DOC SCI-Chester v. C. Faison (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Department of Corrections - SCI :
Chester, :
Petitioner :
:
v. : No. 150 C.D. 2021
: Submitted: July 2, 2021
Crystal Faison (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: November 10, 2021
Commonwealth of Pennsylvania, Department of Corrections - SCI Chester
(Employer) petitions for review of the Workers’ Compensation Appeal Board’s
(Board) January 26, 2021 Order that affirmed the Workers’ Compensation Judge’s
(WCJ) September 24, 2019 Decision granting Crystal Faison’s (Claimant) Claim
Petition. The WCJ found that Claimant had proven that she suffered a work-related
psychological injury as a result of being sexually assaulted while in the course of
employment and that Claimant was entitled to ongoing temporary total disability
benefits as of August 10, 2018. On appeal, Employer argues that:1 (1) the WCJ
erred in denying its Motion to Dismiss the Claim Petition and granting the Claim
Petition because the WCJ lacked the authority to determine that Claimant was
raped/sexually assaulted and, therefore, violated the alleged perpetrator’s due
1
We have reorganized the issues raised for ease of discussion.
process rights in doing so; (2) the WCJ and the Board erred in not requiring
corroborating evidence to prove that Claimant suffered an abnormal working
condition; (3) the WCJ’s findings were arbitrary and capricious and not based on
substantial evidence; and (4) the WCJ committed reversible error by finding
testimony that was not submitted in this matter to be reliable and relying on this
testimony in its decision. After careful review, we affirm the Board’s Order.
I. BACKGROUND
A. The Claim Petition
Claimant worked for Employer as a corrections officer. (WCJ’s Decision,
Finding of Fact (FOF) ¶ 4(a).)2 Claimant filed the Claim Petition alleging that, “as
a result of being sexually assaulted by a co-worker [(Coworker),]” Claimant
developed a psychological injury. (Claim Petition at 2; FOF ¶ 1.) The Claim
Petition sought partial disability benefits starting May 20, 2018, the date of the work-
related incident, and total disability benefits starting August 10, 2018, the date
Claimant began taking sick leave due to the work-related injury. (Claim Petition at
2; FOF ¶¶ 1, 4(k).) Employer denied Claimant’s allegations. (FOF ¶ 2.) Employer
filed two Motions to Dismiss, challenging the WCJ’s jurisdiction or authority over
this matter, which the WCJ denied. (Reproduced Record (R.R.) at 17a.)
B. Claimant’s Evidence
In support of the Claim Petition, Claimant testified before the WCJ and
submitted Claimant’s prior deposition and the deposition of Justin Wiley, Psy.D., a
licensed clinical psychologist. (FOF ¶¶ 4-6.)
2
The WCJ’s Decision is found at pages 20a through 35a of the Reproduced Record.
2
1. Claimant’s Testimony
In Claimant’s deposition, Claimant testified as follows.3 Claimant began
working at State Correctional Institution – Chester as a corrections officer in April
2007. (Id. ¶ 4(a), (b).) Prior to the May 20, 2018 incident, Claimant worked in
Corridor B of the institution, which is the main corridor connecting the housing units
in tower A to the Restricted Housing Unit (RHU). (Id.) During the incident on May
20, 2018, Claimant was in the RHU’s control bubble, which “is an area where there
are monitors and controls to open the doors and sliders in the actual unit.” (Id.
¶ 4(c).) Claimant had entered the RHU’s control bubble to leave food in the
refrigerator. (Id.) When Claimant went to do so, Coworker approached Claimant
from behind, kissed Claimant’s ear, and began trying to undo the belt to Claimant’s
uniform pants. (Id.) “During this time[,] Claimant was trying to push [Coworker]
off, but [Coworker] was persistent.” (Id.) Coworker then engaged in penetrative
sexual intercourse with Claimant, while Claimant told Coworker no, that she “did
not want to[,] and [for Coworker] to stop.” (Id.) The incident lasted between five
and seven minutes, and Claimant continued working afterwards and finished that
shift. (Id. ¶ 4(d).)
Claimant had known Coworker for about two years prior to the May 20, 2018
incident, and they had a prior sexual relationship in June 2017. (Id. ¶ 4(g).) As of
2018, “Claimant considered their relationship a friendship more than a romance.”
(Id.) On May 12, 2018, eight days before the incident, Claimant texted Coworker,
and the conversation “was friendly in nature.” (Id.; see R.R. at 213a-14a.) Coworker
then texted Claimant on May 16, 2018, implying that Coworker wanted to have sex
with Claimant. (FOF ¶ 4(g).) “Claimant had previously discussed with [Coworker]
3
Claimant’s September 17, 2018 deposition testimony is found at pages 113a through 211a
of the Reproduced Record and is summarized in the WCJ’s Decision at Finding of Fact 4.
3
that she did not want to have sex[,]” and Claimant again told Coworker the same
over text. (Id.; R.R. at 215a-17a.)
Claimant texted Coworker the day after the incident concerning what
occurred. (FOF ¶ 4(h); R.R. at 221a-22a.) Specifically, Claimant stated, “You
finally got what you were requesting lol [(laugh out loud).]” (R.R. at 222a.) After
Coworker did not respond, Claimant again texted Coworker on May 23, 2018,4
writing that Claimant’s appetite has been affected and that she could not ignore what
happened. (FOF ¶ 4(h).) Following the May 20, 2018 incident “Claimant was
scared and did not know what to expect or how to take the situation.” (Id. ¶ 4(e).)
