Proving work-related psychological injuries has always presented a unique challenge to the workers’ compensation practitioner, as the burden of demonstrating a disability caused by a psychological or mental condition is more involved than that stemming from a physical injury. As those in the practice are aware, psychological injuries fall into three distinct categories: physical/mental, mental/physical and mental/mental. The first category addresses psychological injuries caused by work-related physical injuries, such as a closed head trauma. Mental/physical psychiatric conditions are those that pertain to psychological stress that actually causes a physical injury, such as high blood pressure, irritable bowel syndrome or a heart attack. Finally, the mental/mental category deals with psychological injuries caused by nonphysical stimuli at work.
Even extremely experienced attorneys are leery of taking the mental/mental claim, as it has a much higher burden of proof than the other classifications. According to the 1990 Supreme Court case of Martin v. Ketchum, 568 A.2d 159 (Pa. 1990), and its increasingly defense-friendly progeny, injured workers claiming a mental/mental injury must prove “abnormal working conditions” in order to demonstrate that the work-related disability is not caused merely by “subjective, perceived or imagined” employment stressors. Since the imposition of the “abnormal working conditions” burden, the appellate courts have found very few fact patterns to rise to the level of an abnormal working condition.
In light of the foregoing background, attorneys who help psychologically impaired workers are truly to be commended in their efforts to provide those with mental/mental claims with access to justice. Occasionally, a case with a particularly favorable fact pattern can help even the playing field for future claims. One such case, Payes v. Workers’ Compensation Appeal Board (Commonwealth Pa. State Police), 2013 Pa. LEXIS 2588, was decided in October by the state’s Supreme Court in a manner very favorable to injured workers. The issue before the court was whether the Commonwealth Court erred in affirming the Workers’ Compensation Appeal Board’s reversal of a workers’ compensation judge’s decision granting a mental/mental claim involving a Pennsylvania state trooper who had struck and killed a woman suffering from mental illness, when she ran in front of his patrol car on the highway in a possible “suicide by cop” incident. In a surprising departure from the appellate courts’ trend in denying mental/mental claims, the Supreme Court found that the lower tribunals did so err.
Philip Payes was a Pennsylvania state trooper, who on Nov. 29, 2006, was driving his patrol car in the dark when a woman dressed all in black suddenly jumped in front of his vehicle. The officer struck the woman, who flipped over the patrol car and landed on the highway. Immediately after the accident, Payes pulled his car around into a lane of travel in order to attempt to help the woman and ensure oncoming traffic did not hit either him or the woman again. The officer went so far as to give mouth-to-mouth resuscitation to the woman, who was bleeding from the mouth. The camera mounted on the patrol car captured the incident on a recording, which was later admitted into evidence during the workers’ compensation proceeding, the opinion said.
The injured woman was ultimately pronounced dead at the scene and was later found to have been suffering from mental illness, the opinion said.
Payes remained out of work from Nov. 29, 2006, through Jan. 2, 2007, at which time he returned to office duties, as opposed to his regular position as a patrol officer. However, even this modified duty job proved to be too difficult for Payes to perform due to his recurring feelings of anxiousness and stress, the opinion said. The officer’s last day of work was Jan. 5, 2007.
Following an application for workers’ compensation benefits, Payes received two notices of workers’ compensation denial. The first acknowledged that an injury had taken place, but did not result in wage loss. The second NCD was termed “amended,” and stated that Payes had not been injured while in the scope of his employment. The NCD specifically rejected any claim for post-traumatic stress.
On Aug. 6, 2007, Payes filed a claim petition alleging that he suffered from post-traumatic stress disorder (PTSD) as a result of the incident, seeking total disability benefits on an ongoing basis. The petition was denied in its entirety by the employer.
In the course of litigation, Payes testified and also presented the testimony of a psychiatrist and a psychologist, both of whom opined that Payes suffered from PTSD, which was directly attributable to the November 2006 incident. In addition to a fact witness, the state police offered the testimony of a psychiatrist, who testified that Payes had fully recovered from any PTSD related to the incident, and was left only with a pre-existing psychiatric condition.
In granting the claim petition, the WCJ found that Payes had proven a mental injury stemming from a work-related mental stimulus. The WCJ specifically noted as a factual finding that although police officers are often expected to encounter violent situations in the normal course of their jobs, the particular work-related mental stimulus was not one normally encountered by or expected of state troopers. In particular, the WCJ found that an individual darting in front of a patrol vehicle and the officer’s attempts to save the woman’s life were not normal for a state trooper but instead were “extraordinary and unusual events.” Based on these factual findings, the WCJ concluded that Payes’ psychiatric injury was caused by an “abnormal working condition,” and thus granted the claim.
