The Commonwealth Court issued several interesting “unreported memorandum opinions” in the past several weeks.  The Court revised its Internal Operating Rule 414 several years ago, allowing unreported or unpublished opinions to be cited and relied upon by counsel, for persuasive value, but not as binding precedent in future cases.  Thus, it is sometimes important to pay attention to unreported cases, which the Court has chosen not to circulate more broadly, to advance arguments and defenses in pending cases.

In McKee v. WCAB (Geisinger Medical Center), the employee, a nursing assistant, sustained an admitted right knee meniscus tear, while moving a patient from a wheelchair to a stretcher.  She underwent an arthroscopic surgery two months later, followed by a total knee replacement, another three months after that.  The employer refused to accept the total knee replacement, and the employee sought to amend the injury description to include “aggravation of pre-existing osteoarthritis.”  Her medical records revealed a lengthy history of knee complaints, which included as part of the work injury, at least two prior surgeries.

The employer offered medical evidence, found credible by the WC Judge, that the work incident, despite causing a discrete meniscal tear, did not cause or materially worsen the underlying arthritic condition. In legal terminology, the work incident was not a “substantial contributing factor” in her needing a knee replacement.  Specifically, Claimant’s medical expert could not provide a credible explanation of any “biomechanical, biochemical, tissue or cellular changes in the knee” that would demonstrate an aggravation of the knee osteoarthritis, which necessitated the joint replacement surgery.

In a second unreported case, Kozlowski v. WCAB (Lehigh Valley Imaging), the Court found that a medical secretary who works in a seated position while scheduling and checking in patients, answering phone calls, filing and faxing, did not sustain a work injury, when she spontaneously experienced a sudden onset of low back pain while scheduling patients at work.  The employee had injured her low back several years prior (but could not recall how that injury occurred).  The medical evidence she submitted to support her claim, reflected only the history that “her chair is very uncomfortable and is the cause of her pain.”  Her physician also noted that her radiating low back pain was “related to repetitive activity” and “prolonged sitting” at work.

The employer’s expert diagnosed a non-work related, non-specific low back pain with leg pain and numbness, and pre-existing symptomatic mild lumbar disc degeneration.  He felt that there was no precipitating event, trauma or repetitive activity to suggest that Claimant suffered a work-related lumbar spinal injury.  The Court found no error in the Judge’s acceptance of the employer’s evidence because Claimant failed to meet her burden of proof by presenting unequivocal medical testimony establishing a causal connection between her injury and the alleged work-related cause.  Such evidence was necessary, because there was no obvious connection and no “act requiring force or strain” that had caused her pain.

The above fact patterns are fairly typical in today’s aging workforce and the holdings in these cases, may be helpful in defending against various non-work-related conditions or circumstances.

Should you wish to discuss a particular workers’ compensation case or issue, please do not hesitate to contact Paul Clouser, Denise Elliott or Micah Saul, in our Lancaster office.

The first cases addressing the impact of Pennsylvania’s Construction Workplace Misclassification Act (“CWMA”) in the context of the Pennsylvania’s Workers’ Compensation Act, have finally reached the Appellate Courts. The CWMA, which became effective on February 10, 2011, imposes criminal and administrative penalties for the misclassification of employees as “independent contractors” at commercial and residential construction sites in Pennsylvania. “Construction” is broadly defined to include “erection, reconstruction, demolition, alteration, modification, custom fabrication, building assembly, site prep and repair work,” at both residential and commercial sites.

The CWMA details a multi-prong test for determining whether a worker is an “employee” or “independent contractor” for purposes of the Act:

  1. The individual must have written contract to perform such services;
  2. The individual must be free from control or direction over the performance of such services, both by contract and in fact;
  3. The individual must be customarily engaged in an independently established trade, occupation, profession or business, with a business location separate from the location of the person for whom services are being performed; and
  4. The individual must maintain liability insurance during the term of the contract of at least $50,000.