Claimant “felt hurt and started to have crying spells and melt[]downs at the office.”
(Id.)
After another coworker (Officer) asked what was wrong because Claimant
appeared upset, Claimant decided to discuss the incident with Officer. (Id. ¶ 4(i).)
After Claimant explained what occurred, Officer informed Claimant that Coworker
“was married to someone with whom they work[,]” of which Claimant was unaware.
(Id.) Officer also opined that Claimant had been raped. (Id.) Upon learning the
truth about Coworker’s marriage, Claimant decided to text Coworker again, stating,
“now that I know the truth, I should have put up more resistance. But you would
not take no for an answer.” (R.R. at 225a.) Claimant felt “used and violated.” (FOF
¶ 4(h); R.R. at 225a.)
Claimant reported the incident to Employer on June 6, 2018. (FOF ¶ 4(f).)
After Claimant spoke with two superiors, the two accompanied Claimant to the
Pennsylvania State Police (State Police) Barracks. (Id.) “When Claimant initially
went to the State Police, she did not want to pursue criminal charges because she
4
The WCJ stated the date as May 22, 2018, in the Findings of Fact, but the Reproduced
Record shows that Claimant sent these texts on May 23, 2018. (See R.R. at 222a-24a.)
4
was afraid of retaliation.” (Id.) On June 11, 2018, Claimant was also interviewed
by the Director of the Equal Employment Opportunity (EEO) Office for Employer
(EEO Director), as a part of an EEO investigation regarding the incident. (Id. ¶
4(o).)
Claimant began seeing Dr. Wiley on July 17, 2018. (Id. ¶ 4(j).) Before the
incident, Claimant “had never seen a mental health professional or taken anti-
depressants or anti-anxiety medicine.” (Id. ¶ 4(b).) At the time of Claimant’s
deposition, Claimant was treating with Dr. Wiley once per week and was also
planning to see a psychiatrist at Dr. Wiley’s recommendation. (Id. ¶ 4(j); R.R. at
209a-10a.) Though Claimant had continued working after the incident, Claimant
had been “zoning out, was crying easily[,] and was irritable.” (FOF ¶ 4(j).) Further,
Claimant “crie[d] more than normal[,]” “ha[d] a hard time getting to sleep[,]” “ha[d]
flash[]backs and nightmares[,]” “ha[d] [] began to suffer from anxiety attacks[,]”
and began becoming overwhelmed very easily. (Id. ¶ 4(k), (s).) Claimant also
“began to isolate[,] lost weight[,]” and began smoking more cigarettes. (Id. ¶ 4(k).)
While Claimant had been working a regular schedule as best as possible after the
incident, Claimant decided to take sick leave starting August 10, 2018. (Id.)
On August 18, 2018, police went to Claimant’s home after her “sister had
called the police concerned that Claimant was suicidal.” (Id. ¶ 4(j).) Claimant had
sent a text to her mother indicating an intent for self-harm, had been drinking alcohol
“in an attempt to numb her feelings and go to sleep[,]” and “had also taken some
over[-]the[-]counter sleeping pills.” (Id.) Police brought Claimant to the emergency
room and then transported Claimant to a crisis center, where she stayed from August
19, 2018, through August 20, 2018. (Id.)
5
On cross-examination, Claimant admitted to the prior sexual relationship with
Coworker and Claimant’s lack of knowledge regarding Coworker’s marriage. (Id.
¶ 4(m).) As to the incident itself, Claimant admitted that Coworker was not “violent”
but explained that Coworker “bent [Claimant] over the chair” and “put [Coworker’s]
weight on Claimant” such that “Claimant was unable to move forward or side to
side.” (Id. ¶ 4(n)-(o).) Claimant discussed a statement written by a State Police
Trooper (Trooper) following an interview on June 6, 2018, the day that Claimant
reported the incident. (Id. ¶ 4(p).) In that statement, “Claimant responded [‘]no[’]
to being assaulted or raped by [Coworker]. Claimant was penetrated but [] did not
want to use the term ‘rape or assault.’” (Id.) However, Claimant made clear that
she did not give Coworker permission to engage in sexual intercourse. (Id. ¶ 4(t).)
At the hearing before the WCJ,5 Claimant stated that she attempted to press
charges and returned to the State Police to speak with Trooper, but Trooper refused
to take her statement or reopen the investigation. (Id. ¶ 5(c).) As to Claimant’s
injury and conditions, Claimant explained that she: continues to treat with Dr. Wiley
and is taking a generic anti-depressant; is “anxious and overwhelmed by having to
rehash the details of the assault”; “still has visions of the incident and night sweats”;
and continues to suffer from “anxiety and depression” but is “trying to handle it as
best as she can.” (Id. ¶ 5(a)-(b).) Though “trying to utilize her children and family
as support[,] there [we]re moments when [Claimant] just fe[lt] hopeless.” (Id. ¶
5(b).)
Claimant’s testimony before the WCJ at the February 4, 2019 hearing is found at pages
5
83a through 96a of the Reproduced Record and is summarized in the WCJ’s Decision at Finding
of Fact 5.
