X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In a 5-0 decision, the state Supreme Court reversed a decision from Commonwealth Court denying a former Vietnam veteran suffering from post-traumatic stress disorder (PTSD) workers’ compensation benefits for harassment by a company foreman. Given the facts of this case, the Supreme Court’s decision was not surprising. In Rag (Cyprus) Emerald Resources v. WCAB (Hopton), decided on Jan. 11, the claimant was subjected to sexual harassment by his mine foreman on three separate occasions over an eight-day period. The claimant had a prior history of PTSD from service in Vietnam and Germany between 1964 and 1967. During this period, the claimant witnessed frequent homosexual activity in Germany and was approached by his commanding officer in Vietnam for sexual favors in return for “amenities.” The claimant’s exposure to sexual harassment in the Army, together with the horrors and stresses of war, caused the claimant to suffer flashbacks, which were subsequently diagnosed as PTSD. In 1975, the claimant started working in the mines, and performed his job as a miner without any significant problems until 1994. Apparently, between 1992 and 1994, the claimant’s background in the military became the knowledge of his mine foreman, who proceeded to make sexually charged remarks about the claimant in the presence of co-workers. After the third such incident over an eight-day period, the claimant suffered a relapse of his pre-existing PTSD, which resulted in disability. These incidents included remarks or suggestions by the mine foreman that the claimant perform fellatio or anal sex, with full knowledge that his actions caused the claimant severe distress. After taking evidence, the WCJ found that the mine foreman’s behavior went beyond joking and jovial antics common in the mines. To the contrary, the WCJ found and concluded that course of conduct was “clearly calculated to cause severe emotional distress upon the claimant,” which was not only beyond mere uncivil behavior, but was a violation of federal law prohibiting discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive as to alter the conditions of the victim’s employment, or create an abusive working environment. Accordingly, the WCJ awarded benefits based upon an aggravation of a pre-existing PTSD caused by an abnormal working condition. The appeal board affirmed the award of benefits, but the Commonwealth Court reversed. In a highly charged en banc decision, the Commonwealth Court held that the evidence failed to support a finding of abnormal working condition as the claimant had “an injured psyche and was predisposed to mental problems.” The Commonwealth Court held further that the evidence, while crude and unacceptable, was nevertheless normal in the “rough and tumble” mining industry. In support of their opinion, the Commonwealth Court relied upon a decision from the state Supreme Court in Philadelphia Newspapers Inc. v. WCAB (Guaracino), which held that isolated incidents of rude behavior, obscene language or incivility did not rise to the level of an abnormal working condition necessary for an award of workers’ compensation benefits. The Supreme Court disagreed with the assessment of the Commonwealth Court on several points including, but not limited to, the court’s disregard for the credibility determinations and relevant findings of the WCJ. The Supreme Court noted that the WCJ found and concluded that the behavior of the mine foreman went beyond normal horseplay in the mines. He found that the course of conduct on the part of a supervisory employee was clearly calculated to cause severe emotional distress, which not only violated federal civil rights laws, but the United Mine Worker’s contract, and arguably criminal harassment resulting in disciplinary action against the mine foreman. The Supreme Court also held that while they have applied an elevated standard of proof relating to the causal relationship of psychic injuries in workers’ compensation cases, their elevated standard of proof never barred otherwise deserving claimants from recovery due solely to an aggravation of their pre-existing condition. Accordingly, the Supreme Court urged an analysis of these injuries based upon the totality of circumstances. It opined that it was possible for a claimant with a pre-existing mental disorder to suffer an aggravation of a pre-existing condition based upon a single incident if that incident was “sufficiently severe and unusual in the context of the relevant working environment,” or relatively minor conduct resulting in the creation of an abnormal working condition if imposed repeatedly and “demonstrably unusual in that environment.” In applying their rule to the facts before them, the Supreme Court determined that the claimant was repeatedly subjected to sexually charged remarks by his immediate supervisor. The court observed that the supervisor’s remarks were viewed by the claimant’s coworkers as beyond normal everyday horseplay and joking, and in fact were uncommon even in the working environment of the mines. In short, the court agreed with the WCJ that the claimant was being persecuted by his immediate supervisor. There is precedent for this case, even within the Commonwealth Court. In Borough of Beaver v. WCAB (Rose), decided