Commonwealth Court vacates decision on abnormal working condition standard

CommCtThe Pennsylvania Commonwealth Court has vacated a Workers Compensation Appeal Board (WCAB) decision denying workers compensation benefits to an employee of store that was robbed.   By way of background, the injured employee was working at a store when the store was robbed.  The injured employee was assaulted as a result of the robbery and subsequently filed a workers compensation claim petition based on injuries sustained from the assault and mental distress from the robbery.   The Court agreed with the WCAB that the physical injuries were not that severe to keep the injured employee out of work, but vacated and sent back for the WCAB to determine the abnormal working condition standard based on Payes v. WCAB.

In Payes, a state police trooper was driving patrol in the early morning hours when a woman dressed in all black suddenly ran in front of and was struck by the trooper’s car.  The incident was caught on film by the trooper’s patrol car.   As other troopers arrived on the scene, the injured lady was pronounced dead.  The trooper returned to work, but after four days, his feelings of anxiousness and stress led him to believe he could not continue to perform his job as a state trooper.  Eventually, the trooper filed a claim petition alleging a work-related injury of post traumatic stress disorder.  The important part of this decision was the findings of the original workers compensation judge (WCJ), and more specifically, finding 13.

Based on these credibility findings, the WCJ determined that Appellant had proven a mental injury arising from a work-related mental stimulus. The WCJ further found that, although state troopers may expect to encounter or be involved with violent situations, the particular work-related mental stimulus here was not one normally encountered by or expected of state troopers, as illustrated by the following relevant findings of fact:

13. State Troopers are not in the normal course of their duties exposed to the circumstances that occurred in this case; to wit[,] a mentally disturbed individual running in front of a Trooper’s vehicle while he is operating the vehicle, for no apparent reason. Further, what occurred at the point of impact and immediately thereafter are not working conditions which normally occur for State Troopers[: Appellant’s] attempted but failed resuscitation of the woman he killed on Interstate 81 while vehicular traffic [was] oncoming, waiting for assistance from other troopers.

The PA Supreme Court upheld the WCJ’s factual findings in that the event involving the trooper was not something that would be normally expected in that position.

 

Because Appellant’s injury arose from a single incident, such inquiry rested on whether that incident alone, and not any purportedly comparable sets of incidents, was abnormal. The WCJ found, based on the credible evidence before him, that the type of incident in this case was not one to which state troopers are normally exposed. Thus, unless a reviewing tribunal had set aside this factual finding as arbitrary and capricious, it was bound by it when analyzing the legal issue of whether the working conditions were abnormal . . . 

That is, the record supports the WCJ’s finding that what transpired on November 29, 2006, was not an event normally experienced or anticipated by employees in Appellant’s line of work. Accordingly, Appellant did not have a “subjective reaction to [the] ordinary vicissitudes” of his job, but a reaction to a highly unusual and singular event. Davis, supra at 177. For this reason, as a matter of law, the WCJ’s determination, which correctly applied the WCJ’s factual findings to the appropriate legal construct, is consistent with this Court’s case precedent distinguishing normal from abnormal working conditions.

Breaking it down, we can see three elements develop in showing an abnormal working condition, hence, a mental/mental injury.

  1. Psychological injury must be objectively verified
  2. Injury must be traced to a indentifiable source
  3. The incident alone, and not comparable sets of incidents, was abnormal

These three  elements are the ‘lens’ in which the Commonwealth Court vacated and remanded back to the WCAB for determination of whether an abnormal working condition existed in this case, and hence, a work injury.

PA Supreme Court to remain short-handed

You can read it here.

With Centre County President Judge Thomas Kistler’s announced withdrawal, the state’s high court will remain at five of seven seats, likely until the November elections.  Democrat Ken Gormley, was was the other high court nominee, will sit and watch his nomination die.

Currently, the Supreme Court is divided at 3-21 for the GOP.  The Senate will not act on Gormley’s nomination, because that would put the Court at a 3-3 deadlock.  In theory, does that matter?  No.  In reality, it does.  Politics are a reality when appointing Judges’ at any level of the state judicial system.  Nomination would have to go through the GOP controlled State Senate

Governor Tom Wolf indicated today that he does not plan to put forth any new nominees.  Three seats will be up for election to the high court come this year’s elections.  Here is a slate of possible nominees as of now with Bar Ratings.

