CLAIM: DEFINITION OF INJURY

Transcription

1 CHAPTER 5 CLAIM: DEFINITION OF INJURY I. INJURY (BEGINNING MAY 1, 1972) A. General Principles 1. [5.1] Act 61 of 1972, effective May 1, 1972, eliminated the requirement of an accident under section 301(a), 77 P.S. 431, and substituted the term injury in that section and throughout the entire Act. 2. [5.2] The definition of injury in section 301(c)(1), 77 P.S. 411(1), was changed from... violence to the physical structure of the body... to... an injury to an employee, regardless of his previous physical condition, arising in the course of his employment and related thereto... and includes aggravation, reactivation, acceleration, or death resulting from the injury. 3. [5.3] Section 301(c)(2), 77 P.S. 411(2), was added to the Act by Act 223 of 1972, and included within the definition of injury the occupational diseases defined in section 108, 77 P.S. 27.1, effective with exposures after June 30, The compensability of occupational diseases under the 1939 O.D. Act continues unchanged. For a discussion of the occupational disease aspects of prior and present law, see chapter 9, Occupational Disease Claims. 4. [5.4] The Commonwealth Court has rather consistently declined to define injury in more detail and has instead concentrated on a consideration of the question of whether the injury is related to the employment. In WCAB (Squillacioti) v. Bernard S. Pincus Co., 357 A.2d 707 (Pa.Cmwlth. 1976), aff d, 388 A.2d 659 (Pa. 1978), the court declined...to delineate an ecumenical definition of injury. The Pennsylvania Supreme Court allowed an appeal in Squillacioti and finally laid to rest any effort to incorporate pre May 1, 1972, accident concepts into the definition of post May 1, 1972, injury. The Supreme Court also concluded that no technical definition of injury was warranted and that a standard dictionary or common speech definition of injury was adequate for workers compensation purposes. For an extensive review of the definition of injury and disease under section 301(c)(1), 77 P.S. 411(l), see Pawlosky v. WCAB (Latrobe Brewing Co.), 525 A.2d 1204 (Pa. 1987). a. [5.5] Persons exposed to a serious risk of contracting a disease that is known to be highly contagious or infectious and potentially deadly have been injured for purposes of receiving compensation. Jackson Twp. Volunteer Fire Co. v. WCAB (Wallet), 57

2 [5.6] Chapter 5: Claim: Definition of Injury 594 A.2d 826 (Pa.Cmwlth. 1991) (ambulance worker exposed to AIDS and hepatitis B viruses attending to the victims of a crash was entitled to payment for tests necessary to determine if the viruses were contracted.) b. [5.6] An employee may be entitled to workers compensation benefits for payment of medical monitoring arising from exposure to hazardous materials despite the fact that the employee remains in good health and is asymptomatic. Brendley v. Pennsylvania Dep t of Labor & Industry, 926 A.2d 1276 (Pa.Cmwlth. 2007). COMMENT: [5.7] No mechanism exists for a class-action claim under which a group of workers can proceed under a single petition. c. [5.8] Any disease that is caused by the workplace (and any preexisting nonoccupational disease that is aggravated by the workplace) and related thereto is also compensable as an injury under section 301(c)(1), 77 P.S. 411(1). Pawlosky v. WCAB (Latrobe Brewing Co.), 525 A.2d 1204 (Pa. 1987). 5. [5.9] An injury need not be pinpointed to a specific event or definable incident as long as the injury arises in the course of employment and is related thereto. WCAB (Young) v. Bethlehem Steel Corp., 352 A.2d 571 (Pa.Cmwlth. 1976). Work-related disability may be shown to result from the cumulative effect of the recurring trauma of the work duties. Roberts v. WCAB (Double R Enters.), 719 A.2d 847 (Pa.Cmwlth. 1998) (foot condition); Curran v. WCAB (Maxwell Industries), 664 A.2d 667 (Pa.Cmwlth. 1995) (pulmonary disorder); Williamette Industries v. WCAB (Lockett), 647 A.2d 665 (Pa.Cmwlth. 