What had been unclear for some time, was whether the formal requirements of the CWMA would supplant the common law definition of “employee” under the Pennsylvania Workers’ Compensation Act, which had focused primarily on a traditional “direction and control test” for distinguishing between independent contractors and employees. This issue was recently addressed in D & R Construction v WCAB. The Commonwealth Court in D & R Construction ruled that, for injuries occurring at construction sites on or after February 10, 2011, the injured worker will be deemed an employee, unless all of the mandatory criteria are in place for a finding of independent contractor status, pursuant to the CWMA. Additionally, all criteria should be given equal weight by the WC Judge, and if any one is absent, the injured worker will be deemed to be an “employee” of the business entity requesting the services.

In light of this ruling and pending clarification by the Pennsylvania Supreme Court, it is critically important that employers utilizing subcontractors at Pennsylvania residential and commercial project sites, make sure that such subcontractors and their employees meet the definition of “independent contractors” under the CWMA and are properly insured for both liability and workers’ compensation. Contractual indemnification language may also be advantageous, in the event of an unexpected construction site injury or claim.

For further information on construction site injuries or guidance, please contact Micah Saul, Denise Elliott, or Paul Clouser in the Lancaster office.

Picture this.  You have just settled a problem workers’ compensation case and you or your carrier have disbursed settlement checks totaling $100,000 in exchange for a full and complete compromise and release of “any and all past, present and/or future benefits, including but not limited to, wage loss benefits, disfigurement benefits, medical benefits, or any other monies of any kind including, but not limited to, interest, costs, attorney’s fee and or penalties for or in connection with the alleged 08/12/2015 work injury claims Employee may have with or against Employer…”

Several months later, the same employee sues your company in Federal Court for violating his FMLA rights, retaliation for exercising FMLA rights, and for wrongful discharge based upon unlawful retaliation for filing a workers’ compensation claim in violation of Pennsylvania common law.

“What on Earth,” you say.  “But we just paid out a $100,000 settlement!” Unfortunately, the employee may pursue these additional claims because they were not properly released at the time of the workers’ compensation settlement.  The United States Court of Appeals for the Third Circuit recently held that a Compromise and Release Agreement under the Pennsylvania Workers’ Compensation Act, covers only those matters which “may fairly be said to have been within the contemplation of the parties when the release was given.”  Zuber v. Boscov’s, No. 16-3217 (United States Court of Appeals for the Third Circuit, opinion filed September 11, 2017).  In Zuber, the agreement referenced only work injury claims and as such, the settlement document was only read to prevent the employee from seeking additional money related to an alleged work injury claim.  Likewise, the employee certification page of the subject agreement specifically stated that the employee “understands that the Compromise and Release is a settlement of his workers’ compensation claim only” and thus, the document was “unambiguously” a specific and limited release rather than a general release.

The above problems could have been avoided, of course, by utilizing separate release documents, coupled with a properly worded letter of resignation, to make it clear that the employee was indeed consenting to and bargaining for a global resolution of all employment issues, including a full compromise and release of his workers’ compensation rights, and a settlement and release of other potential employment claims under other laws and statutes including the FMLA, ADA, ADEA and wrongful discharge.

Often times defense counsel assigned by an insurance carrier in workers’ compensation matters will proceed to settlement without proper consideration of other ancillary employment matters and exposures.  Accordingly, employers must be vigilant in making sure that their interests are properly protected and that employees who accept workers’ compensation settlements do not return to court seeking other costly benefits or remedies. Fully insured employers should insist that the carrier appointed attorney consult with employment law counsel on the settlement. Employers who are self-insured or have large deductible plans, who have more leeway in selecting defense counsel should insist on hiring workers’ compensation defense counsel who are familiar with employment laws and statutes, to avoid the result in the Zuber case.

For further information, on this subject, please feel free to contact Denise Elliott, Micah Saul or Paul Clouser, in our Lancaster office.