Democrats

Christine Donohue, Superior Court judge from Allegheny County, PBA “Highly Recommended”

Kevin Dougherty, Philadelphia Common Pleas Court judge, PBA “Recommended”

John Foradora, Jefferson County Common Pleas Court judge, PBA “Recommended”

Anne Lazarus, Superior Court judge from Philadelphia and chair of the Judicial Conduct Board, PBA “Highly Recommended”

David Wecht, Superior Court judge from Allegheny County, PBA “Highly Recommended”

Dwayne Woodruff, Allegheny County Common Pleas Court judge and former cornerback for the Pittsburgh Steelers (He won a Super Bowl ring in 1979.), PBA “Recommended”

Republicans

Cheryl Lynn Allen, Superior Court judge from Allegheny County, PBA “Highly Recommended”

John Bender, Superior Court judge from Allegheny County, PBA “Recommended”

Anne Covey, Commonwealth Court judge from Bucks County, Republican Party endorsee, PBA “Not Recommended”

Michael George, Adams County Court judge, Republican Party endorsee, PBA “Recommended”

Renee Cohn Jubelirer, Commonwealth Court judge from Centre County and wife of former Lt. Gov. Robert Jubelirer, PBA “Recommended”

Judy Ference Olson, Superior Court judge from Allegheny County, Republican party endorsee, PBA “Highly Recommended”

Paul Panepinto, Philadelphia Common Pleas Court judge, PBA “Recommended”

Correale Stevens, appointed Supreme Court justice from Luzerne County, PBA “Highly Recommended”

Rebecca Warren, Montour County district attorney, PBA “Not Recommended”

Realities in a Pennsylvania workers compensation settlement

settlementimageI have written posts before about the timing of a workers compensation settlement. It’s a personal decision between you and your family.  The topic of this post is — settlement expectations. There are a few realistic expectations that must be discussed to better help you understand the settlement process.

First, just because an injured worker decides they are ready to settle their claim, does not necessarily mean the workers compensation insurance carrier is interested in settling claim. It has to be a two-way street, “it takes two to tango”.

Second, it is important to understand that settlement often does not occur quickly. Many times, if a Claimant is interested in settling, an insurance carrier may commence litigation, such as filing a Suspension or Termination Petition, to gain leverage in settlement discussions. Other times it can take weeks or even a few months for an insurance carrier to evaluate your claim and respond to a demand. I can’t dictate their pace. The point is — just because an injured worker makes a decision that he/she is ready to settle their claim, that does not mean the process will be immediate.

Third, it is important to understand that just because this friend, or this co-worker, or this neighbor, etc… got this specific amount, that does not translate to what you may receive. Facts are always different in every case. Litigation posture is different. Insurance carriers may be different. Injuries, even if to the same body area, are different and vary in extent of disability. Employers themselves are different in amounts they will pay and jobs they will offer. A big factor — wages of the injured worker, play a critical role in settlement. There are just too many factors that go into case value, than simply, “I hurt my shoulder, so did my buddy, so I should get what he gets”.

Finally, and more importantly, an injured worker must understand that settlements in workers’ compensation are fairly limited, in terms of payout, despite what you might hear. Why? The Workers Compensation Act limited recovery and made workers compensation benefits the EXCLUSIVE remedy when you are injured on the job. What does that mean? It means there is no pain and suffering, despite popular belief and what you may believe to be fair. With workers compensation benefits, you are entitled to wage loss benefits, payment of medical bills, and specific loss benefits, which only apply to amputation and loss of use injuries.  We hear a lot about pain and suffering damages in motor vehicle and slip and fall cases. Since these damages are unavailable in workers compensation, settlements in the six figure amounts are the exception, rather than the norm.
Generally speaking, you can expect a workers compensation settlement to be between two and five years of additional weekly wage loss benefits. Notice I said the word ‘generally’. Again, many factors go into this, such as work availability, extent of injury and disability, whether the injured worker had surgery, whether the injured worker is out of work or working light duty, whether restrictions are permanent or temporary, strength of case and evidence, insurance carrier and employer, etc… It’s a complicated process, which is why you should NEVER negotiate a settlement yourself. You will always be undercut and not provided the true value of your case.

Before you decide to settle your case, have a frank discussion with your attorney.  In most cases, settling a claim means settling the entire claim, which includes settling the right to wage loss benefits and medical benefits. In most cases, when you settle, your claim is finished in its entirety, including future medical treatment. It is absolutely vital to discuss your claim, your situation, and your treatment with your attorney before settling. Once you settle, it’s over. Period.  If your condition were to worsen after settlement, you need to understand that a Judge can not reopen your claim.  If you have not reached MMI (Maximum Medical Improvement) and you settle your case, any future medical treatment and expenses will become your sole, exclusive responsibility.

Other factors that effect settlement include: offsets/credits involving any unemployment compensation you may have received, offsets for Social Security Retirement (SSR) benefits; social security disability benefits, pension/severance benefits; short-term and long-term disability (STD/LTD) benefits, salary continuation, etc . . . Receipt of these types of benefits can reduce settlement value of your claim.

Finally, the most important factor that impacts your settlement value of your case is your actual compensation rate, which is based on your wages. Generally the main rules is this — the lower your wages, the lower the settlement value, and the higher your wages, the potential for higher settlement values. Fair? No. Reality, yes.

Settling your workers’ compensation case is a critical decision because of the impact on your workers compensation rights, entitlement to wage loss payments and medical benefits. You do not need to go it alone, nor should you. You can call Mooney & Associates today for a FREE consultation. Call us today at 1-877-632-4656 or email me direct at mab@mooney4law.com.