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.

Mark Buterbaugh

Attorney representing injured workers and Social Security Disability clients in Pennsylvania and Maryland.