Rag (Cyprus) Emerald Resources, LP v. Workers' Compensation Appeal Board

850 A.2d 833, 2004 Pa. Commw. LEXIS 404

• Court: Commonwealth Court of Pennsylvania
• Decided: May 25, 2004
• Status: Published

Opinions

OPINION BY

Judge McGINLEY.

RAG (Cyprus) Emerald Resources, LP (Employer) petitions for review from an order of the Workers’ Compensation Appeal Board (Board) that affirmed the Workers’ Compensation Judge’s (WCJ) grant of Ronald A. Hopton’s (Claimant) claim petition.¹

Claimant worked as a beltman in the Cyprus Emerald Mine (Mine). On or about April 12, 1996, Claimant petitioned for compensation benefits and alleged that he “was subject [sic] to harassing comments of a homosexual nature by the employees [sic] mine foreman, Dominic Rossi, on 3 occassions [sic] from July 6 to 13, 1994.” Claim Petition, April 12,1996, at 1; R.R. at 3a. Claimant alleged that he suffered an “[a]ggrevation [sic] of a prior existing condition (Post Traumatic Stress Disorder, P.T.S.D.), resulting in a debilitating anxiety attack, rage, anger, depression and physical pain.” Claim Petition at 1; R.R. at 3a. Employer denied the allegations.

Claimant described the bantering that occurred in the Mine. “They [his co-workers] joked as like one guy would jump on another’s back and they would say look at those two queers or they would bend over and say someone is going to be jumping you.” N.T. 8/14/96 at 64; R.R. at 100a. In addition, Claimant testified about three particular episodes.

First Episode

On July 6, 1994, Claimant was working with supplies in the crosscut when Dominic Rossi (Rossi), Mine foreman, called him over to the jeep. Rossi said to Claimant, “[Y]ou have a nice butt, a real nice looking butt, come on up here [in the jeep] and sit down next to me.” Notes of Testimony, November 18, 1996, (N.T. 11/18/96) at 28-29; R.R. at 132a-133a. Claimant’s coworker, Allen Vozel, was present. As a result of this episode, Claimant was shaking, and “had a great desire to ... take him [Rossi] out.” N.T. 11/18/96 at 30; R.R. at 134a.

Second Episode

Claimant testified that on July 8, 1994, Rossi made similar comments and “was very sexually ... aggressive at that time. Very — in words as well as in characteristics, in tone, yes.” N.T. 11/18/96 at 31-32; R.R. at 135a-136a. This time, another employee, Joe Ross (Ross), was present. Ross testified that while he was driving Rossi and Claimant in a jeep, Rossi said to Claimant, “I’d like to bend you over a rail, over the jeep and f-you in the a — ■ until you bleed.” N.T. 8/14/96 at 32; R.R. at 68a. Claimant indicated that this episode triggered flashbacks to Vietnam, and the comments caused him a “great deal of pain.” N.T. 11/18/96 at 33 & 34; R.R. at 137a & 138a. .

Third Episode

On July 13, 1994, Rossi was in a discussion with Terry Rafferty, a belt foreman, and Rossi called Claimant into the office. Rossi said, “[B]oy, doesn’t he [Claimant] have a nice pair of legs.” N.T. 11/18/96 at 39-40; R.R. at 143a-144a. Claimant told Rossi to stop and left because he wanted to attack Rossi. Claimant elaborated, “As I was leaving he [Rossi] said, oh, I know what it is ... how would $5 do.... ” N.T. 11/18/96 at 40; R.R. at 144a.²

Claimant presented the deposition testimony of Greenbrier Almond, M.D. (Dr. Almond), a board-certified psychiatrist employed by the Veterans Affairs Department. Dr. Almond first saw Claimant following his hospitalization from September to October, 1994, and on a monthly basis thereafter. Dr. Almond and Claimant discussed his military service in Vietnam. Dr. Almond noted that Claimant “... was alarmed at some of the homosexual activities that he observed within his units. And he did recall a superior officer who was trying to solicit from his men and other experiences like this.” Deposition of Greenbrier Almond, M.D., November 5, 1998, (Dr. Almond Deposition) at 27; R.R. at 720a.

