Background of Mental Claims in Pennsylvania

In Pennsylvania, there are generally three types of mental (psychiatric) injury claims: 1) physical/mental; 2) mental/physical; and 3) mental/mental.  See Ryan v. WCAB (Cmty. Health Services), 707 A.2d 1130 (Pa.Cmwlth. 1998).  Of the three types of potential work-related mental injuries, the mental/mental injury has always held the highest burden of proof for an injured worker as it has required the injured worker to prove an abnormal working condition.

The burden of proof for a mental/mental claim as outlined by the Supreme Court of Pennsylvania was the injured worker had to show the mental injury “must be caused by actual objective abnormal working conditions, as opposed to subjective, perceived or imagined employment events.”  Martin v. Ketchum, Inc., 568 A.2d 159 (Pa. 1990).  Meaning, an objective outsider must believe the working condition to be abnormal and an injured workers’ specific sensitivities would not allow a normal working condition to be considered abnormal under the law.  The finding of an abnormal working condition is highly fact specific and the analysis of those facts must be based on “content, intensity, duration and frequency of offending behavior.”  See Payes v. WCAB (Commonwealth PA State Police), 79 A.3d 543 (Pa. 2013); RAG (Cyrpus) Emerald Resources, LP v. WCAB (Hopton), 912 A.2d 1278 (Pa. 2007).

For a mental/mental injury to be found compensable, three elements must be met:  1) the injured workers’ psychological injury has been objectively verified, 2) it has been traced to an identifiable source, and 3) that incident alone, and not any purported comparable set of incidents, was abnormal.  See Payes.

The inherent risk associated with a type of employment is not a controlling factor in determining abnormal working conditions.  Therefore, first responders such as police officers can be found to have a mental/mental injury despite the inherent danger of their jobs.  See Payes.  Further, in analyzing an abnormal working condition, the comparison must be made between the claimant and other members of the profession (police v. police, firefighter v. firefighter, etc.) See Washington v. WCAB (Commonwealth of Pa. State Police), 11 A.3d 48 (Pa.Cmwlth. 2011).

Steve Russo v. Upper Darby Township

Recently, the Commonwealth Court, in Steve Russo v. Upper Darby Township (WCAB), No 2093 C.D. 2024), has further explained the requirements for finding an abnormal working condition. 

The Claimant (Russo) was a police officer for the Defendant for fourteen (14) years.  On November 20, 2020, the Claimant was injured while retaining a violent suspect.  The suspect subsequently died as a result of the altercation with the Claimant.  The Claimant suffered minor physical injuries and subsequently returned to work at full duty.  After his return to work, the Claimant’s mental state worsened after incidents involving finding dead bodies and stand offs with suspects and he started treating with a psychologist.

The WCJ denied Claimant’s Petitions and held that the Claimant had failed to sustain his burden under both the physical/mental and mental/mental analyses.  The Appeal Board affirmed the WCJ’s decision and Claimant appealed to the Commonwealth Court.

With regard to the mental/mental claim, the Court addressed the Claimant’s argument that his violent struggle with the suspect resulting in the suspect’s death constituted an abnormal working condition that led to the Claimant’s development of PTSD.  The Claimant relied on the holdings in Payes to support his argument.  In Payes, the Supreme Court held that a state trooper had endured an abnormal working condition.  In making this determination, the Court analyzed the specific facts of the claim and found that abnormal working conditions did not require a “unique” working condition and a single extraordinary event could constitute an abnormal working condition.  Payes at 556, n. 8.

The Commonwealth Court in Russo held that the Claimant’s PTSD diagnosis and disability were caused by rare and objectively abnormal events for a police officer.  The Court noted that the WCJ failed to consider the “full convergence of events.”

The Court specifically took umbrage with the WCJ’s separation of each element of the entire work incident noting that each part, taken by itself, could be considered a normal working condition, however, when taken as a whole, they become an abnormal working condition.  Following the reasoning in Payes, the Commonwealth Court in Russo held that “when two or more dangers converge into a highly unusual event,” “the event must be analyzed as a whole in order to determine whether it constitutes an abnormal working condition.”  After utilizing this analysis, the Commonwealth Court found the Claimant had sustained his burden for a mental/mental claim and remanded for granting of the Claimant’s Petitions.

Effect on Mental/Mental Claims Moving Forward

The holding in Russo further erodes the injured worker’s burden in a mental/mental claim.  Whereas previously an abnormal working condition was considered a very high burden, the Court is now allowing review of all elements surrounding the injury as a whole instead of just the sole incident causing the injury itself.  Even though the specific incident causing the traumatic result may seem normal, the Court now will look at all events leading up to and happening after the incident to see if, as a whole, they add up to an abnormal working condition.  Just because a police officer is involved in a shooting (which could be considered normal for the job in general), that does not mean an officer-involved shooting is normal for that particular police department or that the circumstances of the shooting are par for the course.

The holding in Russo is a cautionary tale for Defendants in Pennsylvania mental/mental claims.  The burden for a mental/mental claim is being eroded and based on the dissent in Russo, may be abolished altogether in the not too distant future.

If you have any questions, please contact Erin C. Thompson, Esq. at EThompson@c-wlaw.com or (610) 567-0700.

Disclaimer

The information in this article is provided for general informational purposes only and may not reflect the current law in your jurisdiction.  By reading this article, you understand that there is no attorney-client relationship between you and Cipriani & Werner, P.C. or any of our attorneys.  No information contained in this article should be construed as legal advice from Cipriani & Werner, P.C. or the individual authors.