendor costs in the short term, but is largely ineffective when direct face-to-­face meetings with treating physicians are required.

When You Must Go to Court

If your testimony is required in a given case:

  • Know the file – – Review the personnel records, dispensary file, claimant’s testimony, and all other available documentation. This will allow you to address any unanticipated issues that may arise on cross-examination.  It will also give you confidence that will, in turn, make your testimony more credible and believable. Make sure the “right” witnesses are available to testify to avoid “hearsay” objections.
  • Review your testimony with counsel – -Do not hesitate to ask for a separate meeting, in advance of the hearing, to find out what specific questions you will be asked on direct examination and what questions might be asked on cross. You need to know how the hearing will be conducted by the WCJ and what the goal of your testimony will be.  Although the testimony should not seem “rehearsed,” you should be confident in your ability to effectively handle tough questions under pressure.
  • On the witness stand, answer the question directly– -Focus on the question and try to start with a direct response first, such as “yes” or “no,” followed by an explanation. However, do not speculate or guess at answers–do not be afraid to say “I don’t remember” or “I don’t know,” or “could you repeat the question,” if you need clarification.
  • Don’t be afraid to “take on” opposing counsel— If you have prepared in the manner suggested above, the chances are excellent that you are much better prepared than your adversary. Rather than letting the attorney “bully” you by mischaracterizing your testimony, feel free to point out that he/she may have “misunderstood” your previous answer and offer to “clarify” things for them.  Keep in mind that your attorney will also have a chance to “rehabilitate” any damage done on cross-examination, by allowing you to elaborate on your prior answers during redirect examination.

Be Creative

Make your case “stand out.”

  • These are the direct comments of a Lancaster WC Judge.
  • Plant visits, job videos/photos, unusual exhibits, diagrams/maps, accident reconstruction, etc. are often useful ways to supplement employer testimony.

If you have questions about a pending workers’ compensation matter, please contact Paul Clouser or Denise Elliott.