October 28, 2010

Being
Normal

By Kevin L. Connors

No matter what you do, that is what you are, and, depending on what you do, and how you do it, defines whether you are normal or not, with insincere apologies to Young Frankenstein and Igor.

Not to worry, this is not an indictment of your work ethic, nor is it about your political, religious, social, or other opinions, as this is simply a testament to the seemingly absolute truism in workers’ compensation claims, that it is nearly impossible to prove the compensability of mental/mental injuries, predicated upon a claim of “abnormal working conditions.”

Recently, the Commonwealth Court issued an opinion on October 6, 2010, in Payes v. WCAB (PA State Police), underscoring the well-settled compensation theorem, that Claimants employed in highly stressful occupations, like State Troopers, Police Officers, Firefighters, Emergency Room Personnel, and Insurance Claims Adjusters, must prove that the emotional/psychological stimuli allegedly triggering the mental/mental “injury”, typically diagnosed as post traumatic stress disorder (“PTSD”), is/are so extraordinary, within the context of what is objectively considered to be normal or ordinary job-specific stimuli, that these claims are routinely defended by employers, as the claims are not dependent upon the diagnosis of an “work injury”, the gravamen of all other physical injury claims, but are instead one of the most difficult claims under the Pennsylvania Workers’ Compensation Act for Claimants to prove as being compensable.

No question, but that we love defending these types of claims, rich as they are in milieu and angst.

A Pennsylvania State Trooper claimed that he developed post traumatic stress disorder after his patrol car struck a mentally disturbed woman.

In Payes, a Pennsylvania State Trooper claimed that he developed post traumatic stress disorder, after his patrol car struck a mentally disturbed woman, who, Xanax-deprived, ran in front of the trooper’s patrol car on Rt. 81. The accident occurred at 5:46 a.m. in the pre-dawn morning hours, and the trooper did not see the woman, who was dressed entirely in black, as she darted out in front of his patrol car, before he had time to avoid striking her. The woman flipped over the patrol car, and died as a result of her injuries.

The state trooper stopped his vehicle, radioed for an ambulance, and he then attempted to unsuccessfully resuscitate the woman through mouth-to-mouth.

The accident occurred on November 28, 2006, and the trooper did not return to work until January 2, 2007. When returning to work, he only worked a few days, primarily doing trooper paperwork, as he did not think that he was ready to return to being a patrol officer, and he felt anxious when driving.

Since the trooper had been exposed to the dead woman’s blood, the Commonwealth paid for medical expenses, while denying any liability for alleged psychological injury.

Since the trooper had been exposed to the dead woman’s blood, in the course of performing mouth-to-mouth resuscitation, the Commonwealth paid for the trooper’s reasonable and necessary medical expenses, related to his exposure to the victim’s blood, although the Commonwealth denied any liability for the trooper’s alleged psychological injury, and/or for any wage loss benefits that the trooper sought, as a result of that accident.

Seeking disability benefits for a mental/mental injury, the Claimant was forced to concede that, as a state trooper, he had been exposed to violent crimes and accident trauma, and that those type of exposures “came with the job”. However, he testified that he “never once imagined that something like this could happen”, and that “I never thought I’d be … possibly the method of someone’s suicide.”

In support of his mental/mental claim, he presented two expert witnesses, one being a psychiatrist, and the other being a psychologist. Both expert witnesses testified that they had diagnosed the Claimant with post traumatic stress disorder, severe anxiety, and depression, both relating the diagnoses to the accident, and both opining that the Claimant was not able to return to work because of his psychological injuries.

The defenses raised by the employer included the trooper’s commanding officer testifying that all troopers receive training on stress management and post traumatic stress disorder.

However, of far greater interest to us, as defense practitioners, were the defenses raised by the employer, to include the trooper’s commanding officer testifying that all troopers are given basic training at Cadet Academy, on stress management and post traumatic stress disorder, and that they are routinely assigned to respond to car accidents, being trained in first aid procedures, and, if necessary, to render first response assistance at car accident crash sites.

The Commonwealth also presented the testimony of a defense psychiatrist, whose opinion was that the trooper had a pre-existing adjustment disorder that was temporarily exacerbated by the car accident in question, but that the trooper had returned to baseline psychological/emotional function, as of the defense psychiatrist’s examination, approximately eleven months post-accident.

The judge granted the Claimant’s Petition, finding that the Claimant had sustained a compensable injury.

Initially, the workers’ compensation judge accepted the testimony of the trooper and the trooper’s commanding officer, as well as the expert testimony of the trooper’s psychiatrist and psychologist, with the workers’ compensation judge granting the Claimant’s Claim Petition, finding that the Claimant had sustained a compensable mental/mental injury, resulting from mental/emotional stimuli, and, in doing so, finding that the trooper had been injured as a result of “abnormal working conditions.”

So holding, the workers’ compensation judge found as follows:

“While state troopers, such as the Claimant, are exposed to murder, severe personal injury, crimes, and other violent activities, the circumstances of the present case, which occurred directly to the Claimant, when the victim darted in front of his vehicle, and the events which occurred immediately when he attempted to save her life, were not normal for a state trooper, but instead were extraordinary and unusual events.”

No real surprise, but the Appeal Board reversed the WCJ’s decision, and found that the trooper had not been exposed to abnormal working conditions, as the trooper was employed in a “stressful and perilous profession”, notwithstanding the unfortunate events that the Claimant had been exposed to, as a result of the car accident in question.

On appeal, the Commonwealth Court held that the trooper would have been required to show that his alleged psychiatric/psychological injury had been caused by extraordinary events.

On appeal, the Commonwealth Court, in an opinion authored by Senior Judge Flaherty, held that the trooper would have been required to show that his alleged psychiatric/psychological injury had been caused by extraordinary events, characterized by exposure to abnormal working conditions, with the Court holding that the Claimant, as a state trooper, would necessarily be routinely exposed to witnessing horrific physical tragedies, responding to emergencies involving violent crimes and car accidents, such that the events to which the trooper had been exposed could not be considered to be either “extraordinary” or “abnormal”, as those events were always within the realm of possibility that a state trooper might have to witness.

Holding that the car accident events in question were not “above and beyond what would be considered normal working conditions for a state trooper”, the Commonwealth Court ruled that “police officers are involved in a highly stressful profession and are required to, and do, respond to emergency situations as part of their duties. Traumatic events are not out of the ordinary for police officers, and, at times, attempts at saving a life fail.”

Practical Implications

Workers’ compensation claims never arise in a vacuum, and the “abnormal working conditions” burden of proof in mental/mental injury claims illustrates the absolute necessity of developing a comprehensive evidentiary record, whether prosecuting or defending the claim, in order to avoid claims being granted simply by virtue of Claimants alleging work-related injuries.

No question but that a mental/mental claim involves a much more narrow focus of concentration, in terms of proving/disproving “abnormal working conditions,” although the telescopic power of these types of claims is their ability to mirror what we believe should be expected, in the prosecution and defense of workers’ compensation claims, that their disposition be based upon objective and not subjective standards, that apply across the board, and not selectively.

DuffyConnors

As the Pennsylvania representative of the National Workers’ Compensation Defense Network, we encourage you to contact our workers’ compensation defense attorneys to discuss the significance of this decision, its potential impact on your workers’ compensation defense practice, as well as to offer any other feedback or insight that you might wish to share with us, concerning your experience in handling workers’ compensation claims; our workers’ compensation defense attorneys remain always available to answer any questions that you might have about workers’ compensation practice and procedure, as well as to provide you with our own professional experiences have been in defending thousands of workers’ compensation claims.

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