Martin v. Ketchum, Inc.

dissenting.

I dissent.

These two cases raise questions concerning the standards to be applied in granting workmen’s compensation benefits for a mental disability. The decision of the majority in these cases violates the clear language, meaning and intent of the Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1603, and will work a substantial injustice to numerous deserving claimants.

In the case at No. 54 W.D. Appeal Docket 1988, appellant Jean Martin’s husband, Charles Martin, was employed by Ketchum, Inc., as Vice President and Supervisor of Campaigns. In 1979, he conducted a highly successful fundraising campaign for the University of North Carolina. On his next assignment he was sent to the University of Michigan to handle a similar campaign. There he encountered difficulties, and at the same time became concerned about certain personnel changes in Ketchum’s home office in Pittsburgh. Martin was removed from the Michigan job and returned home, where he was demoted and assigned a very small campaign for the Salvation Army in Pittsburgh. This task was frustrating for him. Some time in 1980, he began to see a psychiatrist. Some months later, on February 5,1981, Charles Martin shot himself to death at his desk at the Salvation Army building.

His widow claimed workmen’s compensation benefits, alleging that his death was the result of work-related mental disability. The referee agreed, finding that Martin’s mental condition was aggravated or precipitated by actual, not imagined employment events, and was the result of an irrational frenzy. The referee granted fatal claim benefits to appellant. The Board affirmed, but, on the appeal by Ketchum, Commonwealth Court reversed.

Commonwealth Court’s decision reversing the award of benefits was confusedly supported by its “abnormal working conditions” rule. The court noted that although a suicide caused by work-related mental disability is compen*524sable under University of Pittsburgh v. Workmen’s Compensation Appeal Board (Perlman), 49 Pa.Commw. 347, 405 A.2d 1048 (1979), under Hirschberg v. Workmen’s Compensation Appeal Board (Department of Transportation), 81 Pa.Commw. 579, 474 A.2d 82 (1984), a claimant must have objective evidence of conditions that are “abnormal, i.e. actual, rather than merely perceived or imagined.” Opinion of the Court at 3 (Oct. 30, 1987) (emphasis in original). Commonwealth Court went on to state that the referee in the instant case had not made a specific finding that the demotion and campaign events had constituted abnormal events. The court then held that, as a matter of law, the conditions that caused Charles Martin’s psychic injury were not “so abnormal or unusual as to impose workmen’s compensation liability upon his employer.” Id. at 3-4.

In the case at No. 556 E.D. 1987, appellant, Edward Benesky, had been employed for 10 years as a full-time police officer when he was involuntarily committed to a psychiatric ward, and was diagnosed as a paranoid schizophrenic. After his release, appellant Benesky briefly resumed work as a police officer, but was unable to continue. Thereafter he filed a claim for compensation benefits, alleging that his paranoia was a work-related injury resulting from job stress. The referee made the following finding regarding one of appellant’s experiences as a police officer:

[Appellant] became extremely upset when he discovered a little baby that was badly beat up and black and blue. The Referee noted that [appellant] was very emotional as he described this incident and it does seem to have some effect upon him.

Referee’s Finding of Fact No. 7 (Jan. 7, 1985). The referee found that appellant Benesky was disabled and that his disability was work-related. Nevertheless, the referee dismissed the claim because appellant had failed to prove that he had been exposed to “abnormal working conditions.” Id. Findings of Fact Nos. 7, 9, 12, 15. On appeal, the Board affirmed, relying on Hirschberg, supra, for the proposition *525that “[e]xposure to only normal working conditions resulting in a [mental] disorder is not a compensable injury under the Act.” Opinion of the Board at 2-3 (Mar. 20, 1986).

On review before Commonwealth Court, appellant Benesky argued that the “abnormal working conditions” rule was inconsistent with the spirit of the Act and hence should be changed. Commonwealth Court found that this issue had not been preserved for appeal because appellant had failed to raise it before the Board. I agree with the majority that Commonwealth Court erred in failing to address the merits of this issue because there is evidence of record that appellant did, in fact, raise this issue before the Board.

