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When the Pennsylvania Supreme Court rendered its decision in Martin v. Ketchum Inc., the consensus was that proving mental/mental injuries in an employment-related setting was all but impossible. Martin stood for the proposition that because of the highly subjective nature of emotional and nonphysical stimuli, an employee had to establish that s/he was exposed to an abnormal working condition. While the court wisely never defined what was meant by an “abnormal working condition,” the consensus was that any condition that was lawfully associated with the nature of an employee’s employment was not “abnormal.” Accordingly, depending upon the claimant’s occupation, normally stressful situations, even highly stressful environments, would not meet the high standard of “abnormal working condition.” Consider the following: Changes in job duties that required increased responsibilities while causing stress were not sufficient to rise to the level of an abnormal working condition, as covered in Hershey Chocolate Co. v. WCAB (Lasher). Receiving an adverse performance evaluation leading to a demotion was not sufficient to rise to the level of an abnormal working condition, as found in Wilson v. WCAB (Alcoa). The retroactive application of performance standards resulting in a poor evaluation was not deemed an abnormal working condition, as covered in Pennsylvania Human Relations Comm. v. WCAB (Blecker). Fear of layoff is not an abnormal working condition, as dealt with in Gulick v. WCAB (Pepsi-Cola Operating Co.). Likewise, highly stressful situations faced by police and firemen do not rise to the level of abnormal working conditions because of a view that these professionals, by virtue of their training and temperament are merely exposed to the normal environment of their careers, as found in Farmery v. WCAB (City of Philadelphia). Isolated incidents of crude and abusive behavior between a claimant and supervisor is not an abnormal working condition, as dealt with in Philadelphia Newspapers Inc. v. WCAB (Guaracino). Just recently the Commonwealth Court held that a registered nurse working in a maximum-security prison subjected to numerous traumatic incidents involving inmates was ineligible for workers’ compensation benefits because while these incidents were horrific, the claimant was aware beforehand that assignment to the facility was unique, demanding and potentially dangerous; received training to prepare him for handling various situations that might occur in the prison environment, including three weeks of safety and defense tactics training; and was subjected to no different exposure then his coworkers. In each of the above examples, the incidents involved situations endemic to the claimant’s occupation. Likewise, such incidents that allegedly caused the claimant’s mental/mental injuries were often common situations that did not involve any abusive or criminal behavior by the employer or his managers. Even in situations where the claimant’s employer behaves in an idiosyncratic and bizarre manner, the environment was not deemed to be an abnormal working condition. On the other hand, employer conduct that rises to the level of criminal behavior, or extreme and outrageous conduct, has been consistently viewed as an abnormal working condition. Consider the following: Claimant wrongfully accused of a crime by a supervisor was deemed an abnormal working condition; particularly where the supervisor was attempting to use the claimant as a scapegoat for his own faults, as seen in Miller v. WCAB (New Wilmington Family Practice). Claimant subjected to trouped-up charges of impropriety, ostracism and personal abuse in retaliation for investigating a lost firearm by his supervisor, as found in Borough of Beaver v. WCAB (Rose). Verbal reprimands and actual harassment by a supervisor, as found in Archer v. WCAB (General Motors). Finally, repeated sexual harassment by a mine foreman toward a claimant once subjected to homosexual harassment in the Army, as dealt with in Rag (Cyprus) Emerald Resources L.P. v. WCAB (Hopton). In each of the above examples, the injury involved an employer’s intentional or negligent infection of emotional distress. Injuries caused by emotional distress are defined in the Restatement (Second) of Torts Section 46 as follows: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” In describing what constitutes extreme and outrageous behavior, the Restatement provides in part the following: “Liability is found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Unfortunately, this description is anything but satisfactory. In Kazatsky v. King David Memorial Park Inc., the plaintiffs brought a civil action against King David Memorial Park for the cemetery company’s failure to maintain the gravesites and grave-markers of their infant son and daughter. The plaintiffs argued that the cemetery company was guilty of fraudulent misrepresentation when it discontinued maintenance of the gravesites because of a nonpayment of fees. The trial court granted a nonsuit in favor of the defendants. The Superior Court affirmed, as did the Pennsylvania Supreme Court. The court held that the mere refusal to maintain the gravesites of the plaintiffs’ deceased children did not rise to the level of outrageous conduct. The court also held that in the past Pennsylvania placed a high burden on recovery from psychic injuries because of medical science’s difficulty in determining causation, the danger of fraudulent or exaggerated claims, and the perception that recognition of such a causes of action would precipitate a flood of litigation. The court likewise held that the definition of the Restatement (Second) of Torts, Section 46 so vague that determining what constitutes outrageous conduct would involve the “passion and prejudice of the moment.” Accordingly, the court concluded that the plaintiffs failed to meet their burden of proof. It should be noted that the Supreme Court’s holding in Kazatsky is very similar to its rationale in Martin. So why the change in the court’s direction regarding current workers’ compensation claims? In Kazatsky, the plaintiffs were denied an award for intentional infliction of emotional distress because of the vague burden of proof in determining outrageous conduct and the absence of evidence that the plaintiffs sought medical assistance. The distinction between Kazatsky and Hopton is that the claimant in Hopton not only had a prior history of post-traumatic stress disorder due to his experiences in the military, but presented medical evidence that the mine foreman’s conduct (which was viewed as beyond mere horseplay by the claimant’s co-workers) aggravated his pre-existing psychic injury. Moreover, there have been great advances in medical science since the Kazatsky decision was decided 20 years ago. PTSD is now recognized as a serious and disabling disease. It is well documented in the medical literature, and standardized in the DSM-IV. Additionally, unlike the mere trivialities outlined in the Restatement (Second) of Torts, the foreman’s conduct not only went beyond mere uncivil behavior, but was in violation of federal law prohibiting discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive as to alter the conditions of the victim’s employment and create an abusive work environment. Accordingly, where the court in Kazatsky was unable to determine what amounted to “outrageous” conduct in the Restatement (Second) of Torts, Section 46, the Federal Employment Laws have provided a clear definition of precisely such conduct. This brings me to my final point, I believe the elements for establishing mental/mental injuries continues to remain high, but supervisory misconduct, particularly such conduct that violates existing employment laws may result in greater psychic injury awards; particularly if there is sufficient medical evidence tying such negligent or criminal behavior as a cause of the claimant’s disability. 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].

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