February 23, 2007

Abnormal
Working
Conditions

The Pennsylvania Supreme Court’s recent ruling in Rag (Cyprus) Emerald Resource v. WCAB (Hopton) illustrates the always-present tension that claims involving “abnormal working conditions” continue to generate at every level of fact-finding, from initial claim presentation through exhaustion of appellate review.

“Abnormal working conditions” is a term of art that has evolved and ripened under the Supreme Court’s landmark decision in Martin v. Ketchum, Inc. 568 A. 2d 159 (Pa. 1990). That ruling sought to establish an objective work environment-specific analysis for the compensability of mental/mental, or psychological injuries. It further attempted to negate the compensability of subjective reactions to normal working conditions as being legally insufficient to prove the occurrence of a work-related mental/mental injury.

Although Martin sought to establish a bright line objective standard of proof for the analysis of these types of claims, it has instead become a claim-specific shifting standard. Fact-finding judges must necessarily engage in making credibility determinations, both in terms of the Claimant seeking compensation as well as any employer witness presented to disprove “abnormal working conditions,” necessarily blurring the line between what is true for all, and what is true for only one in any specific work environment.

Into this deep vein, the Rag Emerald Court overturned and reversed the Commonwealth Court, which had held, in reversing the Appeal Board and the Worker’s Compensation Judge, that the Claimant had failed to prove that his pre-existing post traumatic stress disorder, originally related to military service, had not been aggravated by “abnormal working conditions” resulting from the Claimant’s supervisor making sexually explicit and homosexual comments to the Claimant.

Claimant alleged disability due to the aggravation of pre-existing post traumatic stress disorder, originally manifested as a result of military service.

With this seemingly evidentiary-intensive burden of proof applicable to a mental/mental worker’s compensation claim, the Supreme Court granted allocatur to review the Commonwealth Court’s reversal of compensation benefits awarded to a Claimant who successfully persuaded both the Worker’s Compensation Judge and the Appeal Board that he had presented substantial competent fact and medical evidence establishing that he had been exposed to “abnormal working conditions,” while working as a mine worker.

Specifically, Claimant alleged disability due to the aggravation of pre-existing post traumatic stress disorder, originally manifested as a result of military service during which the Claimant had been exposed to superior officers suggesting homosexual dalliances that unnerved the Claimant, in combination with the overlap of witnessing military colleagues maimed and killed in combat in Vietnam.

The Claimant contended, and the judge agreed, that the supervisor’s explicit sexual homosexual advances constituted “abnormal working conditions,” and that, coupled with the Claimant’s medical evidence, Claimant established a compensable “mental/mental” injury.

Years later the Claimant was confronted by his male mine supervisor, who, on three separate occasions, made explicit sexually offensive remarks of a homosexual orientation, notwithstanding the supervisor denying any homosexual orientation. The Claimant contended, and the judge agreed, that the supervisor’s explicit sexual homosexual advances constituted “abnormal working conditions,” and that, coupled with the Claimant’s medical evidence, Claimant established a compensable “mental/mental” injury. Claimant presented a psychiatrist who testified that the supervisor’s sexually offensive remarks triggered an aggravation of the Claimant’s pre-existing post traumatic stress disorder.

The Claimant’s award of compensation was affirmed by the Appeal Board, but was then reversed by the Commonwealth Court, which held that the Claimant’s post traumatic stress disorder was pre-existing.

Commonwealth Court found that the “Claimant had an injured psyche and was predisposed to mental problems!” The Court also concluded that the supervisor’s overtures were nevertheless “normal” in the mining industry,

The Commonwealth Court found that “the evidence fails to support a finding of abnormal working conditions.” In reaching that legal conclusion, the Commonwealth Court found that the “Claimant had an injured psyche and was predisposed to mental problems!” The Court also concluded that the supervisor’s “crude and unacceptable” homosexual overtures were nevertheless “normal” in the mining industry, known to be an industry recognized for “rough and tumble” behavior in the work place.

The rationale set forth by the Commonwealth Court was that the supervisor’s comments were not frequent enough to have constituted “abnormal working conditions,” as the comments occurred only three times over an eight-day period during the Claimant’s sixteen-year mining career. With those timelines, the Commonwealth Court concluded that the supervisor’s comments were obviously unacceptable, but that the same could not objectively be characterized as having sufficiently altered the work place to have created “abnormal working conditions”.