Prior to June 20, 2017, a powerful tool was available to employers and workers’ compensation carriers to cap exposure on long term workers’ compensation claims.  That tool, provided by the Act 44 amendments in 1996, was called an impairment rating evaluation (IRE) and generally worked like this: once a claimant had received 104 weeks of total disability benefits and had reached maximum medical improvement, the employer could request an IRE.  A doctor was assigned to perform the evaluation and was required by statute to consult the most recent version of the American Medical Association’s guidelines.  If, under those guidelines, the IRE doctor determined that the claimant’s injury caused less than 50% whole body impairment, the employee’s workers’ compensation benefits could be modified from total to partial disability status, with a corresponding time limitation on future indemnity benefits.  The process was helpful in resolving serious injury cases, where the employee was too disabled to work but had reached a medical plateau.

Pennsylvania workers’ compensation law places no cap on the length of time in which a claimant can receive total disability benefits.  Partial disability benefits, however, are capped at 500 weeks.  Thus, via the IRE process, it was possible to prevent a claimant from receiving total disability benefits indefinitely by modifying their status to a maximum of 500 weeks of partial disability benefits.

On June 20, 2017, the Pennsylvania Supreme Court changed all of this with its decision in Protz v. Workers’ Compensation Appeal Board.  In that case, the Court held that the IRE process was unconstitutional because the legislature is not permitted to delegate its authority to issue impairment rating guidelines to a non-legislative body (i.e. the American Medical Association).  Since the IRE provisions are legislated to be applied under the most current version of the American Medical Association guidelines (which are frequently updated), the Supreme Court struck down the IRE provisions of Pennsylvania’s Workers’ Compensation Act as an unconstitutional delegation of legislative authority.

The immediate impact of Protz on future claims is clear – unless the Pennsylvania Supreme Court reconsiders and reverses its decision, the IRE process is no longer available to employers and workers’ compensation insurance carriers.  This means that it will be considerably more difficult to cap exposure on workers’ compensation claims where an employee has received 104 weeks of temporary total disability benefits and has reached maximum medical improvement.  Indeed, a reversion to the use of vocational experts to establish job availability is likely, where light duty work at the time-of-injury employer is not available.  For claims where the IRE process was used prior to the court’s decision in Protz, outcomes are less clear.

Employers who are litigating a modification of benefits based on an IRE would do well to withdraw the modification petition.  Now that the IRE process has been deemed unconstitutional by the Pennsylvania Supreme Court, an IRE can no longer serve as a valid basis for future modification of benefits.  Without a valid basis to litigate a modification petition, employers who continue to rely on an IRE in litigation are exposed to penalties and unreasonable contest fees.

Likewise, employers who are actively seeking to obtain an IRE should refrain from doing so.  Again, the evaluation cannot provide a valid basis for modification of benefits, and the Bureau of Workers’ Compensation has also indicated that it will no longer assign IRE physicians in the wake of Protz.

So what about claims where benefits have been modified or a claimant’s status has been changed as the result of a past IRE where the claimant failed to appeal?  Employers likely have no affirmative obligation to restore the pre-IRE, pre-modification status quo, but claimants may file petitions seeking to do just that.  While Pennsylvania law typically prevents the retroactive application of judicial decisions to matters that have been fully and finally determined, it is unclear how workers’ compensation judges, the Appeal Board, and Pennsylvania Courts will approach the issue. In cases where an employer obtained a modification of benefits because of an IRE and the claimant did not appeal, the doctrine of res judicata may serve to prevent re-litigation of the case.

We will continue to monitor the status and impact of Protz; additional developments will be reported here on our blog.

Employers often shy away from discharging employees for disciplinary reasons when those employees are receiving workers’ compensation benefits, such as in instances where the employee is working a modified duty assignment.  However, such employees can and should be held to the same standards as other employees, including compliance with applicable policies and procedures.  Additionally, so long as the discharge is found to be related to the disciplinary violation, any subsequent loss of earnings will be deemed to be unrelated to the work injury, thus rendering the discharged employee ineligible for reinstatement of workers’ compensation wage loss benefits.

In a recent unreported Commonwealth court case, (Waugh v. WCAB, No. 702 C.D. 2016), the Claimant was employed as a certified nursing assistant (CNA) at a medical center.  She had sustained an accepted work injury to her right arm, when a patient grabbed and twisted her arm in the course and scope of her employment.  She underwent two surgeries and eventually returned to work in a modified duty capacity.