Claimant also described his work in the Mine. Dr. Almond stated that “the incident that brought him [Claimant] to us was following [sic] when a superior made harassing remarks, what he interpreted as harassing remarks to him which lead [sic] to flashbacks to Vietnam.” Dr. Almond Deposition at 29; R.R. at 722a. Dr. Almond opined that Claimant suffered from posttraumatic stress disorder (PTSD) “primarily related to his Vietnam experiences. And he had as a secondary stressor his experience in the mine.” Dr. Almond Deposition at 32; R.R. at 725a. Dr. Almond indicated that the work stressor was triggered by comments from his supervisor. Dr. Almond Deposition at 32; R.R. at 725a. Lastly, Dr. Almond noted that Claimant demonstrated many qualities consistent with a person with a paranoid personality disorder. Dr. Almond Deposition at 92; R.R. at 786a.³

Employer presented the medical deposition of Lawson F. Bernstein, Jr., M.D. (Dr. Bernstein), board-certified in psychiatry and neurology. Dr. Bernstein evaluated Claimant on two occasions and reviewed his records. Dr. Bernstein noted, “There were substantial differences between his [Claimant’s] rendition of the facts and the records that I reviewed.” Deposition of Lawson F. Bernstein, Jr., M.D., November 9, 1998, (Dr. Bernstein Deposition) at 30; R.R. at 880a. Moreover, Dr. Bernstein opined that Claimant had a “major depressive disorder with psychotic features” and a paranoid personality disorder. Dr. Bernstein Deposition at 39; R.R. at 889a.⁴ Dr. Bernstein stated that Claimant was capable of working. Dr. Bernstein Deposition at 40-41; R.R. at 890-891a. Dr. Bernstein characterized Claimant as a homophobic which was “part and parcel of his paranoid personality disorder.” Dr. Bernstein Deposition at 45-46; R.R. at 895a-896a.

At the WCJ’s request, Chester M. Berschling, M.D. (Dr. Berschling), a board-certified psychiatrist, evaluated Claimant.⁵ Dr. Berschling met with Claimant on two occasions in .February 1999, and reviewed his records. Dr. Berschling confirmed his opinion regarding Claimant’s PTSD that resulted from his Vietnam service. Deposition of Chester M. Berschling, M.D., November 22, 1999, (Dr. Berschling Deposition) at 60; R.R. at 1170a. Dr. Berschling testified:

JUDGE BLOOM: What effects did the time in the mine in July of 1994, if any have, [sic] on the posttraumatic stress condition suffered by Mr. Hopton?

THE WITNESS: It added fuel to the fire.

Dr. Berschling Deposition at 60-61; R.R. at 1170a-1171a.

The WCJ made the following relevant finding of fact and conclusion of law:

18. In reviewing all the psychiatric evidence presented, this Workers’ Compensation Judge finds that whether one adopts the theory of Dr. Bernstein or the theories of claimant’s treating psychiatrists and Dr. Berschling, the incidents involving Dominic Rossi are the causative factors of the claimant’s current disability. Whether the claimant had post-traumatic stress disorder from Vietnam or had a paranoid personality disorder, the main point to this Workers’ Compensation Judge is that the claimant was a working, functioning employee in the mines until harassed, aggravated and stirred up by the comments in the series of incidents involving Dominic Rossi. It is immaterial whether he has PTSD or personality disorder, he functioned before the Rossi series of incidents and is unable to function as an employee after the Rossi series of incidents. The incidents were not normal joking or merely uncivil behavior but were a course of conduct persisted in and clearly calculated to cause severe emotional distress on the part of the claimant and Mr. Rossi was successful in doing this.

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CONCLUSIONS OF LAW

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2. The claimant has met his burden of proof to establish by competent and credible evidence that there were abnormal working conditions in the defendant’s [Employer’s] mind [sic]. The factual situation was more than mere uncivil, crude, joking behavior. It was a course of conduct on the part of a supervisory employee clearly calculated to cause severe emotional distress.

WCJ Decision, April 30, 2001, Finding of Fact No. 18 at 5 and Conclusion of Law No. 2 at 6. The WCJ granted Claimant’s petition and awarded benefits starting July 21,1994.

The Board affirmed and concluded:

Contrary to Defendant’s [Employer’s] argument, this case is distinguishable from Guaracino where there was only a single incident of rude or uncivilized behavior in the newspaper trucking industry. The court noted that “[w]here, as here, the evidence demonstrates that the offensive behavior complained of is an isolated incident, we must conclude that an abnormal working condition has not been established.” [Philadelphia Newspapers, Inc. v. W.C.A.B.] [(]Guaracino[)], 554 [544] Pa. [203] at 215, 675 A.2d [1213] at 1219 [(1996)]. See also Grimes v. WCAB (Proctor & Gamble, Inc.), 679 A.2d 1356 ([Pa.Cmwlth.]1996) (which distinguished Guaracino on the basis that in that case there was not an isolated incident, but actions which constituted a continuing destructive presence within the work place over an extended period of time). Conversely, here, there were three separate incidents within 8 days of each other and no indication that the conduct was going to stop. Based on the content, intensity and duration of the sexually explicit comments, the WCJ did not err in finding that the comments made by Mr. Rossi to Claimant created an abnormal working condition. (Footnote omitted and emphasis added).