6
2. Dr. Wiley’s Testimony
Dr. Wiley testified by deposition as follows.6 Dr. Wiley first examined
Claimant on July 17, 2018. (Id. ¶ 6(a).) Dr. Wiley took a history from Claimant
regarding the May 20, 2018 incident and the resulting symptoms that Claimant was
experiencing. (Id.) Dr. Wiley explained that “Claimant was in a lot of distress and
re-experiencing symptoms associated with trauma. There were symptoms common
to post-traumatic stress disorder.” (Id.) Claimant “also had symptoms associated
with hyper-arousal[,] such as panic and anxiety.” (Id.) Claimant “had insomnia,
[feelings of] hopelessness, depressed mood[,] and appetite disturbance[,]” as well as
“sadness, pessimism[,] and anhedonia[,] which is a lack of pleasure in previously
pleasurable things.” (Id.) Additionally, “Claimant was self-critical, cried a lot[,]
and had the feeling [of] being punished.” (Id.) Dr. Wiley conducted “a mental status
examination” and “a Beck depression inventory,” and “Claimant scored on the
severe range on the depression inventory.” (Id.) Dr. Wiley also performed the “Beck
Hopelessness Scale, which revealed Claimant to have a lot of despair and
hopelessness around the future.” (Id.) Finally, Dr. Wiley “administered the Brief
Symptom Inventory[,] which incorporates all the other scales and tests” and “is
helpful in the consistency in making a diagnosis.” (Id.) Given the evaluation, tests,
and Claimant’s history, Dr. Wiley “diagnosed Claimant with post-traumatic stress
disorder and major depression[.]” (Id.) Dr. Wiley opined that “[t]he single episode
causing the major depression disorder was” the May 20, 2018 incident. (Id.)
Dr. Wiley also reviewed the investigative reports from the State Police.
(Id. ¶ 6(c).) Dr. Wiley explained that Claimant “was under considerable stress and
discussed significant fear of retaliation from” Coworker and “that it was common
6
Dr. Wiley’s November 13, 2018 deposition testimony is found at pages 240a through
310a of the Reproduced Record and is summarized in the WCJ’s Decision at Finding of Fact 6.
7
among rape victims to show reluctance or waffling. It does not mean that the rape
did not occur.” (Id.) Dr. Wiley also reviewed the report from Brian Bora, M.D.,
Employer’s expert, who conducted a psychiatric examination of Claimant. (Id.
¶¶ 6(c), 7(a).) Dr. Wiley agreed that Claimant did not display “any indications that
Claimant was malingering or feigning symptoms.” (Id. ¶ 6(c).)
On cross-examination, Dr. Wiley admitted that “Claimant had not seen any
other physician or counselor for the” May 20, 2018 incident. (Id. ¶ 6(e).) Dr. Wiley
also admitted that it was not until after the September 4, 2018 examination of
Claimant that Dr. Wiley first stated that Claimant was unable to work. (Id.) Finally,
Dr. Wiley testified “that Claimant ha[d] been indecisive about whether or not
[Claimant] wanted to press charges.” (Id.)
C. Employer’s Evidence
Employer submitted the deposition testimonies of Dr. Bora, Trooper, and
EEO Director.7
1. Dr. Bora’s Testimony
Dr. Bora testified8 that he “conducted a psychiatric examination of Claimant
on October 9, 2018[,]” which involved taking a history from Claimant about the May
20, 2018 incident and reviewing various records. (Id. ¶ 7(a).) Dr. Bora testified that,
while Claimant told Dr. Bora that she did not have any psychiatric history, “there
7
Employer also submitted the depositions of a lieutenant (Lieutenant) and major (Major)
for Employer, who are both in Claimant’s chain of command. The testimonies are not relevant to
the present determination. The WCJ found that Lieutenant’s testimony was “not credible or
persuasive to defeat Claimant’s allegation of rape by [Coworker]” and that, while Major was
“generally credible,” Major’s testimony was “not determinative to any issue with regard to
Claimant’s Workers’ Compensation claim[]” and was, therefore, rejected. (FOF ¶¶ 19-20.)
Employer has not challenged the WCJ’s determinations with respect to these witnesses.
8
Dr. Bora’s January 22, 2019 deposition testimony is found at pages 628a through 684a of
the Reproduced Record and is summarized in the WCJ’s Decision at Finding of Fact 7.
8
were family medicine notes from December 2016[] where [Claimant] did report to
her family physician that she had depressive symptoms.” (R.R. at 648a.) Based on
the records and the examination, “Dr. Bora opined that it was not clear . . . that
Claimant had been raped.” (FOF ¶ 7(b).) Relying on Claimant’s usage of “lol” in
the text messages to Coworker and their prior sexual relationship, Dr. Bora “opined
that the situation was complicated . . . and there appeared to be an ongoing flirtation.”
(Id.) Dr. Bora asserted that “Claimant’s perception changed . . . when [Claimant]
found out that [Coworker] was married.” (Id.) Dr. Bora also concluded from a
December 7, 2016 report in which Claimant described feeling depressed to
Claimant’s family doctor “to mean that Claimant did have a history of depression[.]”
