Clowes v. Workmen's Compensation Appeal Board

COLINS, Judge,

dissenting.

I must dissent from the scholarly opinion of the majority in this extremely troubling and difficult matter.

As noted by the majority, Dr. Berschling, whom the referee found credible, testified that the “claimant suffered no mental disability or injury prior to his transfer and change of duties” and, further, in Finding of Fact No. 10(i), “it was the progressive accumulation of traumatic experiences while in the night felony homicide division which caused claimant’s mental disability.” The referee then continued to state his legal opinion that there was insufficient evidence to prove claimant was subjected to abnormal working conditions for a compensable injury.

It is from this legal conclusion, affirmed by the majority, that I differ. The majority has correctly noted that “when a fact finder specifically states that a witness is credible, we must assume that all of the testimony of that witness is accepted as true.”

In reviewing the entirety of his credible testimony, we find that Dr. Berschling stated that, in his professional opinion, the increase in responsibilities and the change of duties connected to Clowes’ transfer from the vice division to the homicide division were the sole cause of Clowes’ mental illness. According to Dr. Berschling, Clowes experienced a progressive accumulation of traumatic experiences in the course of his *599duties as a homicide detective, and, as a result, Clowes developed post-traumatic stress disorder and severe depression. Dr. Berschling also opined that Clowes did not suffer from a mental illness prior to his transfer, and, had the transfer not occurred, he would not have developed the aforementioned mental conditions.1

Dr. Berschling also discussed specific work-related events which impacted on Clowes’ mental health, emphasizing Clowes’ investigations into the deaths of two individuals that he knew. Dr. Berschling testified as follows:

Q. Did you determine that there was any significance in his employment history as it related to the condition which you found him in.
A. During the course of his time on homicide ... he progressively deteriorated, and he described for me several emotionally laden situations which he ... felt finally pushed him over the edge.
Q. What were they.
A. He described for me ... at least five instances which were very, very troublesome to him. One was a shooting incident of an adolescent that had stolen a car, to discover that it was a policeman’s son. Another was the death of a judge’s daughter. A very difficult one for Mr. Clowes was the Pittsburgh Regatta accident in the summer of ’88 and going to the hospital to see the kids, and a trailer truck accident ... where a truck had apparently lost its brakes and just careened into some elderly gentlemen who just happened to be sitting there playing cards.
The thing that Mr. Clowes describes in — a lot of the qualitative feeling that he describes in these things are, one, he *600knew some of the people. For instance, the partner’s son. I think he had seen him 24 hours earlier and talked with him. He apparently had some familiarity or knowledge or friendliness with the judge’s daughter____

Deposition of Cheater Berschling, M.D., pp. 15-17.

In his testimony, Clowes described, inter alia, his discovery of the body of Patrick O’Connor, a person whom he had known for seven years, at the scene of an auto accident. He had been with that individual the day before the accident, and he was the first officer to view the body. Clowes’ testimony was augmented by the testimony of Detective O’Leary. Detective O’Leary testified that in his 25 years of police work, he had never known a police officer who was the first person to view the corpse of an individual with whom the police officer had a personal relationship. He also testified that Clowes saw Patrick O’Connor approximately three or four days per week and that he was like a son to Clowes. Detective O’Leary described the effect of that death on Clowes as follows:

Q. [D]id you form an opinion that his change of duties was part of the problem, if not the problem, his change of duties into doing homicide work.
A. I think it was, and that coupled with seeing Patrick that night, he just snapped.... [T]hat guy changed from the guy I knew for years to the guy that came into homicide, and then after Patrick, that wasn’t the same guy, that was like being in a room with a completely different person.

Deposition of Terrance P. O’Leary at 25.

