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Employees who claim they were terrorized by their superiors have gained some relief in the Commonwealth Court of Pennsylvania, which ruled in two cases released Wednesday that benefits were warranted for a mental injury because such incidents are abnormal working conditions. To prove a mental injury, a claimant must show that such an injury is more than just a subjective reaction to normal working conditions. Their burden requires evidence that “actual extraordinary events” that can be pinpointed to a certain time occurring at work causing the trauma or that the injury was caused by a longer period of abnormal working conditions. This week, two claimants convinced the court they had suffered the requisite harm. One was screamed at by her supervisor and threatened so severely that the incident aggravated a pre-existing mental condition. The other was wrongly accused of falsifying time-card information and then fired. Both claimants cited Philadelphia Newspapers Inc. v. WCAB (Guaracino), a 1996 case in which the state Supreme Court held that a single incident during which a supervisor used vulgar language and criticized the claimant’s performance was not enough to prove a mental injury. The Philadelphia Newspapers court said that the workplace is “not a shelter from rude behavior, obscene language, incivility or stress.” But in one of the Commonwealth Court’s decisions, McKinney v. WCAB (Decision Data), Judge Charles P. Mirarchi Jr. said Philadelphia Newspapers should not be strictly construed to never allow a claimant benefits when only one incident of abnormal treatment at work is alleged. “ Philadelphia Newspapers is not to be read as establishing a rule that an employer is permitted ‘one free outburst’ prior to its becoming liable for a worker’s psychic injury. The character of the event must be taken into account,” Mirarchi said. “As the Supreme Court has instructed, it must be remembered that working conditions, in order to determine whether they are abnormal, must be considered in the context of the specific employment.” The decisions are especially interesting considering that only last July, a three-judge panel led by Judge Doris A. Smith ruled in D’Errico v. WCAB that a traffic court judge’s assistant was not subjected to abnormal working conditions when the judge repeatedly threw things and cursed at her and taped her phone conversation. The D’Errico court said one should expect to have to deal with difficult co-workers. PRE-EXISTING CONDITION The claimant in McKinney, Dorothy McKinney, worked as a dispatch operator for Decision Data. The incident that she alleged caused her mental injury happened on Jan. 16, 1992, when a floor supervisor told her to remove posters of John F. Kennedy and Martin Luther King Jr. that were hanging in her cubicle. That Monday, McKinney’s supervisor called her into his office, where he locked the door and screamed at her. The supervisor, Jack Dinan, was apparently upset that McKinney complained to another manager about having to take down the posters. The other manager had informed Dinan that it was not against company policy to hang such posters in cubicles. Dinan allegedly called McKinney a “bigot bitch” and threw pencils, an ashtray and other items around the room. He also allegedly threatened her not to tell anyone about the incident. Another co-worker was also in the office but was too afraid of Dinan’s temper to speak, Mirarchi said. McKinney continued to work for the rest of that day and the next few without incident. However, at a pre-scheduled regular appointment with her family doctor on Jan. 22, McKinney allegedly broke down, experiencing chest pains, and requested help. The doctor called McKinney out of work the next day and reported the incident to Decision Data’s human resources division the following week. He referred McKinney to a facility where she treated with psychologists and psychiatrists from the end of January until June. McKinney has not been able to return to work since the incident with Dinan because of “ongoing psychological problems, including suicidal thoughts and a fear of going out in public,” Mirarchi said. Decision Data did pay McKinney benefits from a 100 percent employer-sponsored program from January 1992 until June 1994. A psychiatrist, Edward Urban, from the facility in which McKinney was treated testified McKinney had prior bouts of depression approximately 10 years earlier, which lasted several months and then resolved. The last time Urban treated McKinney he diagnosed her as suffering from “major depression, single episode, severe, with intermittent psychotic features.” He testified her condition was causally related to her encounter with Dinan, which aggravated a pre-existing mental condition and then worsened. Urban said the injury prevented McKinney from performing her work duties. A defense expert said McKinney had fully recovered from any psychiatric injury but admitted that the work incident could have aggravated a pre-existing condition. A Workers’ Compensation Judge found that McKinney was totally disabled as a result of the work injury that aggravated her pre-existing mental condition. The board reversed under Philadelphia Newspapers, stating that a single episode of criticism from a supervisor is not enough to prove a mental injury. On appeal, McKinney argued her injury did not arise from one episode of criticism, but if it did, it was one so dramatic as to constitute abnormal working conditions. Decision Data claimed the incident was isolated and that McKinney’s relationship with Dinan was “fine” after it was over. Mirarchi said what happened to McKinney was more than an incident of “criticism.” “In this case, aside from verbal criticism, abuse