Vactor v. Workers' Compensation Appeal Board (Glenn's Dairy, Inc.)

699 A.2d 834, 1997 Pa. Commw. LEXIS 371
CourtCommonwealth Court of Pennsylvania
DecidedAugust 20, 1997
StatusPublished
Cited by3 cases

This text of 699 A.2d 834 (Vactor v. Workers' Compensation Appeal Board (Glenn's Dairy, Inc.)) 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
Vactor v. Workers' Compensation Appeal Board (Glenn's Dairy, Inc.), 699 A.2d 834, 1997 Pa. Commw. LEXIS 371 (Pa. Ct. App. 1997).

Opinion

DOYLE, Judge.

Richard Vactor (Claimant) appeals an order of the Workers’ Compensation Appeal Board, which affirmed the decision of a workers’ compensation judge (WCJ) granting Claimant benefits for a closed period of time, and then suspending and ultimately terminating his benefits.

Claimant was employed by Walter Glenn (Employer),1 owner of Glenn’s Dairy, Inc., as a convenience store cashier. On September 21, 1993, when Claimant was working alone [836]*836in the store, an armed and masked bandit entered and demanded that Claimant give him money. Claimant tried to comply with the robber’s demands and open the cash register, but, afraid of being shot, he was excited and could not release the cash drawer. Although Claimant was behind a plexig-lás shield which enclosed the cashier’s area, the robber, apparently frustrated by Claimant’s delay in emptying the cash register, reached through a small, rectangular opening in the shield and fired two rounds at Claimant. One round grazed Claimant and the other entered his left leg. Claimant managed to call 911 and was, subsequently, transported by ambulance to the hospital. He was discharged from the hospital the day after the shooting.

On November 22, 1993, Claimant filed a claim petition seeking total disability benefits for the gunshot wound to his left leg, and the matter was heard before the WCJ.

At the hearings, Claimant testified as to the facts of the shooting described above. Claimant further testified that he was mentally unable to return to his employment. He explained that he was “too seared to go back” to his job (Notes of Testimony, 4/4/94, at 15; Reproduced Record at 15a), and feared that he might be robbed and shot again. Claimant testified on cross-examination, however, that Employer informed him that his cashier job remained available but that he told Employer that he was never returning to that job.

Employer testified that, on or about October 12,1993, he told Claimant that his job at the convenience store was still available, but that Claimant never returned to work. Employer stated that even as of the date of the hearing, April 4, 1994, Claimant’s job remained available. Also, Employer presented the medical report of Dr. Chris Kahlenbom, dated March 25, 1994, who had examined Claimant at the request of Claimant’s and Employer’s counsel. Dr. Kahlenborn opined that Claimant was doing well and that the injury did not preclude him from doing any activity whatsoever.

Considering the above, the WCJ determined that Claimant was totally disabled from the gunshot wound for the closed period from September 22, 1993, to October 12, 1993, and granted Claimant benefits of $154 per week for that period of time. However, the WCJ found that Claimant refused available work within his abilities when Claimant failed to return to his job with Employer, and, accordingly, suspended Claimant’s benefits, effective October 13,1993. Based on Dr. Kahlenborn’s opinion, the WCJ further found that Claimant’s disability terminated on March 25,1994.

Claimant appealed the WCJ’s order to the Board, asserting that fear of returning to his employment, caused by the work-related robbery incident and gunshot wound, constituted good cause for his failure to return to his job with Employer. The Board, however, affirmed the WCJ and concluded that Claimant did not sustain his burden of proving a mental injury within the standard articulated by our Supreme Court in Martin v. Ketchum, 523 Pa. 509, 568 A.2d 159 (1990). The Board indicated that Claimant had to demonstrate that he was subjected to abnormal working conditions, and had to establish, through expert medical testimony, the connection between those abnormal conditions and his injury. Because Claimant presented only his own lay testimony in support of his petition, the Board determined that Claimant did not sustain his burden of proving a mental injury. This appeal followed.

On appeal, Claimant contends that (1) the WCJ’s decision to suspend claimant’s benefits was not supported by substantial evidence, and (2) the suspension was improper because Claimant’s fear of being shot was a proper reaction to an abnormal working condition and justified his refusal to return to work. Claimant states in his brief that he stipulated to a closed period of disability (Claimant’s Brief at 11), and asks this Court for the following relief:

[Claimant asks [the] Commonwealth Court to reverse the Board and grant him no more than 52 weeks of compensation benefits or no less than benefits from September 21, 1993 through March 25, 1994, or to remand this case with instructions to [837]*837enter an award for [C]laimant for a specified period of disability.

(Claimant’s Brief at 12.)

The law is clear that a claimant’s benefits may be suspended when the WCJ finds that the claimant’s earning power is no longer affected by his or her disability. Pieper v. Ametek-Thermox Instruments Division, 526 Pa. 25, 584 A.2d 301 (1990). Benefits are generally suspended where an employer offers replacement employment or is able to secure other employment that provides the claimant with income equal to or greater than his or her preinjury job. Id.

In this case, the WCJ found that Claimant was offered work within his physical and vocational abilities by Employer and that Claimant refused to accept that position without any good faith reason and, accordingly, the WCJ suspended Claimant’s benefits. Claimant, however, argues that the suspension was erroneous, because his fear of returning to work, and possibly being shot a second time, constitutes a psychological injury that precludes him from returning to his former employment.

Where a claimant asserts that he sustained a mental injury caused by a mental stimulus, the claimant must prove either “(a) that actual extraordinary events occurred at work which caused the trauma and that these specific events can be pinpointed in time, or (b) that abnormal working conditions over a longer period of time caused the injury.” Blecker v. Workmen’s Compensation Appeal Board (Pennsylvania Human Relations Commission), 141 Pa.Cmwlth. 317, 595 A.2d 729, 732 (1991). But, in a case where a physical stimulus causes a mental injury, the heightened burden of proof explained in Martin is inapplicable. Instead, a claimant alleging a mental injury from a physical stimulus need only demonstrate that the physical stimulus caused the injury. Whiteside v. Workmen’s Compensation Appeal Board (Unisys Corp.), 168 Pa.Cmwlth. 488, 650 A.2d 1202 (1994), petition for allowance of appeal denied, 544 Pa. 650, 664 A.2d 978 (1995). In other words, a claimant’s burden in a physical-mental case is exactly the same as the burden generally used to determine workers’ compensation eligibility: that the injury arose in the scope of employment and is related thereto. Bell v. Workmen’s Compensation Appeal Board (Allegheny County Housing Authority), 152 Pa. Cmwlth. 636, 620 A.2d 589 (1993).

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699 A.2d 834, 1997 Pa. Commw. LEXIS 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vactor-v-workers-compensation-appeal-board-glenns-dairy-inc-pacommwct-1997.