(Id.) Accordingly, “Dr. Bora opined that Claimant did not sustain any work[-]related
injury.” (Id. ¶ 7(c).) While Dr. Bora recognized that “Claimant reported depressive
symptoms after the” May 20, 2018 incident, “Dr. Bora opined that it is most likely
due to” Claimant being unemployed, Claimant’s failed marriage, Claimant’s co-
workers being cold to Claimant, and the difficulty of the surrounding situation. (Id.)
Dr. Bora maintained that “[a]ny type of issues that Claimant currently has are not
related to any incident at work.” (Id.)
Dr. Bora also made the following admissions: Dr. Bora “ha[d] not
interviewed sexual assault victims outside of his private practice[,] but some of his
patients have been sexually assaulted”; Dr. Bora “does not draw conclusions within
the context of a treatment plan as to whether or not the sexual assault took place”
when treating patients in his private practice; and Dr. Bora “did not find Claimant to
lack any credibility” or “find any evidence of symptom magnification o[r] symptom
fabrication[.]” (Id. ¶ 7(d).) Dr. Bora also agreed that Claimant met all six criteria
for a diagnosis of post-traumatic stress disorder but stated that, given “the text
9
messages and the witness statement” to the State Police, “it was not clear that a rape
did occur.” (Id.) Dr. Bora concluded that Claimant did not meet the criteria for post-
traumatic stress disorder “because she continued to work” after the May 20, 2018
incident. (Id.)
2. Trooper’s Testimony
Trooper testified as follows.9 When Claimant went to the State Police with
two superiors in June 2018, Trooper interviewed Claimant regarding the May 20,
2018 incident. Claimant explained to Trooper “that she did not want anything done
but needed to tell her side of the story.” (Id. ¶ 8(b).) Trooper’s interview with
Claimant was video recorded. (Id.) “Claimant was upset and crying but was willing
to talk to” Trooper, who listened to Claimant’s recollection of the incident and took
notes. (Id.) “When asked if Claimant would be able to write down [a] statement,”
Claimant said she would not. (Id.) Instead, Trooper “composed questions for
Claimant which required one[-]word answers.” (Id.) Trooper then wrote out
possible answers to those questions, “gave Claimant an opportunity to disagree with
the statements[,]” and had Claimant initial the answer with which Claimant agreed.
(Id.) “In response to a question during this deposition as to whether or not Claimant
said she was raped or sexually assaulted by [Coworker], Trooper responded that
Claimant denied this.” (Id. ¶ 8(c).) Trooper also asked whether Claimant was more
upset about finding out that Coworker was married, and Claimant answered in the
affirmative. (Id.)
Trooper testified that there was an attempt to interview Coworker, but
Coworker refused. (Id. ¶ 8(d).) Based on Claimant’s interview, Trooper opined that
9
Trooper’s January 17, 2019 deposition testimony is found at pages 546a through 609a of
the Reproduced Record and is summarized in the WCJ’s Decision at Finding of Fact 8.
10
“it appeared that [Claimant] was not sexually assaulted or raped.” (Id.) Trooper
believed that Claimant’s statement that she did not want to get Coworker in trouble
and Claimant’s responses to Trooper’s written questions and answers agreeing that
Claimant had not been raped or sexually assaulted supported this position. (Id.)
Accordingly, Trooper decided to terminate the investigation. (Id.)
On cross-examination, Trooper admitted that Claimant stated that she “pushed
[Coworker] away but not as much as she should have.” (Id. ¶ 8(f).) Further, Trooper
stated he “d[id] not know what a leading question is[]” and admitted to not having
received any “training from a psychologist or mental health professional[]” with
regard to ascertaining “the state of mind of a sexual assault victim.” (Id.) Trooper
“did not find Claimant credible[] but rather thought she was upset about having a
sexual affair” with a married individual. (Id.) With regard to the specific questions
asked of Claimant, Trooper “agreed that the video showed that Claimant, when
asked if she was sexually assaulted, responded by saying that she did not know
whether it was safe to say that.” (Id. ¶ 8(g).)
3. EEO Director’s Testimony
EEO Director testified as follows.10 EEO Director “is tasked with overseeing
discrimination complaints[,] training for diversity and sexual harassment[,]” and
“sexual harassment investigations.” (Id. ¶ 11(a).) EEO Director investigated
Claimant’s rape allegation, which “consisted of witness interviews, surveillance
video review of Claimant’s police interview, [and] review of text messages and
police reports.” (Id. ¶ 11(b).) In forming conclusions in the investigation, EEO
Director mostly relied on Claimant’s agreement with Trooper’s written answer that
10
EEO Director’s January 10, 2019 deposition testimony is found at pages 456a through
518a of the Reproduced Record and is summarized in the WCJ’s Decision at Finding of Fact 11.
11
Claimant had not been sexually assaulted and Claimant’s text message to Coworker
in which Claimant used the term “lol.” (Id.) EEO Director “felt this was strong
evidence because Claimant” first alleged having been raped “but then immediately
took it back” during the interview with Trooper. (Id.) EEO Director also took a
statement from Officer, which “confirm[ed] that the first time Claimant learned that
[Coworker] was married was during the course of [the] conversation with [Officer]
where [Claimant] confided in [Officer] that [Claimant] did not have consensual
intercourse with [Coworker].” (Id. ¶ 11(e).) During EEO Director’s interview with
Claimant, Claimant “confirmed that Claimant was at first in denial that this was a
sexual assault.” (Id. ¶ 11(f).) As to why Claimant denied that it was so to Trooper,
Claimant stated that she “feared retaliation and was terrified.” (Id.) During the
interview with Claimant, EEO Director explained that Claimant stated that she “told
[Coworker] numerous times that she did not want to have sex with [Coworker].”