and derogatory epithets, [McKinney], a female employee, was identified as the object of the supervisor’s rage in the presence of another employee, was present as the supervisor hurled objects about the room in his rage, including an ashtray, and received threats from the supervisor should [McKinney] divulge what had transpired,” he wrote. “Moreover, the object of the supervisor’s rage and criticism level against [McKinney] had nothing to do with [McKinney's] work performance.” Although, as the Supreme Court said in Philadelphia Newspapers, the workplace is not a haven from incivility, Mirarchi said there are limits to what employees should have to endure. “We may all expect to be accosted in society by uncivil, even angry behavior, over matters not of our own creating and foreign to our general business. We do not, however, expect to be confined by a superior who vents his anger with physical threats (the hurling of objects) and other unspecified threats should the superior’s behavior be reported to others at work or even one’s spouse,” Mirarchi said. “This is not a normal condition in our society, nor is it one in the workplace.” TIME RECORDS In the other case, also written by Mirarchi, US Airways v. WCAB (Long), Bonnie Long, a US Airways office clerk at the Philadelphia International Airport, claimed she was totally disabled as a result of an incident that occurred on Nov. 23, 1995, Thanksgiving Day. On that day, about half of the mechanics working the midnight shift were given permission to leave early because it was a holiday. The lead mechanic collected their ID cards, which were also used as time cards, and left them on Long’s desk so she could input the information into the computer. Early that morning Kris Mikkelborg, the day-shift foreman, overheard Long speaking with Walt Danovich, the lead mechanic. During the conversation, Danovich said she was going to leave as soon as he clocked the other mechanics out. Mikkelborg did not know the midnight-shift supervisors had allowed the mechanics to leave early and suspected that Long was going to falsify their time records. While Long was taking care of the cards, Mikkelborg allegedly came into her office, screaming and cursing at her. Long testified “she felt at that time that Mikkelborg was about to attack her.” Mikkelborg later sat Long down in the training room between himself and Jim Forbes, the station manager, where she was grilled about how she received the ID cards. During the exchange, Long claimed Mikkelborg screamed and yelled at her, pushed her and physically touched her. When she was permitted to leave, Long drove directly to the home of her immediate supervisor, Judy Combs, to tell her what happened. Combs called the manager of the maintenance department who said Long could go home and come back to work the next day. The next day when Long appeared at work, Mikkelborg again screamed at her and told her she would be escorted out by security if she did not leave. Long met with the station manager and was suspended pending a further investigation. On Nov. 29, Long was terminated. Her termination letter stated the reasons as unacceptable behavior and leaving work without permission on Thanksgiving Day. Long claimed that during after those incidents, she could not stop crying and became ill. Her family doctor sedated her and sent her to psychiatrist Roy G. Fitzgerald and psychologist Robert R. Radomile. Fitzgerald testified Long was suffering from major depression caused by the work incidents, culminating with thoughts of suicide and that she could not return to work. Radomile testified to the existence of similar problems. Mikkelborg and Forbes denied yelling at or physically touching Long at any time. Thomas Hay, the station manager said he fired Long because he suspected she was falsifying time records, in contradiction of the reasons given in the termination letter. However, Hay also testified he later learned the accusations were false. A psychiatrist testifying for the defense agreed Long could not return to work for US Air but opined she did not suffer from major depression. A WCJ granted Long’s petition, finding that she suffered a psychological injury as the result of abnormal working conditions. The WCAB affirmed. Mirarchi said the facts of Long’s case distinguished it from Philadelphia Newspapers, most importantly because she was falsely accused of wrongdoing. “Thus, the facts in this matter establish more than a single isolated incident of mere ‘insensitive behavior’ involved in Philadelphia Newspapers,” he said. “Rather, the facts in this matter establish that [Long] experienced the trauma as a result of the extraordinary events at work, which caused her disabling psychological injury.” Mirarchi said Long’s case was more like Miller v. WCAB (New Wilmington Family Practice), in which an employee became so stressed over false allegations that she stole money from her employer, she was eventually admitted to a psychiatric ward. The accusation against the employee actually stemmed from her boss’ sloppy billing practices. However, her boss kept quiet about his mistakes and let her take the heat. The Commonwealth Court ruled she was entitled to benefits. “As in Miller, [US Air's] supervisory employee falsely accused [Long] for committing a wrongful act, intimidated her, threatened to terminate her employment, did terminate her employment despite their knowledge that the accusation was false, and then attempted to justify their action, again falsely accusing her of leaving work without permission,” he said. “In addition, Mikkelborg not only used profanities at [Long] but also physically abused her by pushing and touching her during the interrogation.”

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