This Court has held that a change of duties accompanied by an increase of responsibility can establish abnormal working conditions. Berardelli v. Workmen’s Compensation Appeal Board (Bureau of Personnel State Workmen’s Insurance Fund), 134 Pa.Commonwealth Ct. 450, 578 A.2d 1016 (1990), petition for allowance of appeal denied, 527 Pa. 625, 592 A.2d 46 (1991); Leo v. Workmen’s Compensation Appeal Board (Borough of Charleroi), 114 Pa.Commonwealth Ct. 6, 537 A.2d 399 (1988). While Clowes held the position of police officer before and after his transfer, the record demonstrates that Clowes’ job responsibilities increased and his duties changed *601substantially after he was transferred from the vice division to the homicide division. In our view, there is a vast qualitative difference between Clowes’ duties as a vice officer where he investigated only non-violent offenses and his duties as a homicide detective where he investigated only murders and fatal accidents.2

Moreover, it is clear from the testimony of Detective O’Leary that it is very rare for a police officer to discover the corpse of a person he or she had known. Clowes’ discovery of the body of Patrick O’Connor was pinpointed by Detective O’Leary as causing a sudden change in Clowes’ mental condition. In City of Scranton, this Court determined that because a police officer personally knew three murder victims whose deaths he was investigating, the amount of stress the officer experienced on the job was increased, and this increase of stress contributed to the existence of abnormal working condition. Similarly, Clowes’ discovery of the bodies of two persons whom he knew constituted unusual events that made his job more stressful than it had been.

I cannot agree with the majority’s conclusions that this case is distinguishable from City of Scranton. The instant matter contains objective evidence showing that Clowes, after his transfer to the homicide division of the City’s police department, developed a mental illness caused by his employment. The record is replete with objective evidence, found credible by the referee, showing a progressive deterioration of his mental health, caused solely by the increase in responsibility *602and the change in his job duties resulting from his transfer from the vice division to the homicide division of the City’s police department. The record further contains objective evidence, found credible by the referee, showing that Clowes experienced unusual events on the job that had a severe impact on his mental condition and made his job more stressful than it normally would have been. Hence, we should conclude that, because of objective evidence connecting Clowes’ mental illness to his employment, Clowes demonstrated that he suffered a psychic injury caused by abnormal working condition.

In Hershey Chocolate Co. v. Workmen’s Compensation Appeal Board (Lasher), 162 Pa.Commonwealth Ct. 23, 638 A.2d 336 (1994), we noted that under the Act, claimants with bona fide psychiatric injuries are treated differently from claimants with bona fide physical injuries. Because of this dual standard, Clowes’ burden of proving that he sustained a psychic injury was much higher than it would have been if he sustained a physical injury.3 However, the referee’s credibility determinations clearly establish that Clowes met this burden, and, therefore, benefits should be awarded.

. The City incorrectly argues that Dr. Berschling’s testimony was equivocal, because he testified that he thought Clowes' transfer to the homicide division caused his mental illness. An expert’s testimony is not' rendered equivocal if the expert testifies that he or she believes or thinks that the facts exist. Philadelphia College of Osteopathic Medicine v. Workmen's Compensation Appeal Board (Lucas), 77 Pa.Commonwealth Ct. 202, 465 A.2d 132 (1983). Therefore, we must conclude that Dr. Berschling’s testimony was unequivocal.

. We note that the instant case is distinguishable from our decision in Supinski v. Workmen’s Compensation Appeal Board (School District of Philadelphia), 133 Pa.Commonwealth Ct. 631, 577 A.2d 944 (1990). In Supinski, a special education teacher alleged that she sustained a psychic injury when she was transferred from a position where she taught retarded students to a position where she taught learning disabled children. We held that, while Supinski was transferred to a different classroom, she was not subjected to abnormal working conditions, since her job responsibilities remained essentially the same, and because she possessed a professional certification in special education. In the present case, however, it is clear from the record that Clowes' job responsibilities increased, and his job duties changed after his transfer from the vice division to the homicide division. Thus, Supinski does not control the outcome of the case.

. See Hershey Chocolate Co., 162 Pa.Commonwealth Ct. 23, 34 n. 2, 638 A.2d 336, 342 n. 2.