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A Vietnam War veteran who cannot work rotating shifts due to post-traumatic stress disorder is entitled to workers’ compensation benefits, an en banc panel of the Commonwealth Court has ruled. The court, in Zink v. Workers’ Compensation Appeal Board (Graphic Packaging Inc.) concluded that, given “the context of his specific employment,” Graphic Packaging’s companywide switch to a rotating shift system substantiated George Zink’s claim that his mental condition was aggravated by abnormal working conditions. Judge Doris Smith-Ribner, who wrote the majority opinion, said the court disagreed with both the workers’ compensation judge and the Workers’ Compensation Appeal Board that the holding from Metropolitan Edison Co. v. Workmen’s Compensation Appeal Board is controlling in the present case. In Metropolitan Edison, the state Supreme Court in 1998 denied workers’ compensation to an employee required to work rotating shifts. During his service in Vietnam, Zink sustained injuries to his legs, back and right arm from a mortar explosion. He continues to receive treatment for those wounds. Additionally, Zink was subsequently diagnosed with PTSD as a result of his combat experiences. Because of his PTSD, Zink had difficulties sleeping at night, and he became accustomed to working nights and using soporifics to sleep during the day. He was allowed to work according to that pattern as a mechanical engineer at Graphic Packaging for 13 years, beginning in 1983. According to defense counsel Vincent Candiello of Morgan Lewis & Bockius’ Harrisburg office, the company was aware of his status as a veteran, as well as his accompanying medical history, when he was hired. In September 1995, Graphic Packaging instated a rotating shift schedule as a result of a collective bargaining agreement reached by the company and the United Paperworkers Union. According to Zink, he began experiencing increased physical and mental symptoms of his ailments as soon as he was required to work daytime hours. He obtained notes from his physician recommending that he be allowed to work the third shift only, but his superiors declined this request. On July 23, 1996, Zink informed his employers that he could no longer perform his work duties. On Aug. 7 of the same year, he filed a mental/physical claim petition seeking compensation benefits as of July 24 for aggravation of his pre-existing physical and mental injuries. Although the WCJ found the evidence of Zink’s condition credible — and evidence to the contrary offered by Graphic Packaging was less convincing — the WCJ still ruled that his loss was not compensable under the Workers’ Compensation Act, because abnormal working conditions were not established. The WCAB affirmed. Under state laws, in order for a claimant to receive benefits for a so-called mental/physical claim — a psychological injury with physical symptoms — the claimant must prove that he or she was subjected to abnormal working conditions. In Metropolitan Edison, the state Supreme Court ruled that an eight-hour work shift is a normal working condition, even if manifested in a shift rotation schedule. In deciding Zink’s appeal, the Commonwealth Court distinguished the facts of Metropolitan Edison from those of the case before it. In Metropolitan Edison, the court said, the claimant alleged that the rotating shift schedule was the cause of his physical problems. In this case, however, the claimant’s ailments were pre-existing and were merely exacerbated by the rotation system, the court said. The pre-existence of Zink’s condition, the panel held, coupled with Graphic Packaging’s knowledge of his condition at the time of hiring, resulted in the creation of abnormal working conditions for Zink as soon as the shift rotation schedule was introduced. “Because this case unquestionably is distinguishable from Metropolitan Edison,” Smith-Ribner wrote, “the court concludes that the WCJ and the [Workers' Compensation Appeal] Board erred in determining that Zink failed to prove a compensable injury under the [Workers' Compensation] Act. Moreover, to deny his claim would frustrate the humanitarian purposes of the act.” In her opinion, Smith-Ribner quoted the frustration of the WCJ who ruled against Zink in attempting to apply the Metropolitan Edison precedent to the case at hand: “The Metropolitan Edison holding creates a gross distortion under the facts of this case. Claimant is a Vietnam Veteran who served his country at great personal sacrifice. … Yet employer did not accommodate claimant in his hour of need.” In a dissenting opinion, Judge Mary Hannah Leavitt, joined by Judge Bonnie Brigance Leadbetter, reasoned that the precedents were quite clear in stating that reassignment to a certain shift, so long as it does not lengthen a worker’s normal workday, cannot result in compensable injury. “There is no air in the Metropolitan Edison holding for a contrary result here,” Leavitt wrote. In a telephone interview with The Legal, defense counsel Candiello said, “The conditions under which Mr. Zink was required to work were the same conditions required of every employee. These working conditions were the result of much discussion within the employees’ union and were agreed upon by its members. To have given Mr. Zink special treatment would have meant that another employee, perhaps even a more senior employee, would have had to make a sacrifice.” “I don’t think that this case will have much impact on future claims, because it’s a very fact-specific case,” said Daniel DiLoretto, an attorney with Harvey, Pennington, Cabot, Griffith & Renneisen and defense co-chairman of the Philadelphia Bar Association’s workers’ compensation section. “I think that Mr. Zink’s veteran status weighed heavily on the court, for one thing. But the ruling still addresses the fact that employers need to be sensitive to any pre-existing conditions of its employees. They really do proceed at their own peril if they hire an employee they know to have certain conditions — which was not the case in Metropolitan Edison — then make an accommodation to him for a number of years based on those conditions and then reverse that accommodation.” “This ruling adds a slight degree of certainty to a very uncertain aspect of the [Workers' Compensation] Act,” said Christian Petrucci, an attorney with the Law Offices of Thomas More Holland and claimants’ co-chairman for the workers’ compensation section of the Philadelphia Bar Association. “The general consensus among most claimants’ attorneys is to be very discerning when considering taking on a mental/mental or mental/physical claim. Because of this case, I, as a claimants’ practitioner, would be more inclined to take on a claim with a mental aspect if there was evidence of foreknowledge on the part of the employer prior to hiring. In recent years, it’s become very difficult for psychologically impaired employees to even find an attorney to represent them in their claims.” Counsel for Zink, Jerome Foley of Prince Law Offices in Bechtelsville, did not return a phone call seeking comment. There has been no immediate decision by the defense to file an appeal.

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