While working modified duty, Claimant was reprimanded for acting outside the scope of her employment for administering medication to a patient.  Several months later, there was a similar incident, in which Claimant applied a tourniquet to a patient while assisting a phlebotomist, who was attempting to draw blood.  Employer’s policy in the event a phlebotomist cannot locate a vein, is to call a specialized IV team to insert the needle and draw blood.  Claimant was terminated for this second instance of acting outside the scope of her employment.  Despite her protests that she was “only trying to help,” the termination was held to be proper, as was the workers’ compensation determination denying reinstatement of benefits.

The Court reaffirmed the longstanding rule that a lack of “good faith” on the part of the claimant, is sufficient to deny reinstatement of workers’ compensation wage loss benefits.  This is so, even where unemployment benefits are awarded, on the basis that the employer had not established a case of willful misconduct under the Pennsylvania Unemployment Compensation Act.

The determination of good faith or bad faith is obviously “fact sensitive,” but in situations where the employer would discharge the employee absent a workers’ compensation backdrop, this factor alone should not discourage the employer from taking the appropriate disciplinary action, including discharge.

For further information, on this subject, please feel free to contact Denise Elliott, Micah Saul or Paul Clouser, in our Lancaster office.

As a general rule, an employee who is injured while commuting to or from work is not entitled to workers’ compensation benefits, as the injuries are not deemed to be “in the course and scope of employment” by virtue of the longstanding “going and coming rule.”  There are exceptions to the rule, including: (1) situations where there is no fixed place of employment and the employee is therefore deemed to be a “traveling,” as opposed to “stationary” employee; (2) the employee is on a special assignment for the employer; (3) the employment contract includes transportation to and from work; or (4) special circumstances exist, such that the employee was furthering the interests of the employer when injured.

In an interesting recent case, the Commonwealth Court awarded compensation under the special circumstances exception, despite the fact that Claimant was commuting to work at the time of his motor vehicle accident.

The employee, Miller, was a salaried director of maintenance services, exempt from the overtime requirements of the Fair Labor Standards Act. His regular work hours were from 7:00 a.m. to 3:30 p.m., Monday through Friday.  The employer maintained a four building campus as a facility for senior residents.  The campus had a system of security cameras, whose maintenance was an important priority for the employer.

Miller testified that in addition to his regular hours, he would be called in while off-site two to three times monthly.  In such instances, he received “comp time,” in lieu of additional pay.  The comp time accrued from the time he answered the phone, until he arrived back at home.  On the morning in question, Miller was “feeling very poor and weak.”  He stayed home past his usual 7:00 a.m. start time, with the intention of taking a sick day.  However, the employer called and requested that he stop in to reset the security cameras, after which he could return home for the rest of the day.  En route to the facility, Miller became nauseous and veered off the road, hitting a telephone pole.  He sustained multiple injuries, including a broken eye socket, broken pelvis, ruptured bladder and multiple scars and disfigurements.

The key issue before the WC Judge was whether Miller was commuting to a fixed place of employment, such that the “going and coming rule” barred his claim, or whether special circumstances existed, such that an exception to the rule applied.

Since “but for” the security camera emergency, Miller would not have made the trip to work, the Judge, and subsequently the Commonwealth Court, concluded that this factor brought the case within the “special circumstances” exception to the going and coming rule, and awarded benefits.

The key takeaway is that commuting cases are often fact sensitive and need to be analyzed carefully, to determine whether workers’ compensation benefits are appropriate.  For example, construction workers who might at first glance appear to be “traveling” as opposed to “stationary” employees, are frequently deemed to be “stationary,” if they are working at only one job site at a time.  As such, the “going and coming” rule might preclude compensation in such cases, absent special circumstances.

Please contact Paul Clouser, Denise Elliott or Micah Saul, if you have questions about situations in which your employees may or may not be deemed to be “in the course and scope” of their employment, pursuant to the Pennsylvania Workers’ Compensation Act.