The Supreme Court found that the Commonwealth Court disregarded credibility determinations rendered by the WCJ, and failed to recognize that the supervisor’s comments bordered on criminal harassment, noting that the employer had disciplined the supervisor.

Appealing to the Supreme Court, Claimant successfully argued that the Commonwealth Court had abused its discretion, by usurping the fact-finding function of the WCJ, with the Supreme Court applying its prior ruling under Martin v. Ketchum, Inc., 568 A. 2d 159 (Pa. 1990). The Supreme Court found that the Commonwealth Court overstepped the bounds of appellate review, by disregarding credibility determinations rendered by the Worker’s Compensation Judge, and by failing to have recognized that the supervisor’s comments bordered on criminal harassment, noting that the employer had disciplined the supervisor, likewise suggesting that the employer, through its own internal disciplinary process, had not characterized the supervisor’s actions as being “normal,” notwithstanding the employer defending the Claim Petition on grounds that the Claimant had not sustained a compensable injury in the course and scope of employment.

Objectifying the already intense highly case-specific incident-dependent analysis required to dissect the compensability of mental/mental injury claims, the Rag Emerald ruling is clearly illustrative of the folly of human nature, with its factual stew of a heterosexual male supervisor harassing, on at least three separate occasions, the Claimant, by making lewd and sexually repulsive comments of a graphic homosexual nature to the Claimant, who, having been exposed to prior similar conduct in the military, was traumatized by flashbacks linking past and present into a Shyamalanian milieu (the Sixth Sense) of mental anguish.

In reversing the Commonwealth Court, the Supreme Court first addressed the standard of appellate review, noting that findings of fact cannot be overturned, unless the findings are not supported by substantial competent evidence, or the findings are arbitrary or capricious. Holding that a two-prong analysis is required for mental/mental injury claims, the Supreme Court first determined whether the Commonwealth Court had abused its discretion by substituting its factual findings for those of the WCJ, and secondly, whether the WCJ’s findings supported the legal conclusion that the Claimant’s injury had resulted from “abnormal working conditions”.

The Supreme Court reiterated the necessity of a mental/mental Claimant being able to prove not only the occurrence of a mental/mental injury, but that the mental/mental injury is not merely a subjective reaction to normal working conditions.

Noting the inherent difficulty in establishing causation in a mental/mental injury, given their highly subjective trigger points, the Supreme Court reiterated the necessity, for compensability purposes, of a mental/mental Claimant being able to prove not only the occurrence of a mental/mental injury, but that the mental/mental injury is not merely a subjective reaction to normal working conditions, and is, instead, an injury directly linked to verifiable “abnormal working conditions.” As no bright line test or generalized standard exists, permitting a particular set of circumstances or a specific work environment to have satisfied the criteria of being “abnormal working conditions,” every job bears the individual and job-specific taint of normalcy, in most cases, the breach of which can only be proven through corroboration.

Implicit tension from like claims, is, and will be, the conflict between employers being unable to provide emotionally sanitized work environments, as work places are a microcosm of our society and culture, and the inherent difficulty in policing rude and bad behavior involving obscene language, incivility, and unnecessary stress.

Practical Tips

• Avoid hiring sensitive, thin-skinned employees.
• Avoid mine work.
• Avoid any sexual references, of any kind or nature.
• Hire normal people, for normal work, in a normal place.
• Pray.

Actually, Rag Emerald illustrates nothing more than the bizarre converse of bad people doing bad things equals bad news. It once again proves that the predicate acts for “abnormal working conditions,” in most mental/mental cases are just that, things that are abnormal, unexpected, unforeseeable, and of a character that bears no reasonable relationship to the person or job in question.

As mental/mental injury law has evolved, the claims giving rise to questions of compensability often times involve situations with deteriorating interpersonal relationships that but for one good swing of the fist would otherwise not be compensable by application of the “personal animus” exception. This begs the question whether such a defense, obliviously dependent upon extraordinary personal animus, could be asserted, essentially arguing the inciting offense was personal, removing it from the course and scope of employment.

Probably the best advice that can ever be given, in any employment or work place context, is to hire, train, and promote good employees, to advocate for, and be there for all employees, and to not tolerate any conduct or behavior that is risk-tolerant.

Questions

Questions concerning this decision and like issues involving workers’ compensation claims or matters, can be directed to our workers’ compensation department attorneys.

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