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The state Supreme Court has asked the Commonwealth Court to reconsider a 2011 decision denying workers’ compensation benefits to a state liquor store employee who had been robbed at gunpoint.

The court issued a per curiam order in February, granting the plaintiff’s appeal in Kochanowicz v. Workers’ Compensation Appeal Board, vacating the intermediate court’s opinion, and remanding the case for further consideration. The order asked the Commonwealth Court to review the case in light of the high court’s 2013 holding in Payes v. Workers’ Compensation Appeal Board, in which the court ruled that a police officer could receive workers’ compensation for alleged post-traumatic stress disorder after he accidentally struck and killed a woman with his patrol car.

In its order, the court characterized Payes as “holding that, because psychic injury cases are highly fact-sensitive, a reviewing court must give deference to the fact-finding functions of the [workers' compensation judge] and limit review to determining whether WCJ’s findings of fact are supported by the evidence.”

Alfred J. Carlson, who represents Greg Kochanowicz, said the order establishes that the Payes decision created a new standard for reviewing psychic injury cases.

“The defense bar would say Payes was limited to the facts, but the vacation of the Commonwealth Court’s decision in Kochanowicz confirms that this is a new standard,” Carlson said. “It is very important in these mental injury cases going forward, and it is a good sign for individuals who sustain real post-traumatic stress disorder due to abnormal working events.”

According to Judge Dan Pellegrini’s majority opinion, Kochanowicz was working with a female co-worker on the night that the Morrisville, Pa., state store where he worked was robbed. After his co-worker called to him, Kochanowicz saw a masked man approaching him with a gun drawn, Pellegrini said. Doctors later diagnosed him with post-traumatic stress disorder stemming from the incident.

Pellegrini said that throughout the robbery, Kochanowicz had a gun pointed to the back of his head. At one point, according to Pellegrini, Kochanowicz testified that after he “sighed or expressed some sort of anxiety,” the gunman prodded him with his weapon, asking Kochanowicz if he was impatient or annoyed. Kochanowicz repeated an earlier directive, telling the perpetrator to take whatever he wanted and not to hurt anyone.

A workers’ compensation judge granted Kochanowicz benefits and the Workers’ Compensation Appeal Board affirmed.

The Commonwealth Court, however, held that a robbery may be a normal, anticipated condition of working in a state liquor store and denied the benefits.

The majority held that because Kochanowicz had received training and information about workplace violence, and other liquor stores in the vicinity had been robbed recently, there was enough evidence to find that a robbery is a normal condition of the job.

“Unfortunately, given the frequency [the Liquor Control Board's] stores had been robbed and the proximity of the recent incidents, robberies of liquor stores are a normal condition of retail liquor store employment in today’s society, and the board erred in holding otherwise,” Pellegrini said.

Pellegrini was joined by President Judge Bonnie Brigance Leadbetter and Judges Robert Simpson and Mary Hannah Leavitt.

Pellegrini noted the Commonwealth Court has “repeatedly held” that if an employer trains its employees on a certain working condition, that condition could then be anticipated at work.

However, in an 11-page dissent, Judge Renee Cohn Jubelirer said the majority overstepped its scope of review by not limiting it to the WCJ’s factual findings.

Jubelirer said the majority focused on evidence (not all of which was credited by the WCJ), such as the LCB’s training materials, pamphlets and other statistics on liquor store robberies in Southeastern Pennsylvania.

Jubelirer, joined by Judges Johnny Butler and Bernard L. McGinley, also said the majority erred by equating “foreseeability” with “normalcy.”

“[The] fact that nearly anything is foreseeable, including a robbery, because robberies do occur, does not make that event ‘normal,’” Jubelirer said. Jubelirer agreed with the majority that there exists no bright-line test for determining what is normal or not, but added she was “unwilling to accept the premise that simply because robberies are known to occur, they are a ‘normal’ condition of the workplace.”

The state Supreme Court’s opinions in Payes dealt with similar concerns.

Although the high court split only 5-1 in deciding that former Pennsylvania State Police trooper Philip Payes was entitled to workers’ compensation benefits, the court was more divided over the standard of review for determining whether an abnormal working condition existed that could lead to a compensable mental injury.

In his majority opinion, Justice Seamus P. McCaffery characterized the court’s standard of review as “a mixed question of law and fact.” However, Justice J. Michael Eakin said the question of whether factual findings established that an abnormal working condition was present is a question of law only.

Justices Thomas G. Saylor, Max Baer and Debra M. Todd joined McCaffery. Chief Justice Ronald D. Castille sided with Eakin’s characterization of the standard of review.

In Kochanowicz, the Commonwealth Court is expected either to decide the case based on the information already provided, request that the parties provide additional briefs or possibly call for reargument of the case.

Carlson said he is hopeful that due to the facts of the case and the new standard mandating the intermediate court give deference to the trial court and appeal board, the Commonwealth Court will find for his client.

“Based on the facts of the case, I think that the trial court and the Workers’ Compensation Appeal Board made the correct decision, and we’re hopeful on remand that the Commonwealth Court will agree,” Carlson said.

Calls seeking comment were not returned by the press offices of the WCAB or the LCB.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI. •