1994) (carpal tunnel syndrome); Mancini s Bakery v. WCAB (Leone), 625 A.2d 1308 (Pa.Cmwlth. 1993) (arthritic knees); Capitol Area Transit Co. v. WCAB (Duncan), 466 A.2d 249 (Pa.Cmwlth. 1983) (hemorrhoids); Beaver Supermarket v. WCAB (Sheldrake), 424 A.2d 1023 (Pa.Cmwlth. 1981) (back); and WCAB (N.V.F. Co.) v. Hamilton, 346 A.2d 387 (Pa.Cmwlth. 1975) (epicondylitis). PRACTICE TIP: [5.10] In presenting the employee s evidence in a cumulative trauma case, it is necessary that the lay and medical testimony explain how each day in the workplace constitutes a separate trauma that substantially contributes to the ultimate inability to perform the time-of-injury job. The evidence should stress the number of times per day an activity is performed in the same postural movement. On the other hand, the employer s evidence should focus on the fact that the symptomatology and the diagnosis remain the same through the employee s last day of work, and that each day of work did not alter the natural course of the impairment. Of critical importance in this discussion is the requirement of the employee to give notice to the employer within 120 days of the injury. If the WCJ concludes that each day in the workplace constitutes a separate injury, the notice period will not begin to run until the employee s last day of work. (See also [3.55], page 33.) B. Aggravation of Preexisting Condition versus Recurrence 1. [5.11] The question of whether disability is the result of aggravation of a preexisting medical problem (occupational or nonoccupational) or a recurrence of a prior work injury has produced significant litigation. The issue often arises when one employer has different insurance carriers for each date of injury or when successive employers are potentially liable for the disability See C.P. Martin Ford, Inc. v. WCAB (Dzubur), 767 A.2d 1164 (Pa.Cmwlth. 2001); ITT-Hartford Ins. Group v. WCAB (Atlantic Mutual Ins. 58

3 Chapter 5: Claim: Definition of Injury [5.19] Co.), 688 A.2d 247 (Pa.Cmwlth. 1997); Blue Bell Printing v. WCAB (Montgomery Publ g Co.), 539 A.2d 933 (Pa.Cmwlth. 1988); Swartz v. WCAB (Dutch Pantry Restaurant), 543 A.2d 201 (Pa.Cmwlth. 1988). For a discussion of the compensability of aggravation of a preexisting nonoccupational disease, see [5.8], page [5.12] Act 44 provides that an injured employee may not collect benefits from two or more employers or insurers in excess of the maximum benefit provided by the Act. The new provisions, however, also permit the payment of benefits on a pro rata basis if the employee receives more than one injury while in the employ of more than one employer. The pro rata basis is to be determined in the same ratio that the wages of each employment bear to each other. Section 322, 77 P.S Section 322 applies to successive carriers as well as to successive employers. See Trenton China Pottery v. WCAB (Mensch), 773 A.2d 1265 (Pa.Cmwlth. 2001). COMMENT: [5.13] The actual mathematical calculations in Trenton China Pottery are difficult to reconcile with the principle of section 322, on which the case relies. 3. [5.14] The legislative intent of section 322 to allow apportionment was relied upon, in part, in apportioning liability between successive carriers for disability caused by successive injuries with one employer. Since the injuries equally contributed to the employee s total disability, compensation was ordered to be shared by each on a 50/50 basis. Franklin Steel Co. v. WCAB (Clark), 665 A.2d 1310 (Pa.Cmwlth. 1995). 4. [5.15] The WCJ can rely on medical expert testimony for a finding that separate injuries occurred, and apportionment can be allocated among the insurers. Guard Ins. Group v. WCAB (York), 864 A.2d 1285 (Pa.Cmwlth. 2005). 