March 05, 2013

The Mental Injury Conundrum in Pennsylvania Workers’ Compensation Cases

A client recently called to discuss his observation that within the past year or so there has been an increase in Pennsylvania Workers’ Compensation claims wherein a claimant alleges to have suffered a psychological condition. The client requested clarification of the law and desired to discuss how to defend against these claims.

            Psychological injuries fall in to three categories:

  • mental/physical—a psychological stimulus causes physical injury
  • physical/mental—a physical stimulus causes a psychic injury
  • mental/mental—a psychological stimulus causes a psychic injury

A Pennsylvania Workers’ Compensation claimant alleging a psychic injury categorized as a “mental/mental” claim bears an additional burden of proving he was “exposed to abnormal working conditions and that his psychological problems are not a subjective reaction to normal working conditions.” Babich v. WCAB (CPA Dept. of Corrections), 922 A.2d 57 (Pa.Cmwlth. 2007). Such claims are highly fact-sensitive and the working conditions must be considered in the context of the specific employment. Pa. Dept. of Corrections v. WCAB (Cantarella), 835 A.2d 860 (Pa.Cmwlth. 2003).

The mental/physical and physical/mental claims do not require that the claimant meet the additional burden of showing that the claimant was subjected to an abnormal working condition. In litigating a psychological claim, the first question that must be addressed is whether or not the alleged injury should be categorized as a mental/mental versus one of the other two categories that do not require the higher burden by the claimant. When defending such a claim, the defense attorney will attempt to show that there is very little or no physical injury and thus the claimant should be held to the higher burden of proving that he is subjected to “abnormal working conditions” and does not have a subjective reaction to what should be considered a normal working condition when taking in to account the nature of the occupation, etc. On the other hand, the claimant will highlight the physical part of his injury and attempt to convince the fact-finder that his claim should be considered to be physical/mental or mental/physical, thus only requiring him to prove that he sustained a disabling work-related injury.

Recently, the Commonwealth Court of Pennsylvania issued a decision that provided some clarification of what constitutes a physical/mental injury. New Enterprise Stone & Lime Co., Inc. and PMA Management Corp. v. WCAB (Kalmanowicz), 2012 Pa. Commw. LEXIS 328 (Pa.Commw.Ct. Dec. 6, 2012). In Kalmanowicz, the claimant was involved in a motor vehicle incident where the other driver died on impact. The claimant was diagnosed with contusions of the chest wall and right wrist, as well as left shoulder discomfort. The claimant testified that the driver of the other vehicle was pressing himself toward the windshield of his car and looking at the claimant when the two vehicles collided. The claimant believed that the other driver resembled him. The claimant resumed his pre-injury duties, but began treatment for post-traumatic stress disorder several months later. The IME psychiatrist opined that the claimant suffered from PTSD.

The court noted that in a physical/mental claim, the claimant does not need to prove that he suffered a physical disability or that the physical injury continues during the life of the psychic disability. “Rather, a claimant need only show that a physical stimulus resulted in a mental disability.” Id., citing Donovan v. WCAB (Acad.Med.Realty), 739 A.2d 1156, 1161 (Pa.Cmwlth. 1999). In affirming the WC judge, the Commonwealth Court stated that,

It is clear in this case that Claimant suffered a significant physical stimulus in the form of the head-on collision causing the death of the other driver before Claimant’s eyes, and disabling his loaded tractor-trailor causing it to descend an embankment. Claimant’s intimate involvement in the fatal accident is sufficient to constitute a “physical stimulus” to support a compensation award

The court then analyzed examples of mental/mental claims and noted that in those cases, “the psychological injury was not caused by a physical stimulus or triggering physical event.”

Practical ImplicationDefense attorneys have traditionally concentrated on the extent of claimant’s physical injuries when attempting to convince the judge to apply the mental/mental standard requiring the claimant to meet the higher burden of showing that he was subjected to an abnormal working condition. This inquiry is highly fact sensitive and must be considered in the context of the specific employment. Pa. Dept. of Corrections v. WCAB (Cantarella), 835 A.2d 860 (Pa.Cmwlth. 2003). More recently, the Commonwealth Court held that in a mental/mental claim, we must also consider whether or not the working condition was foreseeable or could have been anticipated. Pa. Liquor Control Bd. v. WCAB (Kochanowicz), 29 A.3d 105 (Pa.Cmwlth. 2011) (holding that the claimant could have anticipated being robbed at gun point where employer provided training on workplace violence geared toward robberies and presented evidence of frequent robberies of liquor stores in the vicinity).

In New Enterprise Stone & Lime Co., Inc. and PMA Management Corp. v. WCAB (Kalmanowicz), 2012 Pa. Commw. LEXIS 328 (Pa.Commw.Ct. Dec. 6, 2012), the physical stimulus, or triggering event was a significant and severe motor vehicle incident resulting in the claimant witnessing the death of the other driver and his own vehicle falling down an embankment. The court concentrated on the triggering physical event rather than on the claimant’s physical condition or injuries. Specifically, the court wrote that the claimant’s intimate involvement in the fatal accident was a sufficient triggering event. The court ignored the degree of physical injuries or physical impact upon the claimant.

What It Means to You

This case clarifies the law for the parties, particularly if the psychic claim is that of post traumatic stress disorder or other condition allegedly resulting from trauma. If the nature of the work-related event itself is of great physical magnitude and intimately involved the claimant, then the physical/mental standard applies.