Smith v. Workmen's Compensation Appeal Board

632 A.2d 1033, 159 Pa. Commw. 171, 1993 Pa. Commw. LEXIS 643
CourtCommonwealth Court of Pennsylvania
DecidedOctober 19, 1993
DocketNo. 864 C.D. 1993
StatusPublished
Cited by4 cases

This text of 632 A.2d 1033 (Smith v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Workmen's Compensation Appeal Board, 632 A.2d 1033, 159 Pa. Commw. 171, 1993 Pa. Commw. LEXIS 643 (Pa. Ct. App. 1993).

Opinion

McGINLEY, Judge.

Lois Smith (Claimant) appeals from an order of the Workmen’s Compensation Appeal Board (Board) that reversed a referee’s decision granting total disability benefits for a psychic injury.

Claimant was employed, first as an interviewer, and subsequently as an Unemployment Claims Examiner I by the Commonwealth of Pennsylvania, Department of Labor and Industry, Bureau of Employment Security (Employer) between September 1, 1979, and October 2, 1987. Her promotion to Unemployment Claims Examiner I occurred on January 14, 1985. On October 4, 1987, while at her home, Claimant ingested an overdose of an anti-depressant and tranquilizing medication in an attempt to commit suicide.

On May 2, 1988, Claimant filed a claim petition for workers’ compensation benefits alleging that abnormal conditions at work caused major depression which led to her suicide attempt. Service of notice of the claim was made to Employer by the Department of Labor and Industry on May 9, 1988. [174]*174Employer denied the allegations in Claimant’s petition and a referee’s hearing was held.

In support of the claim petition Claimant testified on her own behalf and presented the testimony of several co-workers as well as the deposition testimony of two of her medical providers. Claimant stated that during the time of her alleged injury the computer systems in her office were being updated, there were only two claims examiners in the office, one shy of the normal three person staff, and she had been contacted twice in the previous three months by a State Representative inquiring about the status of a constituent’s claim. Claimant further testified that she is unable to perform the work activity required by her duties as a claims examiner. Claimant’s co-workers also testified concerning the circumstances in the office at the time of the alleged injury. The two medical -witnesses testifying on the Claimant’s behalf were Dr. J.B. Johnston, M.D. (Dr. Johnston), a licensed psychiatrist, and Mr. Bruce R. Weatherly (Mr. Weatherly), a professional counselor. Dr. Johnston testified that he diagnosed Claimant as suffering major depression. Dr. Johnston opined that Claimant’s psychiatric problems are work related and that she is precluded from returning to her former occupation as an unemployment claims examiner. Mr. Weatherly testified that he provided counseling services to her. Mr. Weatherly opined that Claimant is unable to return to work in the same capacity.

The referee found that “Claimant has been and remains disabled from performing her time-of-injury job as a direct result of the various stresses at work.... Referee’s Decision, December 19,1990, Finding of Fact (F.F.) No. 21. The Board reversed the referee’s decision concluding that “we cannot say that the stress complained of by the Claimant represents an abnormal condition.” Board’s Decision, March 19, 1993, at 4.

On appeal Claimant contends: 1) that the allegations in her claim petition should be deemed admitted due to Employer’s failure to file a timely answer pursuant to Section 416 of The [175]*175Pennsylvania Workmen’s Compensation Act (Act)1; 2) that she suffers from major depression precipitated by specific, identifiable and abnormal events and that there is no corroborating evidence to support the Board’s decision that Claimant’s psychiatric illness is a subjective reaction to normal working events; 3) that the referee erred in calculating her average weekly wage; and 4) that Employer’s appeal to the Board should have been stricken for failure to attach a copy of the referee’s decision.

Our scope of review is limited to a determination of whether constitutional rights were violated, whether an error of law was committed and whether the necessary findings are supported by substantial evidence. Boehm v. Workmen’s Compensation Appeal Board (United Parcel Services), 133 Pa.Commonwealth Ct. 455, 576 A.2d 1163 (1990).

Initially, Claimant contends that the allegations of her claim petition should be deemed admitted due to Employer’s failure to file a timely answer as required by Section 4162. She relies on Hildebrand v. Workmen’s Compensation Appeal Board (Fire Department/City of Reading), 111 Pa.Commonwealth Ct. 24, 532 A.2d 1287 (1987) wherein this Court determined that where an employer files an untimely answer the allegations in the claim petition shall be deemed admitted. Unlike the present case the claimant in Hildebrand had properly objected to the untimely filing of the answer. Here, the issue was not raised before the referee until June 21, [176]*17619893, fourteen months after Employer’s answer had been filed and all evidence was received. Further, a review of the record indicates that Claimant failed to raise this issue before the Board. Pa.R.A.P. 1551 provides in pertinent part that “[n]o question shall be heard or considered by the court which was not raised before the government unit.... ” Because Claimant failed to preserve this issue by timely objection before the referee and on appeal before the Board we are precluded from reaching its merits. See Williams v. Workmen’s Compensation Appeal Board (Montgomery Ward), 127 Pa.Commonwealth Ct. 587, 562 A.2d 437 (1989); Hemer v. Workmen’s Compensation Appeal Board (Phillis and J. Miller Express., Inc.), 71 Pa.Commonwealth Ct. 174, 454 A.2d 225 (1983).

Claimant next contends that she suffers from major depression precipitated by specific, identifiable and abnormal events and that there is no corroborating evidence to support the Board’s decision that her psychiatric illness is a subjective reaction to normal working conditions. In Marsico v. Workmen’s Compensation Appeal Board (Department of Revenue), 138 Pa.Commonwealth Ct. 352, 588 A.2d 984 (1991), we noted that Pennsylvania has adopted an objective test for determining whether a psychic injury is compensable. Id. at 358, 588 A.2d at 987. Absent physical injury as a precursor a claimant must prove actual extraordinary events occurred at work which caused the injury, or that abnormal working conditions over a long period of time caused the injury. Id. The question of whether a claimant’s exposure to abnormal working conditions caused a work-related disability is a mixed question of law and fact, which is reviewable by this Court. Jeanes Hospital v. Workmen’s Compensation Appeal Board (Miller), 141 Pa.Commonwealth Ct. 308, 595 A.2d 725 (1991), petition for allowance of appeal denied, 532 Pa. 648, 614 A.2d 1144 (1992). Abnormal working conditions must be proved by objective evidence and cannot be established by Claimant’s subjective reactions to normal working conditions. Martin v. Ketchum, Inc., 523 Pa. 509, 519, 568 A.2d 159, 164-165 (1990) [177]*177(citing Russella v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jonathan Sheppard Stables v. Workers' Compensation Appeal Board
739 A.2d 1084 (Commonwealth Court of Pennsylvania, 1999)
Kelly v. Workmen's Compensation Appeal Board
647 A.2d 275 (Commonwealth Court of Pennsylvania, 1994)
Williams v. Workmen's Compensation Appeal Board
646 A.2d 633 (Commonwealth Court of Pennsylvania, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
632 A.2d 1033, 159 Pa. Commw. 171, 1993 Pa. Commw. LEXIS 643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-workmens-compensation-appeal-board-pacommwct-1993.