5. Multiple Injuries That Are Distinct in Nature and Apportionment of Liability (Section 322, 77 P.S. 677) a. [5.16] When two separate work-related injuries substantially contributed to the employee s ongoing disability, the apportionment of benefits between the insurers had to be based on the employee s earnings at the time each of the insurers provided coverage to the employer, and not in relation to any qualification of the prior injury s substantial contributions to the current disability. Safety Nat l Cas. Corp. v. WCAB (Draper), 887 A.2d 809 (Pa.Cmwlth. 2005). b. [5.17] Stated another way, when the employee was receiving partial disability benefits from the first employer at the time of another injury with a second employer, and both injuries substantially contributed to the ongoing total disability, the employee was entitled to partial disability from the first work-related injury and total disability from the second as long as the two combined did not exceed the SAWW for the second injury. Safety Nat l Cas. Corp. v. WCAB (Draper), 887 A.2d 809 (Pa.Cmwlth. 2005). COMMENTS: [5.18] The liability of the first employer appears to be capped at the partial disability rate being paid before the second injury. [5.19] Although the legislative intent is not clear, it may be argued that, at least in the case of injuries suffered with successive employers or carriers, the Act now provides a method of allocation between the two. However, to the extent that the successive injuries are similar, the litigation of the issue of recurrence versus new injury is probably not affected by Act

4 [5.20] Chapter 5: Claim: Definition of Injury PRACTICE TIP: [5.20] The practitioner is advised to familiarize the physician with the distinction between aggravation and recurrence and review some of the factual scenarios set forth below with the physician prior to commencing litigation. c. [5.21] Where an intervening work-related incident materially contributes to disability thereafter, that intervening incident constitutes a new injury. For a discussion of this and other factors to be considered with respect to the distinction between a new injury and a recurrence, see City of Williamsport v. WCAB (Schmuck), 423 A.2d 817 (Pa.Cmwlth. 1980). d. [5.22] If a subsequent aggravation occurs and the employee receives benefits for a new injury, medical evidence that concludes that the disability is due to both the aggravation/new injury and recurrence/prior old injury will support an award of continuing benefits payable by the second employer/insurer and not the original employer/insurer. East West Equip. Co. v. WCAB (Monarch Circuit Industries), 562 A.2d 958 (Pa.Cmwlth. 1989). e. [5.23] When the employee, after the initial injury, returned to work for a new employer, and suffered a recurrence of disability due to the first injury and later an aggravation of the injury due to the new employment, the WCJ did not commit an error of law in awarding ongoing partial benefits against the first employer and total benefits against the second employer. The combined benefits, however, cannot exceed the maximum compensation rate payable. Westmoreland Reg l Hosp. v. WCAB (Stopa), 789 A.2d 413 (Pa.Cmwlth. 2001); Reliable Foods, Inc. v. WCAB (Horrocks), 660 A.2d 162 (Pa.Cmwlth. 1995). f. [5.24] In L.E. Smith Glass Co. v. WCAB (Clawson), 813 A.2d 634 (Pa. 2002), the employee was not entitled to concurrent awards of total disability benefits up to the statutory maximum for the year of the second injury. Since the employee was already totally disabled due to the second injury when he suffered a recurrence of the first injury, there was no loss of earning power at that time and he was only entitled to temporary total disability benefits in connection with the second injury. PRACTICE TIP: [5.25] Where the employee has suffered more than one work-related injury over time, a careful analysis must be made as to which injury has resulted in total disability for purposes of determining the appropriate compensation rate. g. [5.26] Although a second period of disability may be found to have resulted from an aggravation and is payable by the employer at the time of aggravation, the WCJ may, if competent evidence is presented, find that ongoing disability is the result of the initial injury, i.e., the period of aggravation is transient. The employer at the time of the initial injury then becomes liable for continuing benefits. Pacemaker Driver Serv. v. WCAB (Merman), 571 A.2d 5 (Pa.Cmwlth. 1990). The court in Pacemaker remanded to the WCJ for findings regarding a number of questions raised, among them, the percentage that disability is attributable to both the initial and 60