in 2002, the court held that a claimant met his burden of proof that he suffered a mental/mental injury as a result of an abnormal working condition based upon supervisory conduct calculated to inflect emotional distress. In Beaver, a police lieutenant was subjected to trouped-up charges of impropriety, ostracism and personal abuse when he investigated a lost firearm belonging to his police chief. In addition to facing disciplinary action brought on by fabricated evidence (which resulted in a severe reprimand to the department from the civil service commission) the police lieutenant was deprived of his work station, released from most of his important responsibilities, and hampered from performing those minimal tasks allocated to him. The court determined that the department’s course of conduct was tantamount to an abnormal working condition calculated to force the claimant from employment, which ultimately caused disability. In Zink v. WCAB (Graphic Packaging Inc.), decided in 2003, the Commonwealth Court held that a claimant suffering from PTSD was entitled to workers’ compensation benefits when his employer removed a reasonable accommodation from his job, thereby creating an aggravation of his illness. In Zink, the employer knew of the claimant’s pre-existing psychiatric condition when it offered reasonable accommodation in response to the claimant’s condition. The court, therefore, reasoned that the employer also knew, or should have known, that harm would befall the claimant if the accommodation were removed. Accordingly, the court held that an award of benefits for an aggravation of a pre-existing PTSD was warranted under the PAWCA. The elements for determining abnormal working conditions in these cases have a common denominator. They all involve calculated and inappropriate supervisory conduct intended to cause emotional distress. This should come as no surprise because managers and supervisors have overwhelming authority over the health and welfare of their work force; particularly, in an “at will in employment” jurisdiction like Pennsylvania. Consequently, supervisory conduct or the lack thereof toward their subordinates can quickly rise to the level of intimidation, harassment, reprisals or abuse resulting in a finding of abnormal working conditions. These cases also illustrate that there is a fine line between maintaining a disciplined and efficient workplace and engaging in inappropriate supervisory conduct. The Hopton case, therefore, is yet another reminder to employers that there must be a zero tolerance policy toward inappropriate and potentially discriminatory behavior by their supervisory employees. Our courts have long recognized civil remedies for the intentional infliction of emotional distress by supervisory staff. Such behavior has also been recognized within the workers’ compensation system. In Miller v. WCAB (New Wilmington Family Practice), the Commonwealth Court held that a supervisor’s trumped-up charges of embezzlement against a company bookkeeper in an attempt to cover up his own insurance and billing shortcomings, coupled with threats of prosecution and jail if the bookkeeper did not confess to the alleged wrongdoing, was deemed sufficiently extraordinary to rise to the level of an abnormal working condition. In Archer v. WCAB (General Motors), the court held that where a worker was singled out for criticism by a supervisor when others were not subjected to the same treatment, repeatedly harassed or mistreated by a supervisor to the point where the claimant developed a fear of going to work, and resulted in an emotional disability by the actual events of mistreatment or harassment, such supervisory conduct rose to the level of an abnormal working condition for the purpose of awarding benefits under the PAWCA. Likewise, in Borough of Beaver, false accusations intended to darken the reputation of the claimant combined with physical and verbal abuse resulting in mental injury and wrongful discharge is sufficient for a finding of an abnormal working condition. Other examples of supervisory misconduct include, but are not limited to, supervisory apathy toward discriminatory conduct or sexual harassment within the workplace, systematic persecution by co-workers with the complicity or support of supervisors, and, in the case of Hopton, repeated sexual solicitation by a supervisory employee within the working environment. These prohibitions do not hamper employers from maintaining a well disciplined and efficient working environment. To the contrary, maintaining a zero-tolerance policy on inappropriate supervisory conduct enhances the goodwill of the company, encourages recruitment of quality workers, and fosters productivity and efficiency within the labor force. In the final analysis, eliminating or severely discouraging inappropriate supervisory behavior is good business and sound public policy. Daniel V. DiLoretto practices in the workers’ compensation law practice area with Harvey Pennington in Philadelphia. He has developed extensive experience in the defense of workers’ compensation litigation, as well as related employment issues such as the Americans with Disabilities Act, and the Family and Medical Leave Act. He can be contacted at [email protected].

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.