We have expressed our displeasure for how the Pennsylvania Workers’ Compensation Act treats mental/emotional injuries. As long as the cause of the injury is purely mental/emotional, any resulting disability is only compensable if the cause represents an “abnormal working condition.” The standard for this test varies according to the job in question; a police office, firefighter or other first responder would have a greater burden of proof than an accountant, chef or automobile mechanic, simply because their job tends to expose them to more shocking events.
This issue is dear in our hearts, since we have a case we have discussed on our blog previously, highlighting this ridiculous standard. For those who do not recall, we represent a liquor store clerk who was the victim of an armed robbery. Understandably, the clerk was then disabled by post-traumatic stress disorder. The Pennsylvania Liquor Control Board had the gall to deny the claim, saying that armed robbery at one of their stores was not “abnormal.” (It offends us as taxpayers, and citizens, that the agency openly embraces such incompetence by knowingly exposing their employees to danger, rather than make any effort at a solution).
The case was litigated, with both medical experts agreeing that the clerk had post-traumatic stress disorder, and that he was unable to return to that employment. In defense, the Pennsylvania Liquor Control Board (LCB) showed their training process, which included how to handle an armed robbery, the location and function of panic buttons, and the “open safe” key. All of the training materials, however, stated that the occurrence of armed robbery in a liquor store was “rare,” and that this was an “unlikely event.” Neither the clerk, nor any of the four witnesses presented by the LCB, was ever the victim of an armed robbery. Indeed, the manager of the store at which the clerk worked was not even aware of the procedure following a robbery. The store had panic buttons installed, but did not have any guards.
Based on the evidence presented, the Workers’ Compensation Judge (WCJ) granted the Claim Petition, finding armed robbery to be an abnormal working condition. While the training materials covered the possibility, all of the evidence showed the actual occurrence of armed robbery was rare, making it, by definition, “abnormal.”
The LCB appealed this decision to the Workers’ Compensation Appeal Board (WCAB), who reversed the decision. The WCAB concluded that because the training materials included the possibility of armed robbery, it was foreseeable. And, went the logic of the WCAB, “foreseeable” = “normal.” We then appealed the case to the Commonwealth Court of Pennsylvania, who recently, to our dismay, affirmed the decision of the WCAB.
That the WCJ is the ultimate Finder of Fact seemingly was disregarded by both the Court and the WCAB. The WCJ concluded, based on her review of the evidence, that armed robberies were infrequent and rare, making them “abnormal.” It is absurd that simply because an employer includes an unlikely event in its training program such an event cannot then be “abnormal.” It would appear, since schools and many offices have training and drills on many possible, but unlikely events, such as shootings, bombings and natural disasters, any emotional injuries should any of these events actually happen would not be compensable since they were “foreseeable.”
This is such a ridiculous standard that it is time to beg the Pennsylvania legislature to fix this matter, since the Courts have now taken to fact-finding to completely emasculate the notion of mental injuries in Pennsylvania. Is this what we are to expect from legislation which was initially designed to protect the injured worker?