Payes v WCAB (Commonwealth PA State Police), __ A.3d __ (Pa. Supreme No. 50 MAP 2011), decided October 30, 2013
In Payes, the WCJ granted a state trooper workers’ compensation benefits in a mental/mental case, involving a single work-related event in which the trooper struck and killed a mentally disturbed woman, who ran in front of his patrol car, in an apparent attempt to commit suicide. On appeal, the Workers’ Compensation Appeal Board reversed, finding that the trooper was not injured by abnormal working conditions. The Commonwealth Court affirmed the Board’s reversal, finding that a police office is expected to witness horrible tragedies and motor vehicle accidents, rendering the events which took place in the case neither extraordinary or abnormal.
On appeal, the Supreme Court observed that the claimant had alleged a mental-mental claim, requiring him to demonstrate that the injury resulted from “abnormal working conditions.” In order for actual working conditions to be considered abnormal, the working conditions must be considered in the context of a claimant’s specific employment. However, the abnormal-working-conditions analysis does not end simply because the claimant generically belonged to a profession that involves certain levels or types of stress. Instead, the focus must be on the unique factual findings of the case. Furthermore, in order to establish abnormal working conditions, the claimant must show that the psychological injury has been objectively verified and that the causative working conditions were “abnormal,” in that he was subject to conditions to which an employee in his position is not normally subject.
Given that this case involved a single incident, the Supreme Court looked to whether that incident alone, and not any purportedly comparable sets of incidents, was abnormal. The Court noted that the WCJ found, based on credible evidence before him, that the type of incident in this case was not one to which state troopers are normally exposed. The Court observed that the WCJ’s finding was binding, unless proven to be arbitrary or capricious. Given that the finding was supported by substantial competent evidence of record, the Order of the Commonwealth Court was reversed and the case was remanded for a reinstatement of the WCJ’s decision granting the claim petition.
The Payes Opinion emphasizes the highly-fact sensitive nature of psychic injuries, which in turn, requires deference to the WCJ’s factual findings, on appeal. If an employer wishes to challenge the WCJ’s findings on a mental-mental claim, findings can only be overturned if they are arbitrary or capricious.
Phoenixville Hospital v WCAB (Shoap), __ A.3d __ (Pa. Supreme No. 32 EAP 2011, filed November 21, 2013).
In Phoenixville, the employer was seeking a modification of benefits based on a labor market survey (“LMS”). The claimant applied for all of the jobs identified in the LMS and did not receive an offer of employment. The testimony of the vocational expert was found credible, on the issue of the availability of the jobs at the time the survey was made. The WCJ ultimately denied the modification petition, finding that the claimant showed “good faith” by applying for the positions and that none of the jobs referred to her resulted in an offer of employment. The Board upheld the WCJ’s decision, noting that the claimant had produced credible evidence that the jobs were not available, and thus did not “exist in reality.”
The Commonwealth Court reversed, noting that whether the claimant had applied for and was offered a job, was not the focus of the analysis under Section 306(b). Instead, the critical inquiry was whether the jobs identified by the vocational expert were actually open and available to anyone having the claimant’s physical limitations and other qualifications, at the time of the LMS. In granting the modification, the Commonwealth Court found that it was of no relevance that the claimant had followed through on the job listings in “good faith.”
The Supreme Court reversed, finding that under Section 306(b), proof of substantial gainful employment must be based on the existence of meaningful opportunities for the claimant to obtain employment. Additionally, the jobs identified must remain open until such a time as the claimant is afforded a reasonable opportunity to apply for them.
The Supreme Court went so far as to criticize the Commonwealth Court’s holding, noting that it could lead to the absurd result of a vocational expert re-using one position in a number of different labor market surveys, when at most only one of the claimants can actually have the opportunity for “substantial gainful employment” based on the one job opening.
Through its Decision, the Supreme Court once again allows claimants to submit evidence regarding the experience pursuing the jobs identified in a LMS. A claimant also has the opportunity to submit evidence that he did not obtain employment because the position identified by the vocational expert was already filled by the time the claimant had a reasonable opportunity to apply for the job. If the job is already filled, the job does not “exist” to permit a modification of benefits.
The Supreme Court also observed that the WCJ has leave to decide whether a claimant had a reasonable opportunity to apply and did, in fact, apply for the jobs in the LMS (and whether the jobs were already filled). While the term “reasonable opportunity” was not defined, it can be assumed to mean from the time of issuance of the LMS up through the filing of the Modification Petition. Additionally, the case also keeps the Kachinskistandard of “good faith,” on the part of both the employer and claimant, in play under Section 306(b).