Board Decision, August 28, 2002, at 6-7.

On appeal,⁶ Employer contends that Claimant was not exposed to abnormal working conditions in Employer’s Mine and is not entitled to benefits for his alleged psychiatric injury. In particular, Employer asserts that the off-color comments in the Mine did not constitute abnormal working conditions. This Court must agree.

In Davis v. Workmen’s Compensation Appeal Board (Swarthmore Borough), 561 Pa. 462, 479, 751 A.2d 168, 177 (2000), our Pennsylvania Supreme Court determined:

In the absence of more definitive guidance, we conclude that it is the nature of the injury asserted, not the presence or absence of physical symptoms, that is controlling. Accordingly, we hold that the standard to be applied to claims for workers’ compensation benefits when the claimant asserts a psychic injury that has manifested itself through psychic and physical symptoms is the same standard that we articulated in Martin [v. Ketchum, Inc. 523 Pa. 509, 568 A.2d 159 (1990)]: such a claimant must prove by objective evidence that he has suffered from a psychic injury and that the psychic injury is other than a subjective reaction to normal working conditions. (Emphasis added).

In Davis, the Supreme Court essentially eliminated the prior distinction between mental/mental and mental/physical claims. Thereafter, any claimant who asserts a psychic injury must establish the psychic injury was other than a subjective reaction to normal working conditions.⁷

To determine whether actual working conditions are abnormal they must be examined in the context of the specific employment. U.S. Airways v. Workers’ Compensation Appeal Board (Long), 756 A.2d 96 (Pa.Cmwlth.2000). The question whether a claimant was subjected to abnormal working conditions is a mixed question of law and fact fully reviewable by this Court. Jeanes Hospital v. Workmen’s Compensation Appeal Board (Miller), 141 Pa.Cmwlth.308, 595 A.2d 725 (1991).

In Philadelphia Newspapers, Inc. v. Workmen’s Compensation Appeal Board (Guaracino), 544 Pa. 203, 675 A.2d 1213 (1996), Andrew Guaracino (Guaracino) worked for the Philadelphia Daily News as a delivery truck driver.⁸ On one occasion, Guaracino left the rear truck door open and a bundle of newspapers fell out. Guaracino requested credit for lost papers. When he reached the pick-up site Guaraci-no encountered his supervisors. The supervisors cursed him, “calling him ‘moth-erf_’ among other things.” Id. at 208, 675 A.2d at 1216. They followed him to the next stop and cursed at him again, this time with respect to a union matter. The manager called Guaracino “ ‘a f_idiot shop steward.’ ” Id. at 209, 675 A.2d at 1216. A referee⁹ determined that the derogatory remarks and obscene language were abusive. Guaracino was awarded benefits after the WCJ found he sustained a psychic injury caused by abnormal working conditions.

The Board reversed and noted “... that a single episode of harassment or mistreatment does not constitute abnormal working conditions.” Id. at 206, 675 A.2d at 1215 (emphasis added). This Court reversed the Board. Ultimately, our Pennsylvania Supreme Court reinstated the Board’s reversal and reasoned:

in assessing whether work conditions are abnormal, we must recognize that the work environment is a microcosm of society. It is not a shelter from rude behavior, obscene language, incivility, or stress. While we do not suggest that insensitive behavior is socially acceptable in the work place, it is unrealistic to expect that such behavior will not occur. Where, as here, the evidence demonstrates that the offensive behavior complained of is an isolated incident, we must conclude that an abnormal working condition has not been established. (Emphasis added).

Id. at 215, 675 A.2d at 1219.¹⁰

In Daneker v. Workers’ Compensation Appeal Board (White Haven Center), 757 A.2d 429 (Pa.Cmwlth.2000), Karen Daneker’s (Daneker’s) position was eliminated and she was assigned a different job title which resulted in a loss of seniority and a change in hours. When Daneker returned to work, after a work injury, she was shifted to yet another position. Further, three disciplinary charges were filed against her; ultimately, she was cleared. Daneker suffered a disabling major depression. She alleged her disability was the result of abnormal working conditions. This Court agreed with the WCJ that these events did not constitute abnormal working conditions:

The WCJ found that Claimant’s [Daneker’s] job change, shift change, loss of seniority, tense relationship with her coworkers, and subjection to disciplinary action did cause her stress, but in today’s volatile employment environment, these factors did not amount to abnormal working conditions. Based upon our independent review of the record, we must agree.