(Id. ¶ 11(d).) EEO Director “could not reach any conclusions as to whether any
consensual sex occurred.” (Id. ¶ 11(f).)
D. The WCJ’s Decision
The WCJ reviewed the evidence and testimony submitted by the parties and
made factual findings and credibility determinations. First, the WCJ reviewed the
text messages between Claimant and Coworker. (Id. ¶ 12; see R.R. at 213a-25a.)
Based on the review, the WCJ found that “[i]t is not possible to accurately ascribe
sentiment or emotion to texts” and “that the texts document that Claimant refused
[Coworker’s] advancements and overtures to have sex prior” to the May 20, 2018
incident. (Id. ¶ 12.) Further, the WCJ found that these text messages showed that,
after the incident, “Claimant confronted [Coworker]” and explained that Claimant
was affected by the incident and that Claimant “could not ignore what had
12
happened.” (Id.) The WCJ found that “[t]hese texts [confronting Coworker] were
sent before Claimant was told that [Coworker] was married.” (Id.)
The WCJ also reviewed the videotape of Trooper’s interview of Claimant.
(Id. ¶ 13.) The WCJ found that “a review of the videotape in its entirety leaves no
question that Claimant was the victim of a rape at work on May 20, 2018.” (Id.)
The WCJ described that, during the interview with Trooper, Claimant is “clearly[,]
visibly upset and cries uncontrollably at times when Trooper leaves the room.” (Id.)
“Although Trooper [] encourages Claimant that this incident was more of a
consensual intercourse,” the WCJ found that “the record is devoid of consent.” (Id.)
The WCJ found “it significant that Claimant was too upset to write a statement.”
(Id.) Further, the WCJ found Trooper’s written question and answer approach did
not amount to “a statement [by Claimant] but a series of questions which
predetermine the answer in a yes or no fashion.” (Id.) The WCJ characterized
Trooper’s approach as using “only leading questions which when answered deny a
rape.” (Id.) The WCJ found Trooper’s tactics “make it seem[] that Claimant only
got upset when she learned that [Coworker] was married[,]” but “[t]he videotape
documents Claimant’s lack of comfort with being compelled to answer yes or no and
her hesitation in giving the answers.” (Id.) Accordingly, the WCJ concluded that
“[t]he videotape supports Claimant’s testimony that she was raped at work on May
20, 201[8].” (Id.)
Turning to credibility determinations, the WCJ determined Claimant’s
testimony was credible and persuasive. (Id. ¶ 14.) The WCJ explained “Claimant’s
composure and demeanor during [] live testimony and [the WCJ’s] observation of
the videotape interview” with Trooper to be significant in making this credibility
determination. (Id.) The WCJ found that Claimant’s testimony was consistent in
13
that Claimant “never gave her consent to be penetrated by” Coworker, told
Coworker no, and rebuffed Coworker’s advancements before the incident. (Id.)
Further, the WCJ noted that Claimant “never had any difficulty performing her job
duties” and “never sought any mental health treatment or experienced any mental
health illness prior to” the incident. (Id.) Accordingly, the WCJ accepted Claimant’s
testimony as fact. (Id.)
Regarding Dr. Wiley’s and Dr. Bora’s testimony, the WCJ found “that the
testimony of Dr. Wiley was more credible and persuasive than the testimony of Dr.
Bora.” (Id. ¶ 15.) The WCJ explained that “Dr. Wiley’s testimony is more credible
because it is consistent with Claimant’s credible testimony[,] which has been
accepted as fact. As Claimant’s treating psychologist, [Dr. Wiley] was more familiar
with the rape, Claimant’s report of the rape, her treatment and her devolution into a
crisis in August of 2018.” (Id.) Accordingly, the WCJ accepted Dr. Wiley’s
testimony in its entirety as fact. (Id.)
Conversely, the WCJ deemed Dr. Bora’s testimony to be “not credible or
persuasive because [Dr. Bora] believed Claimant to have mental health issues in the
past because of one note in her family doctor’s records from December 7, 2016,”
despite the fact that “[t]here is no other indication that Claimant sought mental health
treatment or had a mental health illness.” (Id. ¶ 16.) Further, the WCJ noted that
Dr. Bora believed that Claimant was not raped “because[,] in [Dr. Bora’s] opinion,
Claimant flirted with” Coworker and also because Claimant “had a prior sexual
relationship with” Coworker. (Id.) With respect to Claimant’s perception changing
after discovering that Coworker was married, the WCJ found that Dr. Bora
“completely misstates the timeline of Claimant’s distress over her rape which was
immediate.” (Id.) The WCJ explained Dr. Bora’s misunderstanding of the timeline,
14
as “Claimant only found out [Coworker] was married after Officer asked why
Claimant was sad” and Claimant told Officer about the incident. (Id. (emphasis
added).) Finally, the WCJ found that Dr. Bora “lacks credibility because he admits
that if Claimant were a private patient, he would not question whether or not she had
been sexually assaulted but would focus on treatment[,] assuming the history to be
true.” (Id.) Finding Dr. Bora’s opinions to be “biased and without competent factual
foundation,” the WCJ rejected Dr. Bora’s testimony in its entirety. (Id.)