5 Chapter 5: Claim: Definition of Injury [5.33] second incident. But see Refiners Transport & Terminal v. WCAB (Harris), 632 A.2d 979 (Pa.Cmwlth. 1993), where the court would not permit an allocation and held that the injury occurred on the last date of employment. h. [5.27] Work-related aggravation of asthma is compensable, but compensability ends when the work-related aggravation ends, even if the employee is not able to return to the work environment due to the potential of exacerbating the preexisting non work-related condition. Bethlehem Steel Corp. v. WCAB (Baxter), 708 A.2d 801 (Pa. 1998) (preexisting asthma was aggravated by work but lung function was restored to prior level following removal from workplace); Meadville Forging Co. v. WCAB (Hawes), 726 A.2d 1111 (Pa.Cmwlth. 1999) (not entitled to ongoing disability benefits once work-related aggravation of preexisting Raynaud s Phenomenon was resolved). See also Putz v. WCAB (Lupini Constr. Co.), 727 A.2d 1192 (Pa.Cmwlth. 1999); Giant Eagle, Inc. v. WCAB (Thomas), 725 A.2d 873 (Pa.Cmwlth. 1999). i. [5.28] Aggravation of preexisting, lifelong allergies that result in chronic disabling conjunctivitis is compensable. City of Philadelphia v. WCAB (Whaley-Campbell), 34 A.3d 871 (Pa.Cmwlth. 2011) (distinguishes Baxter, as the condition did not resolve once exposure to the aggravation factor ended). j. [5.29] Where the employee s work-related aggravation of a preexisting condition continues and the employee suffers a wage loss with a subsequent employer, the employee is entitled to partial disability benefits. Bethlehem Steel Corp. v. WCAB (Boles), 677 A.2d 857 (Pa.Cmwlth. 1996), aff d, 713 A.2d 1116 (Pa. 1998). k. [5.30] If the condition is actually caused by the employment, and the symptoms resolve once removed from the environment but would recur with reentry, then compensability for disability continues. Schrader Bellows Pneumatics v. WCAB (Earle), 711 A.2d 578 (Pa.Cmwlth. 1998). Benefits were denied where the WCJ accepted evidence that the employee only suffered a non work-related aggravation that was coincidental in time with his employment. Vazquez v. WCAB (Masonite Corp.), 687 A.2d 66 (Pa.Cmwlth. 1996). PRACTICE TIP: [5.31] In developing medical evidence in cases dealing with conditions that may be considered preexisting, it is important to determine whether there is any causal relationship as to the actual inception of the condition or whether any residual effect is causally related to work. 6. [5.32] When the evidence establishes that the additional period of disability is a recurrence rather than a new injury, it is improper for the WCJ to find a new injury. Zinc Corp. of America v. WCAB (Byers), 613 A.2d 563 (Pa.Cmwlth. 1992). Even though the second period of disability is preceded by a precipitating event, the WCJ may accept medical testimony that the disability is a recurrence and not a new injury. Smith v. WCAB (Caton), 606 A.2d 599 (Pa.Cmwlth. 1992). 7. [5.33] An injury unrelated to an employee s job is compensable if the injury is the proximate, natural, and probable result of prior work-related injuries. Bush Coal Co. v. WCAB (Adams), 499 A.2d 730 (Pa.Cmwlth. 1985); Topps Chewing Gum, Inc. v. WCAB (Demich), 485 A.2d 1237 (Pa.Cmwlth. 1985); GTE Sylvania v. WCAB (Lydon), 458 A.2d 1050 (Pa.Cmwlth. 1983). 61