Both of these cases raise essentially the same important issue. Both appellants have asked us to consider the correctness and justice of the rules that Commonwealth Court has developed in this area of the law.

The majority, by affirming the decisions of Commonwealth Court herein, and by adopting the “abnormal working conditions” rule has substantially limited the class of persons who will be able to recover compensation benefits for mental disability claims. The Act makes no distinction between mental and physical disabilities, yet the majority exhibits an unarticulated but palpable bias against claims of mental disability as contrasted with physical disability. I believe that if the normal work events involved in Martin had led to a heart attack, instead of a mental breakdown that led to suicide, appellant would have been granted benefits for her husband’s death. Our rule in heart cases only requires proof that the heart injury proceeded from the claimant’s normal work. Krawchuk v. Philadelphia Electric Co., 497 Pa. 115, 125, 439 A.2d 627, 632 (1981). In Martin, the referee found that appellant proved precisely the same thing, i.e., actual events that precipitated the breakdown.

In Benesky, appellant presented competent, unequivocal medical evidence that his paranoid schizophrenia was caused by stress to which he was subjected in the course of *526his employment as a police officer. That stress took the form of specific work events, including the child abuse incident. If he had suffered a heart attack, he would have collected compensation.

All injuries (physical or mental) occurring “in the course of employment” that are “related thereto” are compensable under our compensation coverage formula. Nothing in the language of section 301(c)(1) of the Act1 can be construed to exclude these workers, who suffered mental injuries, from coverage. Thus, the majority’s imposition of the “abnormal working conditions” requirements in these mental injury cases is an impermissible judicial amendment to the Workmen’s Compensation Act.

In the seminal case of Thomas v. Workmen’s Compensation Appeal Board (Atlantic Refining Co.), 55 Pa.Commw. 449, 423 A.2d 784 (1980), Commonwealth Court determined that a claimant had not proved a compensable injury because the only event pinpointed as the source of his mental disability was a non-work-related event, specifically a news report of a refinery fire. The court went on to note that the claimant’s “fear” of a traumatic work incident similar to one that had occurred years earlier was a completely subjective reaction that was not related to any harm that was objectively measurable. Id. at 453-56, 423 A.2d at 787-88. Subsequently, in Hirschberg, supra, Commonwealth Court held that more than subjective reaction to normal working conditions must be shown to establish a compensable mental disability. In Hirschberg, supra, Commonwealth Court determined that a worker’s honest, but mistaken, perception that his supervisor had harassed him could not give rise to a compensable injury. Commonwealth Court rejected the *527“subjective” standard of cases such as Deziel v. Difco Laboratories, Inc., 403 Mich. 1, 268 N.W.2d 1 (1978), which had held that claimants could recover from mental injuries which were the result merely of a perceived work environment (e.g., which were based on delusions) rather than an actual work environment. The Hirschberg court held that a claimant must show “actual, and not merely perceived or imagined, ‘employment events.’ ” Hirschberg, 81 Pa. Commw. at 583, 474 A.2d at 84-85.

Contrary, however, to the Martin panel’s statement, Hirschberg contains no reference at all to the concept of “abnormal” working conditions. The Hirschberg court did reject a “subjective reaction” standard in favor of an objective standard, but the triggering work events to which the standard was to be applied were not required by the court in Hirschberg to be any more than actual work events.