Id. at 433.

On the other hand, this Court has found that numerous episodes involving insults may give rise to abnormal working conditions, depending upon the situation and frequency. In Archer v. Workmen’s Compensation Appeal Board (General Motors), 138 Pa.Cmwlth.309, 587 A.2d 901 (1991), Larrastine Archer (Archer) claimed she was harassed by her supervisor when she was accused of not working even though she had finished her tasks. Archer believed she was singled out by the supervisor. The referee found that Archer was harassed up to twenty times per week. The referee awarded benefits, but the Board reversed. On appeal, this Court reinstated the referee’s decision.

This Court agrees with the Board that content, intensity, and duration are relevant to a determination of abnormal working conditions. However, based upon our Supreme Court’s precedent this Court is constrained to conclude the evidence fails to support a finding of abnormal working conditions in the present controversy. First, the medical evidence established Claimant had an injured psyche and was predisposed to mental problems. Second, this Court must also take into account the work environment. Although what .occurred in the Mine is certainly crude and unacceptable, the evidence reflected that this was normal in the mining industry.¹¹ The bottom line is that Claimant experienced a subjective reaction to Rossi’s comments. Third, as to frequency, Claimant cited three episodes when Rossi insulted him. However, the evidence established that the comments occurred over an eight-day period during Claimant’s sixteen-year mining career with Employer. As in Daneker, these three episodes do not establish abnormal working conditions within the context of a claim for a psychic injury based upon the content, intensity, duration, and frequency of the incidents.

As our Supreme Court commented in Guaracino, “it is unrealistic to expect that such behavior will not occur,” particularly in the rough and tumble coal mining industry.¹² This Court must conclude that any mental injury suffered by Claimant was a subjective reaction, and that Claimant failed to establish abnormal working conditions.¹³

Accordingly, this Court reverses.¹⁴

ORDER

AND NOW, this 25th day of May, 2004, the order of the Workers’ Compensation Appeal Board in the above-captioned matter is reversed.

FRIEDMAN, J., dissents and files opinion joined by LEAVITT, J.

LEAVITT, J., dissents and files opinion joined by FRIEDMAN, J.

1 . Claimant served in the United States Army from August 1964, through May 1967. He achieved the rank of Specialist, Fourth Class (E-4), and in 1966, he served in a transportation unit in Vietnam. According to Claimant, he was propositioned by his commanding officer. Upon discharge from the service, Claimant graduated college, and managed several fast food stores. Claimant started working for Employer in May 1978. See Notes of Testimony, August 14, 1996, (N.T. 8/14/96) at 47-62; Reproduced Record (R.R.) at 83a-98a.

2 . As a result of his comments to Claimant, Rossi was disciplined by Employer. Notes of Testimony, December 9, 1997, at 18; R.R. at 339a.

3 . Claimant also presented the deposition testimony of Herbert Thomas, M.D. (Dr. Thomas), a board-certified psychiatrist. On July 29, 1995, Dr. Thomas first saw Claimant, and he reviewed pertinent medical records. Claimant discussed his work situation and Vietnam experience with Dr. Thomas. Dr. Thomas opined that Claimant has a severe PTSD following his Vietnam experience. Deposition of Herbert Thomas, M.D., September 11, 1998 (Dr. Thomas Deposition) at 50; R.R. at 628a. Additionally, Dr. Thomas explained that Claimant’s condition was aggravated by Rossi’s remarks. Dr. Thomas Deposition at 52; R.R. at 630a.

4 .Dr. Bernstein indicated that Claimant did not have PTSD. Dr. Bernstein did not view the 1994 work episodes as the cause of Claimant’s psychiatric problems. Dr. Bernstein Deposition at 40; R.R. at 890a.

5 . Pursuant to this Court's order of November 22, 2002, the Board certified Dr. Berschling’s depositions to the Court as a supplemental original record.

6 . This Court’s review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen’s Compensation Appeal Board (Penn Installation), 139 Pa.Cmwlth.15, 589 A.2d 291 (1991).