6 [5.34] Chapter 5: Claim: Definition of Injury 8. [5.34] When the physiological stress of a fractured leg ultimately contributes to systemic organ failure and death, the loss of life is compensable. Pennsylvania State Univ. v. WCAB (Rabin), 53 A.3d 126 (Pa.Cmwlth. 2012). 9. [5.35] Where the claimant in good faith seeks medical treatment for his or her injury, and the medical treatment itself either aggravates the existing injury or causes new or additional injury, the law regards the latter as having been caused by the original accident. The subsequent aggravation or new injury is attributable to the original accident even in cases of mistaken diagnosis, unnecessary operations, and negligence in treatment. WCAB (Bartosevich) v. Ira Berger & Sons, 368 A.2d 282, 284 (Pa. 1977) (quoting Hurchick v. Falls Twp. Bd. of Supervisors, 198 A.2d 356 (Pa.Super. 1964)). For a discussion of injuries arising from travel to and from treatment for a work injury, see chapter 7, [7.75] et seq., starting at page 87. C. Psychological Injury 1. Claim of Psychological Injury [5.36] Disabilities caused by psychological/mental elements may be considered to be injuries under the Act and, therefore, compensable if the other elements needed to establish a claim are met, and fall into three discrete areas: a. [5.37] physical stimulus causing psychic injury, the physical/mental association; b. [5.38] psychological stimulus causing psychic injury, the mental/mental association; c. [5.39] psychological stimulus causing physical injury, the mental/physical association. 2. Physical/Mental Injury a. [5.40] Post-traumatic psychological disabilities brought about by work-related physical injuries are compensable. County of Dauphin v. WCAB (Davis), 582 A.2d 434 (Pa.Cmwlth. 1990); Chamberlain Mfg. Corp. v. WCAB (Wolter), 405 A.2d 1375 (Pa.Cmwlth. 1979); Dill Products v. WCAB (Cuff), 401 A.2d 409 (Pa.Cmwlth. 1979). b. [5.41] It is not necessary for the employee to prove that he or she suffered a physical disability that caused the mental disability, but rather only to show that a physical stimulus resulted in the mental disability. Bartholetti v. WCAB (School Dist. of Philadelphia), 927 A.2d 743 (Pa.Cmwlth. 2007); Donovan v. WCAB (Academy Med. Realty), 739 A.2d 1156 (Pa.Cmwlth. 1999). c. [5.42] When an employee developed post-traumatic stress disorder resulting from a motor vehicle accident caused by a suicidal driver, the accident constitutes a triggering physical event, and it is unnecessary to demonstrate an abnormal working condition. New Enterprise Stone & Lime Co. v. WCAB (Kalmanowicz), 59 A.3d 670 (Pa.Cmwlth. 2012). 3. Mental/Mental Injury [5.43] The employee claiming a psychiatric disability due to emotional, nonphysical stimuli at work has a greater burden of proof than the employee claiming physical injury or physical stimuli causing a resultant emotional injury. This different burden of proof was endorsed by the Pennsylvania Supreme Court in Martin v. Ketchum, Inc., 568 A.2d 159 (Pa. 1990). The work-related stress must be caused by actual objective abnormal working conditions, as opposed to subjective, perceived, or imagined employment events. Martin, US Airways, and Thomas v. WCAB (Atlantic Refining Co.), 423 A.2d 784 (Pa.Cmwlth. 1980). The applicable law relating to mental illness is reviewed in detail in Martin, Hammerle v. WCAB (Department of Agric., Bur. of Dog Law 62

7 Chapter 5: Claim: Definition of Injury [5.51] Enforcement), 490 A.2d 494 (Pa.Cmwlth. 1985), and Bell Telephone Co. of Pennsylvania v. WCAB (DeMay) and Bell Telephone Co. of Pennsylvania v. WCAB (Salsberry), 487 A.2d 1053 (Pa.Cmwlth. 1985). a. [5.44] A long-term process of mental or emotional deterioration may be compensable. See McDonough v. WCAB (Commonwealth, Dep t of Transp.), 470 A.2d 1099 (Pa.Cmwlth. 1984). b. [5.45] Constitutional challenges to this different burden of proof have not been successful. See Pate v. WCAB (Boeing Vertol Co.), 522 A.2d 166 (Pa.Cmwlth. 1987). Furthermore, having such a different burden of proof does not violate the Americans with Disabilities Act, 42 U.S.C Berninger v. WCAB (East Hempfield Twp.), 761 A.2d 218 (Pa.Cmwlth. 