Clarity About Physical/Mental and Mental/Mental Injuries in PA Workers’ Compensation

Just recently, we discussed a case which addressed mental/mental work injuries in Pennsylvania.  This type of injury occurs when a mental stimulus creates a psychic injury.  As we reviewed in that posting, these mental/mental injuries have a higher burden in the PA workers’ compensation system – to be compensable, such injuries must result from “abnormal working conditions.”

But, mental/mental is only one of three types of mental injuries we see in PA workers’ comp.  We also see physical/mental (where a physical cause leads to a mental injury) and mental/physical (where a mental stimulus causes a physical reaction).

Recently, the Commonwealth Court of PA dealt with both the physical/mental and mental/mental situations in the matter of Russo v. Upper Darby Township (Workers’ Compensation Appeal Board).

The injured worker in this case was a police officer.  While on the lookout for a wanted suspect, the officer became engaged in a life and death struggle with the perpetrator.  The injured worker tried to taser the suspect, but the suspect was undeterred.  Soon, the injured worker was being choked and the suspect was reaching for the officer’s gun.  The officer managed to turn the weapon and shoot the suspect.  Though the injured worker attempted to save the suspect, the perpetrator ultimately died from the gunshot wound.

The injured worker was taken to the hospital, where he complained of soreness in his neck, shoulder and wrist.  Once he was evaluated, and everything appeared intact, he was discharged.  There was no further medical treatment for those injuries.

After returning to his job, the injured worker began to have difficulty coping, and was placed out of work.  This was eventually diagnosed as post-traumatic stress disorder (PTSD) from the events of that day.  A Petition to Review was filed by the injured worker, seeking to add the PTSD (and an elbow injury, which is not directly relevant; a Claim Petition was also filed, and is also not directly relevant).  The injured worker offered the testimony of his treating orthopedic surgeon, his treating psychologist and himself.  The township offered fact testimony from a supervisor and testimony from an orthopedic surgeon who performed an “Independent Medical Examination” (which, as we have previously noted, is anything but “independent”).  The township did not present any medical evidence on the PTSD.

While the defense witness testified, the Workers’ Compensation Judge (WCJ) queried the injured worker’s counsel whether he was trying to establish that a police office shooting his weapon on duty is an “abnormal working condition.”  On the record, the WCJ expressed reservation that such an event was “abnormal,” based on her own experience.

After reviewing the evidence, the WCJ denied the Petition for Review.  The WCJ found the orthopedic doctor offered by the insurance carrier more credible than the treating orthopedic physician.  Though no contrary psychological opinion was offered, the WCJ found the treating psychologist’s opinion not credible.  Since there was no treatment required for the accepted physical injury, the WCJ found that the threshold of a physical/mental claim was not met.  Based on the testimony of the defense witness, that it is not uncommon for a police office to shoot and kill a suspect in the line for duty, the threshold for mental/mental injury was also not met.  On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed in a 4-2 decision.

However, upon further appeal to the Commonwealth Court of Pennsylvania, the case was reversed and remanded back to the WCJ for an award of benefits for the PTSD.  Initially, the Court agreed with the rejection of the physical/mental injury.  At the hospital on the day of the incident, the injured worker complained only of soreness, and was discharged without treatment.  There was no “medical condition” diagnosed from the incident.  Said the Court, “Claimant’s pain and soreness complaints . . . were secondary to a mentally injuring event and were themselves not serious enough to require medical treatment.”

The Court then turned to the mental/mental injury, and found the WCJ approached the matter incorrectly.  While the WCJ focused on her own experiences, rather than the evidentiary record, she failed to consider “the full convergence of events.”  Importantly, “abnormal” is not the same as “unique.”  The mere fact a police officer could be expected to discharge his or her weapon in the line of duty does not, in and of itself, make the events of that day normal.  Not only was the weapon discharged, but also, the injured worker was choked, was in a life-or-death grappling with the suspect, attempted to render aid to the suspect and then have the suspect die.  This constellation of events was not “normal,” considering the testimony of the defense witness (indeed, the defense witness makes even the discharging of the weapon appear abnormal, as he admitted that he had never done so in 27 years on the job).   The Court noted that this chain of events is not one a police officer anticipates his or her day will include.

This, however, did not end the analysis.  Even if the mental/mental threshold was met, the injured worker still had the burden to prove the mental injury itself, and that it caused him to be disabled.  For this to be successful, the testimony of his treating psychologist must be found credible, something the WCJ failed to do.  Here, also, though the Court found the WCJ erred.

In an unusually blunt manner, the Court termed the WCJ’s rejection of the injured worker’s medical evidence “nonsensical.”  In reviewing each of the three bases upon which the WCJ relied, the Court noted how each step was in error.  Based on this, the Court determined that the WCJ committed reversible error in rejecting the testimony of the treating psychologist.  The case was reversed and “remanded” (sent back to the WCJ, for an entry of the award of benefits).

Note, too, that there were concurring and dissenting opinions, each expressing support for the elimination of the “abnormal working conditions” standard entirely.  And, on this, we certainly agree.  This standard was created by the courts (it appears nowhere in the Pennsylvania Workers’ Compensation Act), and draws an untenable distinction between mental and physical injuries, reflecting the uneducated biases from the past.