The state police appealed the decision to the WCAB, which reversed the WCJ’s decision, finding that it could not agree that the incident constituted an “abnormal working condition” given the nature of Payes’ “stressful and perilous profession.” The WCAB elaborated that encounters involving fatalities were a foreseeable part of the job and not an unheard-of occurrence. It is important to note that this rationale offered by the WCAB has been the basis for most of the denials of mental/mental claims, especially those brought by police officers.
Payes took the matter to the Commonwealth Court, which affirmed the WCAB’s decision, finding that as a matter of law, his injury did not result from an “abnormal working condition.” In an argument that would prove to be a straw man based on the Supreme Court’s analysis, the court noted that it is “not beyond the realm of possibility for an officer to have to take someone’s life.” Also, responding to the “emergency situation” was in keeping with any response the officer would have had to make to “any other accident scene.” Finally, the court stated that the events that occurred Nov. 29, 2006, “may have been unusual, but they were not so much more stressful and abnormal than the already highly stressful nature of [the claimant's] employment to render an award of benefits appropriate.” In essence, the court found the events to be “subjectively abnormal,” which is the downfall of most mental/mental claims.
The Supreme Court agreed to hear the case in May 2011. Payes argued that “the Commonwealth Court erred by ignoring the WCJ’s factual findings regarding the singular nature of the event that had triggered the onset of his disabling PTSD” and pointed out the fact that all the tribunals below had defined the event to be “unusual” yet not abnormal at the same time. Payes submitted that it was an error for the court to disregard the “total, singular nature” of the event as found by the WCJ, and to analyze the event as a “series of unrelated component parts.”
The Supreme Court asserted that the existence of a compensable mental or psychic injury is, for appellate courts, a mixed question of law and fact that is reviewable on appeal. While it is ultimately a question of law, psychic injury cases are highly fact-sensitive and must be considered in the context of the specific nature of the job in question. The court found that in such a fact-sensitive inquiry, deference to the fact-finding function of the WCJ is paramount.
In suggesting that the Commonwealth Court had “strayed beyond certain foundational precepts,” the Supreme Court undertook a brief review of the law. The court focused on the background leading up to Martin, which balanced the subjective nature of psychiatric claims by requiring “additional proof” for mental/mental claims in the nature of showing “abnormal working conditions.” The court also addressed the notion that mental injuries “must be considered in the context of specific employment.” The court noted that it previously held that there is no “bright-line test,” but that the specific work environment must be analyzed on a case-by-case basis.
In turning again to the case at hand, the court focused on the WCJ’s finding of fact No. 13, which stated:
“13. State troopers are not in the normal course of their duties exposed to the circumstances that occurred in this case; to wit, a mentally disturbed individual running in front of a trooper’s vehicle while he is operating the vehicle, for no apparent reason. Further, what occurred at the point of impact and immediately thereafter are not working conditions which normally occur for state troopers, [claimant's] attempted but failed resuscitation of the woman he killed on Interstate 81 while vehicular traffic is oncoming, waiting for assistance from other troopers.”
The court found that the Commonwealth Court was obligated to follow this factual finding, which by all accounts was based on the undisputed evidence of record and demonstrated a singular, extraordinary event occurring during Payes’ job duties. Since the Commonwealth Court did not set the finding of fact aside as arbitrary and capricious, it was obligated to draw the legal conclusion from that fact, that the injury stemmed from an abnormal working condition. The court suggested that the lower tribunals justified this by “reformulating” finding of fact No. 13 of their own accord into “unrelated component parts, where each part, standing on its own, might be safely determined to be a ‘normal’ working condition for a police officer.”
The point that must be taken from Payes is that the “abnormal working conditions” analysis does not end simply by determining that a claimant “generically belongs to a profession that involves certain levels or types of stress.” If this were the case, no factual analysis would be necessary. By definition, the appellate courts would be routinely substituting their own factual findings as to the nature of various jobs for those of the judge. When a claimant suffers from an actual and recognizable mental condition stemming from an unusually traumatic event at work, not normally endured in the particular profession, an award of compensation is appropriate. If the injury arises from a single incident, the analysis rests on whether that incident alone was abnormal, and not whether any series of ostensibly comparable events was abnormal. The Commonwealth Court in Payes was bound to accept the “well-supported facts found by the WCJ establishing the existence of an extraordinarily unusual and distressing single work-related event experienced by [the claimant], resulting in his disabling mental condition, where such single and comprehensive work-related event constituted an abnormal working condition as a matter of law.”
Yes, that is quite a mouthful, but the statement provides a roadmap that will allow claimant’s attorneys to represent more injured workers who present with mental/mental injuries. This is welcome news that may make psychological claims more commonplace.
Christian Petrucci is a solo practitioner and past co-chairman of the Philadelphia Bar Association’s workers’ compensation section. He concentrates his practice in workers’ compensation litigation and Social Security disability.