As for Trooper’s testimony, the WCJ found that “Trooper [] testified
accurately as to how he conducted the interview with Claimant[]” but did “not find
[Trooper’s] conclusions that the assault on Claimant was consensual sexual
intercourse credible or persuasive.” (Id. ¶ 18.) Finding that Claimant never
consented but specifically said “no,” the WCJ added that the facts that Claimant
“admits she froze” and that she “should have fought [Coworker] off more . . . do not
make the forced intercourse consensual.” (Id.) As for Trooper’s interview with
Claimant, the WCJ found the questions to be leading in nature because “all of the
questions he wrote for Claimant that p[ur]port to be ‘her’ statement[] presuppose an
answer compelling a conclusion that the sex was consensual, and [that] Claimant
was upset” because she discovered that Coworker was married. (Id.) The WCJ
explained that Trooper’s “reasoning does not support that the rape did not occur[]”
and that Trooper’s reliance on a lack of “violence” is in error where there was no
consent. (Id.)
Turning to EEO Director’s testimony, the WCJ found the testimony not
credible or persuasive. The WCJ noted that EEO Director “relied heavily on the
interview of Claimant by Trooper [] and the text messages.” (Id. ¶ 21.) Given that
the WCJ “has found both not credible to defeat Claimant’s” competent and
15
persuasive testimony concerning the incident, the WCJ determined that EEO
Director’s “investigation and testimony [were] not based on a competent factual
foundation and [] rejected” them. (Id.)
Finally, despite that Officer did not provide testimony in this matter, the WCJ
stated that she found Officer’s testimony consistent with Claimant’s testimony and
accepted it as fact. (Id. ¶ 17.) Further, in discussing Claimant’s credibility, the WCJ
found that “Claimant’s testimony is also supported by the testimony of Officer[].”
(Id. ¶ 14.)
Accordingly, the WCJ found that “[o]n May 20, 2018, Claimant was raped in
the control bubble of the [RHU] by [Coworker.]” (Id. ¶ 22.) The WCJ explained
that the burden of proof in this “mental/mental case” requires “proof of an abnormal
working condition” and found that “[f]orced sexual intercourse without consent is a
rape[]” and that “[r]ape is never a normal working condition.” (Id. ¶ 23.) The WCJ
found that the incident caused Claimant to sustain a psychological injury in the form
of post-traumatic stress disorder and major depression, and that this injury was “not
a subjective reaction to a normal working condition[]” but has been “objectively
verified by Dr. Wiley.” (Id. ¶¶ 23-24; WCJ’s Conclusions of Law (COL) ¶ 2.) As
a result, the WCJ concluded, “Claimant became totally disabled effective August 10,
2018.” (FOF ¶ 25; COL ¶ 3.) Employer appealed the WCJ’s Decision to the Board.
E. The Board’s Opinion11
On appeal to the Board, Employer argued that: (1) “the WCJ lacked
jurisdiction to decide whether Claimant was raped and[,] in doing so[,] violated the
criminal due process rights of [Coworker]”; (2) the WCJ’s Decision was not
supported by substantial, competent evidence; (3) the WCJ capriciously disregarded
11
The Board’s Opinion is found at pages 47a through 60a of the Reproduced Record.
16
evidence; and (4) the WCJ “erroneously found Claimant’s testimony was
corroborated by Officer[.]” (Board Opinion (Op.) at 2.)
First, the Board concluded that Claimant satisfied the “burden of proving by
objective evidence that [Claimant] sustained a psych[ological] injury and that such
injury was other than a subjective reaction to normal working conditions.” (Id. at
11.) The Board explained that Claimant provided proof that she suffered from post-
traumatic stress disorder and major depressive disorder through her “credited
testimony as to an actual event and the credited testimony of her treating
psychologist[,] Dr. Wiley.” (Id.) Because “Claimant’s testimony was not limited to
[a] belief of subjective, abnormal conditions[] but rather included [Claimant’s own]
description . . . of an actual, specific event[,]” the question of credibility was solely
for the WCJ to make within her discretion. (Id.) Given that the WCJ found that
“Claimant was physically assaulted causing her to sustain a psychological injury[,]”
the Board determined that the credited testimonies of Claimant and Dr. Wiley
“constitute[d] substantial, competent evidence [that] Claimant sustained work-
related” injuries rendering Claimant “totally disabled ongoing from August 10,
2018.” (Id.) The Board added that the fact that “Claimant provided a signed
statement to the . . . State Police denying rape or sexual assault does not diminish
the substantial, competent evidence supporting the WCJ’s Decision.” (Id.) Because
Claimant’s testimony regarding the event was found credible, and given that the
medical evidence from Dr. Wiley “unequivocally established that the abnormal
working conditions caused psych[ological] injuries,” the Board concluded that “the
WCJ did not err in finding a compensable injury.” (Id. at 12.)
Turning to Employer’s contention that “the WCJ’s finding that Claimant was
physically assaulted or made reference to the word ‘rape’ is [] tantamount to a
17
criminal conviction[,]” the Board explained that while “a determination as to
whether the crimes of sexual assault or rape occurred were outside [the WCJ’s]
specific jurisdiction, the WCJ was well within her purview to determine whether
Claimant was subjected to abnormal working conditions[.]” (Id. (emphasis added).)