The use of temporary employees provided by agencies that supply laborers, secretaries, nurses or other skilled or unskilled workers to the public and private sector is increasing. Employers who use these temporary agency workers’ must be wary of the relationships created by the use of the temporary agency workers. Are the temporary workers “employed” by the agency, the borrowing employer, or both, for purposes of the Pennsylvania Workers’ Compensation Act (the “Act”)?  The answer will determine which entity or entities may claim immunity from a common law action, under the exclusive remedy provisions of the Act.

The critical test for determining whether a worker furnished by one entity to another is “employed” by the latter, is whether the worker is under the latter’s right of control with respect to both the work performed and the manner in which the work is performed.  For example, suppose a municipal township needs a temporary worker to ride on the back of a municipal trash truck.  After receiving only minimal instruction, the worker falls from the moving truck on his first day of work and dies ten (10) months later.  Suppose the agency, Labor Ready, pays $770,000 in workers’ compensation benefits.  A civil suit is then initiated by the decedent’s estate against both Labor Ready and the Township.  Does the decedent’s estate have a viable civil claim against either entity? Under this fact pattern, the trial judge dismissed, on summary judgment, both Labor Ready and Rye Township, finding that both entities were “employers” entitled to protection under the immunity provisions of the Act.  The ruling was affirmed by the Commonwealth Court on appeal.  Nagle v. Labor Ready and Rye Township (Pa. Cmwlth. 2016).  Similar results have been reached in volunteer fire fighter liability cases, where both the volunteer fire company and the sponsoring township enjoy immunity.  Indeed the “borrowed employee” doctrine provides broad immunity in both the public and private sectors, at least where the borrowing employer exerts the requisite degree of control over the borrowed employee, (See, e.g., Hendershot v. Emmeci Northampton County 2016). A temporary agency supplied a machine operator to its manufacturing client and the agency employee sustained serious injuries while cleaning the machine.

Nevertheless, despite broad interpretation on the “borrowed employee” doctrine, employers have been found to be liable for damages beyond workers’ compensation, in circumstances where: (a) the requisite degree of control does not exist (i.e. a company leases a piece of equipment with an operator and the operator is then injured on the company’s premises) or (b) the borrowing employer forfeits its immunity by filing an Answer to the workers’ compensation claim petition denying that it is the employer, and alleging that the temporary agency is solely responsible.  Black v. Labor Ready (Pa. Super. 2010).

Employers should be sensitive to the range of potential outcomes when staffing positions with “borrowed employees,” and should review any temporary agency agreements to insure the broadest possible immunity from suit, along with proper indemnification language, with respect to agency employees who are hired into temporary positions or assignments.

Please contact a member of our Labor and Employment Group for specific legal analysis of temporary employment arrangements at your facility.

On May 11, 2016, the Occupational Safety and Health Administration (“OSHA”) finalized a recordkeeping and reporting rule that will require covered employers to take the additional step of electronically submitting to OSHA, injury and illness information that is required to be maintained under existing OSHA regulations.  The rule becomes effective January 1, 2017.

The new electronic submission requirement applies to: (a) employers with 250 or more employers who are currently required to keep OSHA injury and illness records (i.e. OSHA forms 300, 300A and 301) and (b) employers with 20-249 employees in certain industries with historically high rates of occupational industries and illnesses.  The electronic submission requirements do not alter the employer’s obligation to complete and retain injury and illness records, as before.  For illnesses and injuries occurring in 2017, the electronic submission deadline is July 1, 2017.

Believe it or not, OSHA plans to post the injury and illness data it collects on its public website (www.osha.gov).  OSHA has indicated that it will remove any personally identifiable information (“PII”) before making the data available to the public.  States that operate their own job safety and health programs (i.e. OSHA state plans) must adopt requirements that are substantially identical to the new rule within six (6) months.

The new requirements introduce a public watchdog role.  Apparently, this role is being added in response to the near doubling of the number of workplaces in the U.S. from 1981 to the present, and the corresponding decrease in the ratio of OSHA inspectors, to one per 4300 workplaces (according to a study by the Center for Effective Government).

