Is the Burden of Proof Shifting in Mental Injury Claims?
A recent Pennsylvania Supreme Court case is raising concerns among employers that the burden of proof may be shifting in mental injury or stress claims, making it easier for employees to recover workers’ compensation benefits under the right set of facts. To put this issue into context, it is necessary to review the history of mental injury claims and their evolution in the Pennsylvania Appellate Courts.
Pennsylvania courts traditionally apply a three-tiered analysis in dealing with alleged mental or emotional injuries under the Workers’ Compensation Act. Under this approach, claims that include a mental component are classified as “physical/mental;” “mental/physical;” or “mental/mental” (i.e., a mental stimulus or stressor causing purely mental or emotional diagnoses or symptoms).
Physical/Mental Claims. A case exemplifying “physical/mental” injuries is Donovan v. WCAB, 739 A.2d 1156 (Cmwlth. Ct. 1999). The Claimant in Donovan worked as a janitor at a medical facility and was responsible for vacuuming and emptying trash. He sustained a needle stick injury while emptying a trash can, leading to medical treatment in the form of booster shots and blood work. He later developed panic attacks, nausea and nightmares and was diagnosed as suffering from dysthymic disorder directly related to the needle stick incident. Not surprisingly, benefits were awarded on the basis that Donovan suffered a physical/mental injury, despite the employer’s argument that the case should have been categorized as a mental/mental case. The Commonwealth Court noted that a physical “stimulus” is all that is required to establish a physical/mental claim, and once established, the Claimant has no burden of showing the presence of “abnormal working conditions.”
Mental/Mental Claims. The second category of cases, the so-called “mental/mental” cases, continues to be viewed with much skepticism by the courts. Out of approximately twenty-five (25) reported cases since 1996, the courts have granted benefits only five (5) times. This is because Claimants bear a heightened burden of proof to demonstrate abnormal working conditions. This heightened burden of proof is typically met only where the mental disability was directly caused by a violation of law, such as sex, age, race or disability discrimination, or by a safety violation that produces a totally unexpected and abnormal workplace event or accident. Furthermore, the event must be “abnormal” with respect to the Claimant’s specific employment (i.e., a police officer who witnesses a shooting has not been exposed to “abnormal” working conditions) and there must be objective evidence to corroborate the Claimant’s perception that an abnormal working condition exists (i.e., witnesses or physical evidence documenting the event).
Mental/Physical Claims. The third category of cases, “mental/physical” cases, has also been hotly litigated. In 1994, the Commonwealth Court liberalized the compensability of “mental/physical” cases, by holding that an anxiety neurosis coupled with vague physical complaints, including chest tightness, headaches, diarrhea and persistent abdominal complaints, is enough to justify an award of benefits, even where the only stressor involved is an increased workload following a corporate merger. Whiteside v. WCAB, 650 A.2d 1202 (Cmwlth. Ct. 1994). Prior to Whiteside, mental/physical cases had been limited primarily to more serious maladies, such as strokes and heart attacks. The difficulty with Whiteside, from the employer’s perspective, is obvious. As long as the Claimant has a supportive physician who is willing to allege and testify that he/she has “physical manifestations” that accompany a mental disorder, a case for compensation benefits can theorectically be proven. Logistically, the employer would have great difficulty disproving highly subjective and vague complaints such as “headaches,” “chest tightness” and “diarrhea.”
The Pennsylvania Supreme Court addressed these concerns in Metropolitan Edison v. WCAB, 718 A.2d 759 (Pa. 1998). Although the Claimant in Metropolitan Edison alleged physical complaints (i.e., diarrhea, headaches, sleep disturbance and digestive problems) stemming from the cumulative stress of working rotating shifts as a dispatcher for 21 years, there was no strong evidence that these complaints “substantially limited Claimant’s ability to work.” In fact, the complaints began in September 1988 and Claimant continued working for more than two (2) years until December 1990, at which point he voluntarily quit his job to take a day shift position at a lower rate of pay.
Although the Supreme Court could have denied benefits in Metropolitan Edison on the basis that the physical complaints did not “substantially limit Claimant’s ability to work,” the court took a completely different tact. Citing several of its earlier decisions, the court noted that the term “injury” was not defined in the 1992 amendments to the Pennsylvania Workers’ Compensation Act and that the courts must now define that term, just as the courts had been called upon to define the term “accident” following passage of the original Act in 1915. Since the term “injury” has no technical definition or meaning, the Court held it must be interpreted according to its common and approved usage (i.e., “any hurtful or damaging effect which may be suffered by anyone”). Despite the liberalization of the term “injury” over the years, to include exposure to hazardous or toxic conditions in the workplace and aggravation of pre-existing conditions, the Supreme Court held that “it would be a gross distortion of the common and approved usage of the term injury to include within its meaning an employer’s scheduling of an employee to work during an available eight hour shift.” The Supreme Court therefore ruled that if the stimulus giving rise to physical complaints is a “normal condition of employment,” there is no compensable “injury” within the meaning of the Pennsylvania Workers’ Compensation Act. Otherwise, all physical complaints arising out of normal working conditions would be considered compensable “injuries” under the Act.
