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When the Pennsylvania Supreme Court rendered its decision in Martin v. Ketchum Inc., 568 A.2d 159 (Pa. 1990), the consensus was that proving mental/mental injuries in an employment-related setting was all but impossible. Martin v. Ketchum Inc. 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 which 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 an “abnormal working condition.” Consider the following: Changes in job duties which required increased responsibilities while causing stress were not sufficient to rise to the level of an abnormal working condition. Hershey Chocolate Co. v. WCAB (Lasher), 682 A.2d 1257 (Pa. 1996). Receiving an adverse performance evaluation leading to a demotion was not sufficient to rise to the level of an abnormal working condition. Wilson v. WCAB (Alcoa), 669 A.2d 338 (Pa. 1996). The retroactive application of performance standards resulting in a poor evaluation was not deemed an abnormal working condition. Pennsylvania Human Relations Comm. v. WCAB (Blecker), 683 A.2d 262 (Pa. 1996). Fear of layoff is not an abnormal working condition. Gulick v. WCAB (Pepsi-Cola Operating Co.) 711 A.2d 585 (Pa. Cmwlth. 1998). 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. Farmery v. WCAB (City of Philadelphia), 776 A.2d 349 (Pa. Cmwlth. 2001). Isolated incidents of crude and abusive behavior between a claimant and supervisor are not abnormal working conditions. Philadelphia Newspapers Inc. v. WCAB (Guaracino), 675 A.2d 1213 (Pa. 1996). An armed robbery of a route manager/driver in a low-income neighborhood was not an abnormal working condition as other route managers/drivers were also at risk for robbery and theft. Kennelty v. WCAB (Schwan’s Home Service, Inc.), 934 A.2d 692 (Pa. 2007). Recently, the Pennsylvania Supreme Court denied a claimant’s appeal to a Commonwealth Court decision that a registered nurse working in a maximum security prison subjected to numerous traumatic incidents involving inmates was not exposed to an abnormal working condition because while these incidents were horrific, the claimant: was aware beforehand that the assignment would be 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. Babich v. WCAB (CPA Dept of Corrections), 922 A.2d 57 (Pa. Cmwlth. 2007). In each of the above examples, the incidents involved situations endemic to the claimant’s occupation. Likewise, such incidents, which allegedly caused the claimant’s mental/mental injuries, were often common situations, which 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. D’Errico v. WCAB (City of Philadelphia), 735 A.2d 161 (Pa. Cmwlth. 1999). On the other hand, employer conduct, which 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. Miller v. WCAB (New Wilmington Family Practice), 724 A.2d 971 (Pa. Cmwlth. 1999). Claimant subjected to trumped-up charges of impropriety, ostracism and personal abuse in retaliation for investigating a lost firearm by his supervisor. Borough of Beaver v. WCAB (Rose) 810 A.2d 713 (Pa. Cmwlth. 2002). Verbal reprimands and actual harassment by a supervisor. Archer v. WCAB (General Motors), 587 A.2d 901 (Pa. Cmwlth. 1991). Finally, repeated sexual harassment by a mine foreman toward a claimant once subjected to homosexual harassment in the Army. Rag (Cyprus) Emerald Resources, L.P. v. WCAB (Hopton), 912 A.2d 1278 (Pa. 2007). In each of the above examples, the injury involved an employer’s intentional or negligent infliction of emotional distress. Injuries caused by emotional distress are defined in the Restatement (Second) of Torts Section 46 as: (1) 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 (Second) of Torts offers 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 odious, 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, and falls short of the standard set by our appellate courts. In Kazatsky v. King David Memorial Park Inc., 515 Pa. 183, 527 A.2d 988 (1987), the plaintiffs brought a civil action against King David Memorial Park Inc. 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 grave sites because of a non-payment 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 grave sites 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 causes of action would precipitate a flood of litigation. The court likewise held that the definition of the Restatement (Second) of Torts Section 46 was 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 decision in Kazatsky is similar to its opinion in Martin v. Ketchum Inc. Nevertheless, has there been a change in the direction, however subtle, of claims since the Hopton case, where the psychic injury occurred from an aggravation of a pre-existing Posttraumatic Stress Disorder? The answer is probably yes and no. 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 PTSD 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. Accordingly, the Supreme Court held that an aggravation of a pre-existing psychic injury by a psychic stimulus is compensable only where credible evidence demonstrates that such injury stems from an abnormal working condition. See: Kennelty, supra. 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 one example of precisely such conduct. Likewise, while practitioners representing emotionally disabled clients found the medical burden difficult to establish in Kazatsky, there have been great advances in medical science since the Kazatsky decision was decided 20 years ago. Today, PTSD is recognized as a serious and disabling disease, which is well documented in the medical literature, and standardized in the Diagnostic and Statistical Manual of Mental Disorders. Accordingly, a practitioner has more effective tools for establishing the existence of psychic injuries than in the past, allowing for a more thorough evaluation on whether a claimant’s working environment is lawful and endemic to his/her occupation. Although I believe the elements for establishing mental/mental injuries remain high, advances in medical science coupled with a thorough investigation into alleged supervisory misconduct, especially in such cases where there is evidence of violations to existing employment laws, may result in greater psychic injury claims and awards. 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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