In other cases, Commonwealth Court awarded benefits to claimants who could point to actual work events that precipitated mental disability. In Bevilacqua v. Workmen’s Compensation Appeal Board, 82 Pa.Commw. 511, 475 A.2d 959 (1984), a worker who had encountered increased responsibility on a new job was awarded benefits when mental disability resulted. In Allegheny Ludlum Steel Corporation v. Workmen’s Compensation Appeal Board, 91 Pa.Commw. 480, 498 A.2d 3 (1985), increased paperwork, loss of an assistant and an accumulation of work were sufficient to support a finding of compensability. In McDonough v. Workmen’s Compensation Appeal Board (Department of Transportation), 80 Pa.Commw. 1, 470 A.2d 1099 (1984), and Bell Telephone Company of Pa. v. Workmen’s Compensation Appeal Board (DeMay), 87 Pa. Commw. 558, 487 A.2d 1053 (1985), mental injuries resulting from stressful conditions that included public reprimands by supervisors were found compensable. In Evans v. Workmen’s Compensation Appeal Board (Anchor Hocking Corp.), 87 Pa.Commw. 436, 487 A.2d 477 (1985), however, an industrial engineer had difficulty from the start of his employment in completing his work. Commonwealth Court *528in that case determined that his subsequent mental disability was not work-related where the claimant was disabled because he “felt” that his job was threatened, but where the record revealed that this fear was unfounded.

All of these cases were purportedly decided in reliance on the same distinction between “normal” and “abnormal” conditions. A close look at Commonwealth Court’s language, however, and the facts of the individual cases supplies more accurate definition of the court’s vocabulary. In those cases, Commonwealth Court actually seemed to be looking for changes in the status quo because they stood out in relatively high relief against the landscape of the job. These changes — new positions, disciplinary measures, new assignments, loss of assistants — were not uncharacteristic of the occupations of the injured workers; they could certainly be dubbed “normal” happenings. They were, however, work events that were seemingly more easily and objectively identifiable among the multitude of everyday work events. (This is reminiscent of the need to define “accident” before the statute was amended to eliminate the accident requirement.) Thus, I conclude that Commonwealth Court initially and properly approached “subjective” mental disability claims by emphasizing the distinction between actual and imagined workplace stresses as a way to pinpoint causation.

In Evans and Thomas, supra, the denial of benefits was clearly based on Commonwealth Court’s determination that the claimant was disabled by a subjective fear that had no foundation in fact and connection to the actual work environment. The court was looking merely for some objective evidence of work connection. A noticeable change in the status quo is capable of being pinpointed more easily as a causal factor. The focus of the court’s concern was not the “abnormality” of the stressful condition; that is, the court did not equate “abnormal” with the actual and the “normal” with the imagined. Rather, the essence of the court’s analyses was the distinction between the actual and the imagined. Actual, concrete, describable work events that *529could be located in time and space, and for which “objective” evidence could be available, were the sine qua non.

This test was not consistently applied at all times. The court in Moonblatt v. Workmen’s Compensation Appeal Board (City of Philadelphia), 85 Pa.Commw. 128, 481 A.2d 374 (1984), planted the seeds of the decisions that led to the majority’s ruling today in the instant actions. In Moonblatt, Commonwealth Court determined that a lawyer who was disabled due to a work situation that included inadequate office space and help and a heavy caseload could not collect compensation because such conditions characterized the work of many lawyers. Id. at 130, 481 A.2d at 375. On the facts in Moonblatt, it was clear that the claimant could point to workplace events and conditions in his new position that triggered his breakdown and that were somewhat different from the ones the lawyer had previously experienced. Instead of holding consistently with Bevilacqua, supra, and McDonough, supra, that changes in, or specific pressures from, the workplace established the work connection, Commonwealth Court sought to compare the claimant with other workers in the same occupation.

The actual source of the “abnormal working conditions” language occurred not in any majority opinion of the Commonwealth Court, but in a concurring and dissenting opinion of Judge Doyle in the DeMay case, supra. Judge Doyle concurred in the denial of benefits to DeMay and dissented from the grant of benefits in a companion case. Pertinent to the cases at bar was Judge Doyle’s formulation of the test he would have required the referee to apply on remand. He would have required a specific finding that the allegedly stressful conditions that produced the mental disability were “abnormal for the type of job claimants were performing.” 87 Pa.Commw. at 569, 487 A.2d at 1058 (Doyle, J., concurring and dissenting). Judge Doyle went on to opine as follows:

By holding that a high stress work environment is, in and of itself, a sufficient work related abnormality, the *530majority creates a dangerous precedent. Many types of jobs are, by their very nature, high stress. Such occupations as that of an air traffic controller, a school teacher in a ghetto area, or a police officer, for example, may well be viewed as high stress; but for these particular positions high stress is normal.
It is my view that for a high stress working environment to constitute a legally sufficient abnormal working condition there must be a finding either that claimant’s work performance (as distinguished from the mere job description) was unusually stressful for that kind of job or a finding that an unusual event occurred making the job more stressful than it had been.

Id. at 569-70, 487 A.2d at 1058-59 (emphasis in original).

Thus, the “abnormal working conditions” rule has had a murky genesis, to say the least. In addition, the decisions reviewed above and cited as examples of the application of the “abnormal working conditions” rule were decided without reference to it by name or in substance. Commonwealth Court made a significant, and in this writer’s opinion, an erroneous, shift from a standard that requires evidence of a connection between a worker’s disability and an actual work event, to an inquiry about whether the individual worker is “abnormal” because he or she has suffered mental disability under conditions where the average worker does not. The majority of this Court compounds that error by adopting the latter standard, and it does so without addressing how that standard complies with the spirit of the Workmen’s Compensation Act.

I believe that we are now in dangerous territory. No longer is the Court merely addressing the very real problems of proof of mental injury. Instead, the Court has adopted a test whereby the courts, as a matter of law, will judge whether a particular employee’s mental fortitude is normal. Because most police officers, most production line workers, and most advertising executives do not have mental breakdowns when confronted with particular stressful *531events, the Court has deemed, in effect, that those individuals who do suffer mental disabilities should have been able to withstand these pressures.

The danger here is that where normal working conditions, especially those of police officers, are of admittedly “high stress,” individual claimants will succeed only if they show that they were confronted with virtually unimaginable and unpredictable events. Ultimately, the test will impose a standard of purported psychological normalcy. Even in cases where the referee finds that actual events triggered an actual injury, the claimant cannot recover. Although questionably qualified to do so, the majority would set itself (and compensation authorities) up to judge what kinds of stresses a “normal” police officer, advertising executive, or factory worker should be able to tolerate without breaking.

Clearly, we do not set up this kind of requirement in the realm of physical injury. The Workmen’s Compensation Act no longer requires that a claimant be injured by “accident”, and it has never required that the events or conditions causing physical injury be more than normal working conditions. The fact that other employees were not physically injured under particular circumstances that led to one claimant’s physical injury is not relevant. The most recent applications of the test adopted today by the majority indicate that substantial injustices are being done to claimants who produce solid evidence of employment connection and who presumably would have qualified for compensation under the Commonwealth Court’s initial version of the test for work-related mental disability.

The decision of the majority is at odds with the legislature’s intent and the purpose of the compensation statute. The statute is intended to provide sure and efficient relief to those disabled because of their work. This humanitarian purpose is accomplished in part by foregoing a tort compensation scheme based on individual loss, in favor of a more generalized wage-replacement scheme. The statutory system, however, has always included important elements of individualization through which the system responds to the *532differences and idiosyncrasies of individual workers. Thus, we have always, at least as far as physical injuries are concerned, taken workers as we find them. The decision of the majority herein directly contravenes this spirit and significantly shrinks the numbers of claimants who will recover for their disabilities.

We must reject the attempt to explain results in individual cases by reliance on the nostrum that a claimant has failed to show conditions “so abnormal” as to justify payment by the employer.

Accordingly, I dissent, and would reverse the orders of the Commonwealth Court denying workmen’s compensation benefits to the appellants herein.

. Section 301(c)(1) provides in relevant part:

(1) The terms "injury" and "personal injury,” as used in this act, shall be construed to mean an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto____ The term "injury arising in the course of his employment,” ... shall include all other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer ...

77 P.S. § 411(1).