7 . Prior to Davis, a claimant alleging a mental/mental injury, that is, that a psychological stimulus caused a psychic injury was required to establish that the mental injury was caused by abnormal working conditions. A claimant alleging a mental/physical injuiy, that is, that a psychological stimulus caused a physical injury, was required to establish "(1) a psychological stimulus which causes a physical injury which continues after the psychological stimulus is removed; and (2) a disability, i.e. loss of earning power, caused by the physical condition....” Old Republic Insurance Company v. Workers’ Compensation Appeal Board (Mascolo), 726 A.2d 444, 449 (Pa.Cmwlth.1999) (emphasis in original).

8 . He was also a shop steward in the Teamster’s Union.

9 . Referees are now referred to as workers' compensation judges.

10 . In McKinney v. Workers’ Compensation Appeal Board (Decision Data), 564 Pa. 669, 770 A.2d 326 (2001), our Pennsylvania Supreme Court directed that "[t]he order of the Commonwealth Court is reversed based upon the decision in Philadelphia Newspapers, Inc. v. Workmen's Compensation Appeal Board, (Andrew Guaracino), 544 Pa. 203, 675 A.2d 1213 (1996).” Dorothy McKinney (McKinney) was called to her supervisor’s office on January 19, 1992. After she entered the office, he locked the door, screamed at her, threw objects around the room, and threatened her. McKinney alleged that she suffered a work-related mental disability as a result of this episode. The WCJ found that the disability was caused by abnormal working conditions.

The Board reversed on the basis that McKinney described just one episode. This Court reinstated the WCJ’s decision and determined that "... it is not the criticism that Claimant [McKinney] received, even for a matter not related to her work duties, that constituted an abnormal working condition, but the entire confluence of events that occurred to Claimant on January 19, 1992.” McKinney [v. W.C.A.B.], 752 A.2d 928, 933 (Pa.Cmwlth.2000). Nevertheless, the Supreme Court reversed this Court's decision based on Guaracino. See McKinney, 564 Pa. 669, 770 A.2d 326.

11 . The crude humor, with homosexual overtones, was common in the Mine. Ross, Claimant’s co-worker, responded to the WCJ’s query:

JUDGE BLOOM: My point is ... you joke, you kid around and say, blow me, [sic] asshole and it’s accepted. What’s the difference between those terms and what Mr. Rossi said to Hoppy [Claimant]? Is there any difference?

A. [Ross]: I guess not.

N.T. 8/14/96 at 39-40; R.R. at 75a-76a. Further, supervisors used similar vulgarity "across the board” with other employees. Claimant even told his co-workers that he went out with a transvestite. N.T. 11/18/96 at 70; R.R. at 174a.

12 . This Court believes that the factual situation in the present matter is distinguishable from Zink v. Workers' Compensation Appeal Board (Graphic Packaging, Inc.), 828 A.2d 456 (Pa.Cmwlth.2003). There, Graphics Packaging, Inc. (Graphics) hired George Zink (Zink), a Vietnam veteran, under federal law that promoted employment opportunities for Vietnam War veterans. Zink petitioned for benefits due to an aggravation of a preexisting condition. He established that his PTSD was aggravated by working rotating shifts. Graphics had knowledge of Zink’s preexisting condition but still required him to work rotating shifts. Given the unique set of facts, this Court determined that Zink shouldered his burden of proving abnormal working conditions. The record here indicated that Employer was unaware of Claimant’s prior psychiatric problems.

13 . In Supervalu, Inc. v. Workers’ Compensation Appeal Board (Pettinato), 727 A.2d 1174 (Pa.Cmwlth.1999), Nicholas Pettinato (Pettinato), a dock supervisor, alleged that he sustained a work-related psychiatric injury. The WCJ found that Pettinato was abused and overworked on his job. Pettinato was awarded benefits, and Supervalu, Inc. (Supervalu) appealed. The Board affirmed.

This Court noted that Pettinato identified actual events which caused his psychiatric injury. Pettinato testified that he had to perform his duties plus those of a co-supervisor. However, this Court stated that "we agree with Employer’s [Supervalu s] argument that even if the WCJ found Claimant’s (Pettinato’s) testimony to be credible, the conditions that Claimant described do not constitute abnormal working conditions.” Id. at 1177. This Court reversed the Board’s order on the basis that insufficient evidence established Pettina-to’s psychic injury was other than a subjective reaction to normal working conditions. Here, as in Supervalu Inc., this Court must reach the same conclusion.

14 . This Court need not address Employer’s remaining issues, i.e. whether Claimant’s medical evidence was equivocal; whether Claimant was disabled from his alleged work-related psychiatric injury; and whether the WCJ erred when he failed to recuse himself.