2000). c. [5.46] Unequivocal medical evidence is required to establish that the resulting psychological disability is causally related to the abnormal working condition. Romanies v. WCAB (Borough of Leesport), 644 A.2d 1164 (Pa. 1994). d. [5.47] The determination of an abnormal working condition is highly fact-sensitive, and the findings of the WCJ should not be disturbed unless these findings are arbitrary and capricious. Payes v. WCAB (Commonwealth PA State Police), 79 A.3d 543, (Pa. 2013). The abnormal working condition analysis must be based on content, intensity, duration, and frequency of the offending behavior. RAG (Cyprus) Emerald Resources, L.P. v. WCAB (Hopton), 912 A.2d 1278 (Pa. 2007). e. [5.48] The Supreme Court in Payes has set forth the following criteria for determining if a psychiatric disability without a physical stimulus (mental/mental) injury is compensable: (1) the claimant s psychological injury has been objectively verified, (2) it has been traced to an identifiable source, and (3) that incident alone, and not any purported comparable set of incidents, was abnormal. Payes, above. f. [5.49] The conditions of employment or inherent risk related thereto are not a controlling factor in the determination of an abnormal working condition. Therefore, the mental injury of a police officer arising from an event in which a woman committed suicide by jumping in front of his police vehicle was found compensable despite the inherent risk of the officer s work or training in preparation for such an occurrence. Payes, above. COMMENT: [5.50] The holdings in the following cases must be read in light of the decision in Payes: (1) [5.51] For objective employment events to be considered abnormal, they must be considered in relation to the specific employment. Antus v. WCAB (Sawhill Tubular Div. Cyclops Industries, Inc.), 625 A.2d 760 (Pa.Cmwlth. 1993); Williams v. WCAB (Philadelphia Nat l Bank), 548 A.2d 1344 (Pa.Cmwlth. 1988); Sibrava v. WCAB (Trans World Airlines), 537 A.2d 75 (Pa.Cmwlth. 1988); and Pate v. WCAB (Boeing Vertol Co.), 522 A.2d 166 (Pa.Cmwlth. 1987). Even when the employment is highly stressful, such as police, firefighter, and rescue worker vocations, the comparison is to other police, rescue workers, and firefighters. See Washington v. WCAB (Commonwealth of Pa. State Police), 11 A.3d 48 (Pa.Cmwlth. 2011); Linskey v. WCAB (City of Philadelphia), 699 A.2d 818 (Pa.Cmwlth. 1997); Clowes v. WCAB (City of Pittsburgh), 639 A.2d 944 (Pa.Cmwlth. 1994); Cadden v. WCAB (City of Philadelphia), 579 A.2d 1378 (Pa.Cmwlth. 1990); and City of Wilkes-Barre v. WCAB (Swan), 567 A.2d 771 (Pa.Cmwlth. 1989). In these cases, benefits were denied since the particular 63

8 [5.52] Chapter 5: Claim: Definition of Injury employees were not under any more stress than expected of police and firefighters. The same result was reached in Isbell v. WCAB (Department of Corrections), 751 A.2d 268 (Pa.Cmwlth. 2000), where the employee was employed as a corrections officer. But see City of Scranton v. WCAB (Hart), 583 A.2d 852 (Pa.Cmwlth. 1990), where the particular facts caused a different result and benefits were awarded. (2) [5.52] An injury occurring as the result of a foreseeable risk is not the result of an abnormal working condition. PA Liquor Control Bd. v. WCAB (Kochanowicz), 29 A.3d 105 (Pa.Cmwlth. 2011) (training on violence in a high-risk environment), app. granted, vac., rem d by A.3d, No. 779 MAL 2011 (Pa. February 12, 2014) (remanded for further determination based on Payes). (3) [5.53] Even the exposure to horrible working conditions must be viewed in terms of the specific employment, and the Commonwealth Court held that it was not unusual for nurses in prisons to be touched or struck with urine, feces, and all kinds of other bodily fluids and to attend to self-mutilation wounds. Babich v. WCAB (CPA Dep t of Corrections), 922 A.2d 57 (Pa.Cmwlth. 