The Board stated that the Workers’ Compensation Act12 (Act) “is applicable to all
injuries occurring within Pennsylvania[.]” (Id.) Accordingly, the Board explained,
“[a] WCJ may analyze evidence concerning incidents on the job leading to disability,
even if that evidence implicates criminal conduct[,]” comparing the WCJ’s finding
here to those in Pennsylvania Liquor Control Board v. Workers’ Compensation
Appeal Board (Kochanowicz), 108 A.3d 922 (Pa. Cmwlth. 2014); Miller v. Workers’
Compensation Appeal Board (New Wilmington Family Practice), 724 A.2d 971 (Pa.
Cmwlth. 1999); and Archer v. Workmen’s Compensation Appeal Board (General
Motors and Royal Insurance Co.), 587 A.2d 901 (Pa. Cmwlth. 1991). (Board’s Op.
at 12.) “That the same set of facts can lead to litigation in other legal or
administrative arenas with their own burdens of proof and procedural rules[,]” the
Board held, “is not a usurpation of those arenas.” (Id. at 12-13.) The Board further
emphasized that its “affirmance of the WCJ’s findings of an abnormal working
condition based on substantial, competent evidence does not relate to or overlap with
the determination of whether a criminal act did or did not occur.” (Id. at 13 n.3.)
The Board then addressed Employer’s position that August 10, 2018, was not
the proper date of disability because Dr. Wiley did not document that Claimant
should not be working until September 4, 2018. The Board explained that “the
record indicates that August 10, 2018[,] was the date Claimant ceased working due
to her ongoing symptoms of depression and anxiety.” (Id.) “Because the WCJ
12
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
18
credited Claimant’s testimony in that regard, [the Board] decline[d] to disturb that
date on appeal[]” as those “credibility determinations were not made arbitrarily and
capriciously and [the WCJ’s] findings are supported by substantial evidence[.]” (Id.
(citations omitted).)
Finally, the Board turned to Employer’s argument that “the WCJ erred by
finding Claimant’s testimony was corroborated by Officer as that testimony is absent
from the record.” (Id.) Agreeing that Officer’s testimony was not in the record, the
Board nonetheless concluded that the WCJ’s error in so stating was “harmless as this
absent testimony was explicitly found to be consistent with Claimant’s testimony,
which is part of the record and was found credible.” (Id. at 13-14 (citing Benson v.
Workmen’s Comp. Appeal Bd. (Haverford State Hosp.), 668 A.2d 244, 248-49 (Pa.
Cmwlth. 1995)).) Accordingly, the Board affirmed the WCJ’s Decision.13 Employer
now petitions for review.14
II. DISCUSSION
A. Whether the WCJ had authority to find that the May 20, 2018 incident
occurred as Claimant testified.
1. Parties’ Arguments
Employer argues that the WCJ erred in denying its Motion to Dismiss the
Claim Petition and granting the Claim Petition because the WCJ lacked the authority
to determine that the May 20, 2018 work incident occurred and that, in doing so,
acted outside of the WCJ’s jurisdiction. Employer posits that the General Assembly
“vested the power to prosecute criminal matters in the Attorney General” and district
13
Two of the Board’s Commissioners concurred in the result only.
14
Our scope of review in workers’ compensation matters “is limited to determining
whether constitutional rights have been violated, whether an error of law has been committed[,]
and whether all necessary findings of fact are supported by substantial evidence.” Archer, 587
A.2d at 903.
19
attorneys and that the statute vesting such authority “is unambiguous and should be
read as a restriction on any other party acting to investigate criminal offenses” under
the plain meaning of the statute’s language. (Employer’s Brief (Br.) at 31 (citing
Section 206 of the Commonwealth Attorneys Act, 71 P.S. § 732-206).15) Because
the Act does not give a WCJ any authority to investigate or determine whether a
crime was committed and only confers prosecution powers to district attorneys for
purposes of insurance fraud, Employer asserts, the WCJ was without authority to
determine that Coworker raped Claimant. (Id. at 32.) Employer posits that the Board
“admit[ted] that the WCJ made a determination that a criminal act did occur –
something that [it] also admit[ted] is outside [the WCJ’s or Board’s] jurisdiction.”
(Id. at 33.)
Additionally, Employer argues that the WCJ violated Coworker’s due process
rights by determining that Coworker had raped Claimant. Given that Coworker “did
not have the ability to confront his accuser[,]” and “did not have the opportunity to
be heard, since any statements [Coworker] ma[de] could be used against [Coworker]
in the future[,]” Employer contends that “Coworker was tried and administratively
determined to be a rapist in absentia.” (Id. at 35.) Further, recognizing that
Coworker “does not face criminal prosecution or confinement as a result of the
WCJ’s Decision,” Employer posits that Coworker does face “very real private and
public scorn and humiliation by the WCJ’s finding that [Coworker] raped Claimant.”
(Id. at 35-36.) Employer argues that “[t]his violation of [Coworker’s] due process
rights is akin to vigilante justice wherein [Coworker] has been branded a rapist by
someone not authorized or capable to do so, and this branding shall remain in
[Coworker’s] file for the remainder of [Coworker’s] career.” (Id. at 36.)