The rule also bars employers from retaliating against workers for reporting workplace injuries and incidents, thereby creating a supplemental avenue for disgruntled workers who are inclined to pursue a wrongful discharge cause of action, in addition to more traditional workers’ compensation claims, for alleged workplace injuries.

The net effect of the rule may be to spur additional employment lawsuits, by making it easier for plaintiff lawyers to mine for accident information.

We will keep you apprised as to further developments, but in the interim, please feel free to contact any member of our Labor and Employment Group, with questions or concerns.

In Part 1 of this post, we explored the three types of work related mental injury claims addressed by the Pennsylvania Workers’ Compensation Act. In Part 2, we discussed how courts are increasingly easing the burden of proving abnormal working conditions. Now, we will discuss practical steps you can take to ensure you are not faced with a workers’ compensation claim for a mental condition completely unrelated to the workplace.

There are, of course, many reasons why people experience unhappiness or depression or feelings of insecurity or imbalance completely unrelated to their work environment:

Family Situations

  • a parent and a child do not talk to each other;
  • a spouse has left a marriage;
  • a wife is physically incapable of having a child;
  • a spouse is abusive, physically or emotionally;
  • a spouse is drug dependent or alcohol dependent;
  • a spouse has had an extramarital affair;
  • a parent suffers from Alzheimer’s or Dementia requiring the son or daughter to institutionalize him or her;
  • an adult experiences for the first time memories of abuse inflicted years earlier by a parent or other family member;
  • a parent’s child is killed or physically harmed;
  • a parent’s child suffers from a dysfunctional condition such as Attention Deficit Disorder or Schizophrenia or becomes drug dependent or has encounters with law enforcement

 Self-Induced Depression

  • the individual experiences anger/frustration over his or her lack of achievement, e.g. failing to land a job promotion or having never attended college;
  • the individual is inherently self-driven due to family expectations or unrealistic self-expectations;
  • an individual experiences frustration/anger over his or her confrontation with middle age;
  • the individual experiences delusions of grandeur causing profound employee dissatisfaction with job;

Other Causes

  • seemingly unrelated non-work related psychiatric conditions such as “histrionic personality syndrome” resulting indirectly in the filing of a workers’ compensation claim;
  • a false claim filed for purposes of secondary gain or monetary reward

What many lawyers fail to consider and investigate, are the circumstances surrounding, and leading up to, the occurrence of the mental injury at issue.  The lawyer who explores and analyzes those circumstances has a distinct advantage over the lawyer who does nothing more than respond to the basic allegations of the claim.

Employers, adjusters and nurse case managers can greatly assist their lawyers by conducting a thorough investigation after notice of a “stress claim.”  Some investigation best practices are as follows:

  • Conduct a thorough interview of the employee, ask questions about history of mental health treatment or diagnoses and ask about any other potential contributing factors.
  • Review employee’s attendance record for a history/pattern of absences that may be related to a stress or mental health reasons.
  • Obtain a HIPAA  and mental health release allowing the release of mental health information by the employee’s treating doctors and then obtain such records; also look for increased blood pressure, sleep disorders and cardiovascular disease, which may be related to non work stressors.
  • Speak to supervisors and co-workers to determine if the employee has mentioned any stress related issues in the past.
  • Investigate the working condition the employee alleges is abnormal or that led to the mental injury claim. Is it truly abnormal? Did the employee’s job recently change? Were there any reports of problems, issues or concerns prior to receiving notice of the claim? Have similar incidents occurred with other employees and is there any training provided to employees regarding such situations, etc?

Once the facts have been investigated, it is the responsibility of the attorney to present the facts to the workers’ compensation judge from the proper perspective.  Proper development of the facts, including the events leading up to the claim, ultimately allows defense counsel to provide the workers’ compensation judge with the full flavor of the dispute.

If you have questions regarding an alleged work-related stress or mental injury claim, please contact Paul Clouser or Denise Elliott in the Lancaster office.

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!