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A coal miner who claimed that his foreman’s explicit comments about homosexuality aggravated his psychic disorder is not entitled to workers’ compensation benefits in part because such comments fall within the normal working conditions of that “rough and tumble” industry, a divided en banc panel of the Commonwealth Court ruled Tuesday. Calling what happened in the southwestern Pennsylvania mine “crude and unacceptable,” the court nevertheless concluded, 5-2, that the miner — previously diagnosed with post-traumatic stress disorder — was predisposed to mental problems and had experienced a “subjective reaction” to his co-worker’s remarks. Writing for the majority in RAG (Cyprus) Emerald Resources v. Workers’ Compensation Appeal Board, Judge Bernard L. McGinley said it is “‘unrealistic to expect that such behavior will not occur,’” particularly in the mining industry, quoting a 1996 Pennsylvania Supreme Court opinion. Under Pennsylvania case law, workers’ compensation claimants must prove that an alleged psychic injury was something more than a subjective reaction to normal working conditions, McGinley explained. In determining what constitutes “normal” working conditions, the court must consider the content, intensity, duration and frequency of the insults within the context of an employee’s particular work environment. The three episodes of harassing comments the miner described as having taken place over eight days out of his 16 years working for the mining company also did not establish abnormal working conditions, McGinley noted. Judge Rochelle S. Friedman dissented from the majority’s decision in a separate, 12-page opinion, deriding her colleagues for ignoring the workers’ compensation judge in the case who found that references in the mines to homosexual relations were not commonplace and went beyond the boundaries of everyday joking on the job. Judge Mary Hannah Leavitt, who joined Friedman’s dissent, said the majority’s holding would leave practitioners wondering whether the miner, Ronald A. Hopton, was denied benefits because his psychological injury was caused by his co-worker’s “words only” or because the verbal abuse didn’t occur on enough occasions. “If this court is going to decide every abnormal working conditions case on the facts, then it should defer to the factual findings of the WCJ and the board,” Leavitt wrote. “I agree with Judge Friedman that absent a clearly articulated legal principle, such as words only cannot cause a compensable injury, the majority is simply substituting its judgment for that of the fact-finder.” Friedman also contended that the majority should not have considered the miner’s pre-existing psychic injury or concluded that repetitive harassment by a superior over a week did not constitute an abnormal working condition. “With no indication that the supervisor would ever stop, how many times must the employee endure homosexual harassment before the harassment rises to the level of an abnormal working condition?” Friedman wrote. Deborah Beck, defense co-chairwoman of the workers’ compensation section of the Philadelphia Bar Association, said the RAG decision shocked her. “If what happened to the claimant in this case isn’t abnormal, what is?” said Beck, an associate at Sand & Saidel. Daniel V. DiLoretto, a workers’ compensation practitioner at Harvey Pennington Cabot Griffith & Renneisen, called the decision’s outcome “troubling” but noted that it underscores how difficult it is to win benefits for a psychiatric claim in Pennsylvania. “Unfortunately in Pennsylvania, the rule is that a claimant has a pretty high burden of proof in establishing an abnormal working condition,” said DiLoretto, who defends mostly employers in such cases. “The concern is that psychic injuries tend to be subjective in nature, and so the standard has to be high, the court has said.” Hopton was working at the Cyprus Emerald Mine in Waynesburg, Pa., in 1996 when he petitioned for workers’ compensation benefits, alleging that comments made by his foreman, Dominic Rossi, on three separate occasions in July 1994 inflamed his post-traumatic stress disorder and caused an anxiety attack, rage, depression and physical pain, according to the opinion. In his opinion, the workers’ compensation judge stated that by Rossi’s vulgar and suggestive language, Hopton “justifiably understood Rossi to be saying that he wanted to have anal sexual relations with him.” Hopton testified before the judge that the remarks evoked flashbacks of experiences he had while serving in Vietnam when a superior officer solicited sex from the men in his unit, according to the opinion. The WCJ found that Hopton’s incidents with Rossi were “causative factors” of his disability because — despite his mental disorder — Hopton had functioned fine until Rossi had “harassed, aggravated and stirred” him and caused emotional distress. The Workers’ Compensation Appeal Board affirmed the judge’s finding. McGinley, in reversing the board’s conclusion, noted that one of Hopton’s co-workers testified that crude humor with homosexual overtones was common in the mine and that supervisors also made such jokes. “Claimant even told his co-workers that he went out with a transvestite,” McGinley noted. But other co-workers had testified that such joking around was not common, Friedman noted. “To the extent that the record contains evidence to support the contrary finding of the majority, i.e., that homosexual harassment is normal in the mining industry, the WCJ obviously rejected such evidence,” Friedman wrote. “In workers’ compensation cases, the WCJ is the fact-finder, and, as such, the WCJ determines questions of credibility, resolves conflicts in the testimony and determines the weight to be given the evidence. In my view, the majority in this instance has exceeded its authority by usurping the WCJ’s fact-finding power.” Valerie Faeth, a Pittsburgh lawyer at Cohen & Grigsby who represented RAG, declined to comment Tuesday. James M. Jacobs Jr. of Yelovich & Flower in Somerset, Pa., who represented Hopton, said he had not yet reviewed the decision and, therefore, could not comment.

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