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The Pennsylvania Commonwealth Court en banc ruled yesterday that a workers’ compensation claimant’s burden of proving a psychic injury under the mental/ mental standard does not violate the Americans With Disabilities Act. In the case of first impression, the unanimous court also turned down Robert Berninger’s claim that his “dual burden” of proving he was subjected to abnormal working conditions and that those conditions caused his mental injury infringed on his constitutional right to equal protection. According to the 11-page opinion authored by Commonwealth Court Judge Bernard McGinley in Berninger v. Workers’ Compensation Appeal Board (East Hempfield Township), Berninger, an East Hempfield Township police officer, claimed psychological problems prevented him from performing his official duties as of Jan. 9, 1998. The township accommodated Berninger by assigning him to a steady shift rather than a rotating shift because he suffered from Attention Deficit Disorder. In his petition for benefits, Berninger alleged he could not tolerate working as a police officer any longer because he was “burned out,” depressed and suffering from ADD. The township denied the allegations but argued that even if they were true, the conditions were not caused by Berninger’s employment. A workers’ compensation judge dismissed Berninger’s petition, finding that he had not proved abnormal working conditions. The WCAB affirmed the WCJ on the same grounds. It did not address Berninger’s constitutional issues because they were beyond its scope. Before the Commonwealth Court, Berninger argued the mental/ mental burden of proof requires a mentally impaired person to meet a greater burden than one who is physically impaired. A physically impaired person has to show only that he or she was injured in the course and scope of employment, he argued. McGinley cited a 1995 case from Florida, Cramer v. Florida, that he said went against Berninger’s argument. The case involved a class action suit alleging sections of Florida’s workers’ compensation act violated the ADA. The court denied the plaintiffs’ claims, saying the ADA applies only to “discrimination against disabled persons compared to non-disabled persons.” McGinley said the Commonwealth Court held the same opinion. “Therefore, we find that the mental/ mental standard for establishing a psychic injury does not violate the ADA even though it is a different standard than that required to prove a physical injury,” he said. “The [Workers' Compensation] act distinguishes between types of disability not between disabled and non-disabled individuals. The ADA does not invalidate the dual burden imposed upon a mental/ mental claimant.” Berninger argued that his constitutional claim should be analyzed under the strict-scrutiny standard, which applies to legislative classifications that are “inherently suspect” because they burden a group of persons traditionally discriminated against. But McGinley said the rational-basis test was the correct one to apply because the classification Berninger proposed affected economic rights. The two elements in such a test are a legitimate governmental reason and a classification rationally related to the reason, he said. McGinley said there was a legitimate governmental interest at stake in the determination of whether a worker with an alleged psychic injury has actually suffered an injury. “The purpose of the act was to substitute a form of accident insurance in place of common law rights and liabilities for employees covered by its provisions,” McGinley said. “Therefore, there is a legitimate government interest in providing compensation for those employees covered under the act because an injured employee’s means to obtain compensation for his injuries is legislatively curtailed.” McGinley said the state also has an interest in making sure only legitimate claims are compensated because of the state’s role in the State Workers’ Insurance Fund, which provides insurance for employers under the WCA. The State Workers’ Insurance Board operates and administers the fund and established the amount of premiums for subscribers. The state treasurer is the fund’s custodian. Finally, the court found that the way the state classifies injuries bears a rational relationship to the government’s interest: “The dual burden classification is rationally related to this government interest because it requires a psychic injury claimant to firmly establish that not only has he suffered an injury but also that the injury was directly caused by an abnormal working condition rather than just the claimant’s own subjective reaction to normal working conditions,” McGinley wrote.

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