2007). PRACTICE TIP: [5.54] The practitioner should be very cautious before proceeding with a mental/mental case. Despite the Supreme Court s decision in Payes, the appellate courts may still be reluctant to find these cases compensable. g. [5.55] Some examples of where claims have been denied (not abnormal working conditions) are as follows: Working Conditions Considered NOT Abnormal Facts [5.56] Door-to-door salesperson robbed at gunpoint. [5.57] Harassment and abuse by supervisors. Case Kennelty v. WCAB (Schwan s Home Serv., Inc.), 934 A.2d 692 (Pa. 2007). Philadelphia Newspapers, Inc. v. WCAB (Guaracino), 675 A.2d 1213 (Pa. 1996); Heath v. WCAB (Pennsylvania Bd. of Probation & Parole), 860 A.2d 25 (Pa. 2004); McKinney v. WCAB (Decision Data), 752 A.2d 928 (Pa.Cmwlth. 2000), rev d per curiam, 770 A.2d 326 (Pa. 2001); Davis v. WCAB (City of Philadelphia), 753 A.2d 905 (Pa.Cmwlth. 2000); Supervalu, Inc. v. WCAB (Pettinato), 727 A.2d 1174 (Pa.Cmwlth. 1999). 64

9 Chapter 5: Claim: Definition of Injury [5.62] Working Conditions Considered NOT Abnormal (Continued) Facts [5.58] A change of job duties including added responsibilities. Case Hershey Chocolate Co. v. WCAB (Lasher), 682 A.2d 1257 (Pa. 1996); Wilson v. WCAB (Alcoa), 669 A.2d 338 (Pa. 1996); Scott v. WCAB (Jeanes Hosp.), 732 A.2d 29 (Pa.Cmwlth. 1999); Aument v. WCAB (Flexsteel Industries, Inc.), 720 A.2d 1095 (Pa.Cmwlth. 1998); Kelly v. WCAB (PPG Industries, Inc.), 632 A.2d 1042 (Pa.Cmwlth. 1993); Przychodzki v. WCAB (Wyeth Lab.), 632 A.2d 1048 (Pa.Cmwlth. 1993); Smith v. WCAB (Department of Labor & Industry), 632 A.2d 1033 (Pa.Cmwlth. 1993); Antus v. WCAB (Sawhill Tubular Div. Cyclops Industries, Inc.), 625 A.2d 760 (Pa.Cmwlth. 1993). [5.59] Concerns over economic issues. Gulick v. WCAB (Pepsi-Cola Operating Co.), 711 A.2d 585 (Pa.Cmwlth. 1998); P.R. Hoffman Materials v. WCAB (Zeigler), 707 A.2d 1184 (Pa.Cmwlth. 1998); Birenbaum v. WCAB (English Greenhouse Products Corp.), 632 A.2d 1037 (Pa.Cmwlth. 1993); Greco v. WCAB (Classic Carpet Serv. Co.), 625 A.2d 1273 (Pa.Cmwlth. 1993). [5.60] Police, fire, and emergency service personnel. [5.61] Fear of bodily harm from potential criminal conduct (potential danger is not sufficient). Washington v. WCAB (Commonwealth of Pa. State Police), 11 A.3d 48 (Pa.Cmwlth. 2011); Farmery v. WCAB (City of Philadelphia), 776 A.2d 349 (Pa.Cmwlth. 2001); Rydzewski v. WCAB (City of Philadelphia), 767 A.2d 13 (Pa.Cmwlth. 2001); Young v. WCAB (New Sewickley Police Dep t), 737 A.2d 317 (Pa.Cmwlth. 1999); Linskey v. WCAB (City of Philadelphia), 699 A.2d 818 (Pa.Cmwlth. 1997); City of Philadelphia v. WCAB (Brasten), 682 A.2d 875 (Pa.Cmwlth. 1996), aff d, by equally divided court, 728 A.2d 938 (Pa. 1999). City of Pittsburgh v. WCAB (Plowden), 804 A.2d 82 (Pa.Cmwlth. 2002); McLaurin v. WCAB (SEPTA), 980 A.2d 186 (Pa.Cmwlth. 2009). [5.62] Armed robbery in a liquor store. PA Liquor Control Bd. v. WCAB (Kochanowicz), 29 A.3d 105 (Pa.Cmwlth. 2011), app. granted, vac., rem d by A.3d, No. 779 MAL 2011 (Pa. February 12, 2014) (remanded for further determination based on Payes). 65

10 [5.63] Chapter 5: Claim: Definition of Injury Working Conditions Considered NOT Abnormal (Continued) Facts [5.63] Combative patient behavior against a mental health worker trained to deal with such situations. [5.64] Termination of employment resulting in a fatal heart attack. Case Anderson v. WCAB (Washington Greene Alternative), 862 A.2d 678 (Pa.Cmwlth. 2004). Erie Bolt Corp. v. WCAB (Elderkin), 777 A.2d 1169 (Pa.Cmwlth. 1998), rev d per curiam, 753 A.2d 1289 (Pa. 2000). h. [5.65] The following are examples of cases in which claims were granted for abnormal working conditions: Working Conditions Considered Abnormal Facts [5.66] Crude sexual comments demonstrating a course of conduct of a supervisory employee clearly calculated to cause severe emotional distress. [5.67] Religious and cultural harassment in addition to sexual harassment. [5.68] Wrongfully accused of a crime by a supervisor. [5.69] Verbal reprimands or actual harassment. [5.70] Wrongfully accused of falsifying time records combined with physical and verbal abuse and then terminated for a false reason. [5.71] Dramatic change in working conditions. Case RAG (Cyprus) Emerald Resources, L.P. v. WCAB (Hopton), 912 A.2d 1278 (Pa. 2007). Community Empowerment Ass n v. WCAB (Porch), 962 A.2d 1 (Pa.Cmwlth. 