The mental/physical classification was further nullified in Davis v. WCAB (Swarthmore Borough), 751 A.2d 168 (Sup. Ct. 2000.) In Davis, the Supreme Court finally “turned the corner” and held that the fact that the Claimant was alleging physical as well as mental injuries was irrelevant to determining the Claimant’s burden of proof. Where the alleged precipitating cause of an injury is of a psychic nature, the Claimant must establish abnormal working conditions to prevail.
Due to the inherent difficulty of prevailing in cases of alleged mental injury, some claimants have presented alternative arguments to the court. A claimant police officer for instance, recently argued that the abnormal working condition standard applied by the courts contravened the Americans with Disabilities Act (ADA). He suggested that claimants with alleged mental impairment are forced to meet a greater burden than claimants with physical impairment, because an employee who is physically injured need only prove that he was injured in the course and scope of employment, while one alleging mental injury must prove abnormal working conditions. It was noted that this issue was a case of first impression before the Commonwealth Court, but was an issue which had been judicially addressed elsewhere. Beminger v. WCAB (East Hempfield Township), 761 A.2d 218 (Pa. Cmwlth. 2000). The court rejected the Claimant’s argument, and noted that the ADA only applied to discrimination between non-disabled and disabled persons. The Workers’ Compensation Act, on the other hand, distinguishes between types of disability, but not between disabled and non-disabled individuals.
Recent Supreme Court Case Starts to Shift the Burden. In Payes v. WCAB, 610 Pa. 402 (Pa. 2013) a State Police Trooper with 12 years of experience was driving his patrol car, in the dark, on Interstate 81. A woman dressed in black suddenly darted in front of the car and flipped over the vehicle, landing on the highway. The trooper pulled his vehicle over and rushed to attend to the woman. He administered CPR as the woman bled from the mouth. At the same time, the trooper attempted to divert oncoming traffic, to avoid further injuries to the victim or himself. Other troopers eventually arrived and the victim was pronounced dead at the scene.
The trooper was transported to a hospital for testing and treatment related to his exposure to the deceased victim’s blood. After attempting to return to office work, his recurring feelings of stress and anxiousness led to the filing of a claim for post-traumatic stress disorder.
The WCJ awarded benefits, finding the psychiatric testimony credible and finding also that the trooper met his burden of establishing “abnormal” working conditions. The WCJ noted that while it is true that troopers are exposed to vehicle accidents, mayhem, bodily injuries, death and murder in the normal course of their duties, they are not typically exposed to the circumstances that occurred in this case – – namely, a mentally disturbed person running in front of the patrol car for no apparent reason.
On appeal, the WCAB and Commonwealth Court reversed and denied benefits, holding as a matter of law that the trooper’s injuries did not result from abnormal working conditions, given the stressful and perilous nature of the profession. The Supreme Court, however, reinstated the award, finding that the determination of an “abnormal working condition” is highly fact-sensitive and that such determinations require deference to the fact-finding role of the WCJ. Abandoning the prior notion that the presence of abnormal working conditions involves a question of law fully reviewable on appeal, the Court laid out a two-step process for first reviewing the factual findings made by the WCJ and then reviewing the legal conclusion adopted by the WCJ. Applying this approach, the Court determined that the WCJ’s finding of “a singular extraordinary event occurring during the trooper’s shift,” was supported by substantial competent evidence. Next, having made this factual determination, the WCJ’s legal conclusion finding “abnormal working conditions” was also supported. Since the trooper did not have a subjective reaction to the ordinary vicissitudes of his job, but a reaction to a highly unusual and singular event, the Court ruled that the WCJ had correctly applied the factual findings to the appropriate legal construct.
Judge Eakin filed a strong dissenting opinion, noting that the determination of whether a WCJ’s factual findings support the presence of an abnormal working condition is always a question of law, fully reviewable on appeal. Thus, although it would be gratifying to award benefits under the facts presented, the reality is that law enforcement officers routinely face life and death situations, confrontations, injuries, blood, death and other frightening events, which are an unfortunate but necessary part of the jobs they perform. While the specifics of each event may vary and cannot be anticipated, the fact that such events will occur is certainly foreseeable. Accordingly, situations like this one, although traumatic, are simply not extraordinary or abnormal for police officers.
The Payes decision certainly increases the possibility of a decision in Claimant’s favor, where there is a strong sympathy factor favoring the employee and a liberal WCJ. Accordingly, legal pundits have suggested that the Payes decision will begin a trend of shifting the burden in mental claims away from the Claimants and toward employers. Although Payes does seem to lower the threshold for establishing liability via “abnormal working conditions” in purely mental/mental claims, we believe these cases will continue to be very fact-sensitive and subject to at least some elevated burden of proof.
We will keep you posted concerning further developments as the case law surrounding mental injury claims continues to evolve. Naturally, if you have questions or concerns about a specific case, please feel free to contact us.
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