2008). Miller v. WCAB (New Wilmington Fam. Practice), 724 A.2d 971 (Pa.Cmwlth. 1999). Arthrell v. WCAB (Pennsylvania State Police), 624 A.2d 686 (Pa.Cmwlth. 1993); Archer v. WCAB (General Motors), 587 A.2d 901 (Pa.Cmwlth. 1991). U.S. Airways v. WCAB (Long), 756 A.2d 96 (Pa.Cmwlth. 2000); see also Borough of Beaver v. WCAB (Rose), 810 A.2d 713 (Pa.Cmwlth. 2002). Zink v. WCAB (Graphic Packaging, Inc.), 828 A.2d 456 (Pa.Cmwlth. 2003) (Zink I); Selkow v. WCAB (Anchor Davis-Jay Box Co.), 662 A.2d 31 (Pa.Cmwlth. 1995). [5.72] Near encounter with serious injury. Monessen, Inc. v. WCAB (Marsh), 631 A.2d 1119 (Pa.Cmwlth. 1993). 66

11 Chapter 5: Claim: Definition of Injury [5.77] Working Conditions Considered Abnormal (Continued) Facts [5.73] Employer s failure to contribute to the union health fund and pay into Social Security after making deductions therefor from the employee s paycheck constituted the employer s systematic theft of money from the employee that threatened his financial security. Case C. Hannah & Sons Constr. v. WCAB (Days), 784 A.2d 860 (Pa.Cmwlth. 2001). i. [5.74] Objective evidence corroborating an employee s perception is usually necessary to determine the existence of abnormal working conditions. An employee s testimony alone is not sufficient. Andracki v. WCAB (Allied Eastern States Maint.), 508 A.2d 624 (Pa.Cmwlth. 1986); Russella v. WCAB (National Foam Sys., Inc.), 497 A.2d 290 (Pa.Cmwlth. 1985). When the employee claimed that co-employees and the employer harassed the employee, corroborative evidence was required. Waldo v. WCAB (Erie Metro. Transit Auth.), 582 A.2d 1147 (Pa.Cmwlth. 1990). j. [5.75] Objective evidence corroborating an employee s perception is not necessary to determine the existence of abnormal working conditions under certain circumstances. Where an employee alleges harassment by supervisors, including the use of foul and derogatory language, corroboration of the event is not necessary. Archer v. WCAB (General Motors), 587 A.2d 901 (Pa.Cmwlth. 1991). Furthermore, corroborative evidence is not necessary where actual events are described as occurring and are found to have occurred by the WCJ. Philadelphia Electric Co. v. WCAB (Miller), 643 A.2d 1186 (Pa.Cmwlth. 1994); Monessen, Inc. v. WCAB (Marsh), 631 A.2d 1119 (Pa.Cmwlth. 1993); Reigle v. WCAB (Federal Express), 601 A.2d 1331 (Pa.Cmwlth. 1992). k. [5.76] To establish that an increased workload constitutes abnormal working conditions, an employee must prove that it was unusual for that position. Hershey Chocolate Co. v. WCAB (Lasher), 682 A.2d 1257 (Pa. 1996). It is not sufficient to prove that the duties are onerous to the employee. Supervalu, Inc. v. WCAB (Pettinato), 727 A.2d 1174 (Pa.Cmwlth. 1999). Further, new job duties will supply the abnormal working condition requirement only when a mental deterioration takes place over a number of years, and not when there is a rapid onset. Antus v. WCAB (Sawhill Tubular Div. Cyclops Industries, Inc.), 625 A.2d 760 (Pa.Cmwlth. 1993). l. [5.77] Where the employee had been awarded total disability benefits for posttraumatic stress disorder in a mental/mental case and then returned to work resulting in a suspension of benefits but disability recurred, the employee was not required to prove new abnormal working conditions to be entitled to reinstatement of benefits. Wertz v. WCAB (Department of Corrections), 683 A.2d 1287 (Pa.Cmwlth. 1996). For reinstatement of benefits, an employee suffering a previously accepted psychological injury need only meet the same burden as one suffering a physical injury as set forth in Pieper v. Ametek-Thermox Instruments Div., 584 A.2d 301 (Pa. 1990). 67