15
Act of October 15, 1980, P.L. 950, as amended, 71 P.S. §§ 732-101 – 732-506.
20
Claimant responds, arguing that the WCJ acted within her jurisdiction.
Claimant asserts that a WCJ is “empowered to find that an incident or circumstances
on the job, if it rises to the level of abnormal working conditions, can cause
psychological injuries.” (Claimant’s Br. at 12 (citing Martin v. Ketchum, 568 A.2d
159 (Pa. 1990)).) Claimant asserts that “work-related injuries are [often] caused by
conduct that entails potential criminal actions” and compares this case to that in
Pennsylvania Department of Corrections v. Workers’ Compensation Appeal Board
(Cantarella), 835 A.2d 860 (Pa. Cmwlth. 2003), where the claimant, an instructor at
a state prison, was touched inappropriately by an inmate and later developed anxiety
and post-traumatic stress disorder. (Id. at 12-13.) Claimant argues “that the finding
of fact . . . does not amount to a conviction; rather, the finding of fact was simply a
recognition that the incident was work-related, abnormal, and caused disabling
psychological conditions,” which Claimant maintains is within the WCJ’s authority.
(Id. at 13.)
Claimant argues that “[t]he same set of facts can lead to litigation in” the
“spheres” of criminal, civil, and administrative law, “each with their own separate
burdens of proof and procedural rules.” (Id. at 14.) Claimant further contends that
Employer’s “attempt to analogize this to the [insurance] fraud provision of the Act
. . . is likewise meritless.” (Id. at 15.) Claimant cites Section 1110 of the Act, 77
P.S. § 1039.10,16 which states that “[n]othing contained in this article shall be
construed to limit the regulatory or investigative authority of any department or
agency of the Commonwealth[,]” as support that “a WCJ may consider and rule upon
allegations of fraudulent conduct arising in an active workers’ compensation
matter.” (Id. (quoting 77 P.S. § 1039.10) (internal citations omitted).) Finally,
16
Section 1110 was added by Section 20 of the Act of July 2, 1993, P.L. 190.
21
Claimant argues that Employer’s “assertions that [] due process[17] or Confrontation
Clause[18] principles are implicated here are no less ridiculous than its position that a
WCJ may not adjudicate matters involving criminal activity or conduct by an
individual.” (Id. at 16.)
In its Reply Brief, Employer asserts that Claimant provided no authority for
the assertion that work-related injuries often stem from potentially criminal conduct.
Further, Employer argues that this Court in Cantarella rejected that the claimant had
been subjected to abnormal working conditions and also any “per se” rule that any
specific conduct automatically qualifies as an abnormal working condition.
(Employer’s Reply Br. at 1-2.) Further, Employer argues that “Claimant and the
WCJ want to be able to call someone a rapist and determine that a rape occurred[]
but then claim it has no meaning or impact outside the workers’ compensation
17
Section 1 of the Fourteenth Amendment to the United States Constitution provides, in
relevant part: “No State shall . . . deprive any person of life, liberty, or property, without due
process of law[.]” U.S. CONST. amend. XIV.
Section 9 of Article I of the Pennsylvania Constitution provides:
In all criminal prosecutions the accused hath a right to be heard by himself and his
counsel, to demand the nature and cause of the accusation against him, to be
confronted with the witnesses against him, to have compulsory process for
obtaining witnesses in his favor, and, in prosecutions by indictment or information,
a speedy public trial by an impartial jury of the vicinage; he cannot be compelled
to give evidence against himself, nor can he be deprived of his life, liberty or
property, unless by the judgment of his peers or the law of the land. The use of a
suppressed voluntary admission or voluntary confession to impeach the credibility
of a person may be permitted and shall not be construed as compelling a person to
give evidence against himself.
Pa. CONST. art. I, § 9.
18
The Sixth Amendment to the United States Constitution provides, in relevant part: “In
all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him[.]” U.S. CONST. amend. VI (emphasis added).
22
arena[,]” which Employer characterizes as “truly absurd and . . . is in no way in line
with how our system of laws operate[s].” (Id. at 3.)
2. Analysis
For the purpose of workers’ compensation matters, the Act “appl[ies] to all
injuries occurring within this Commonwealth[.]” Section 101 of the Act, 77 P.S.
§ 1. To provide compensation to injured workers, “a WCJ and the Board are
authorized by the Act to determine whether or not an employee who alleges [the
employee] was injured during the course of [their] employment is entitled to
compensation.” Heath v. Workers’ Comp. Appeal Bd. (Pa. Bd. of Prob. & Parole),
860 A.2d 25, 30 (Pa. 2004). In doing so, a WCJ is required to make credibility and
evidentiary determinations, to make findings as to the facts underlying the matter,
and to determine whether a claimant has met the burden of proving entitlement to
compensation, and with regard to these findings and determinations, “the WCJ is the
ultimate finder of fact and the exclusive arbiter of credibility and evidentiary
weight.” Thompson v. Workers’ Comp. Appeal Bd. (USF&G Co.), 781 A.2d 1146,
1150 (Pa. 2001).
It is well settled that work-related psychological injuries are compensable
under Section 301(c)(1) of the Act, 77 P.S. § 411(1). Archer, 587 A.2d at 313. Our
Supreme Court has explained that a claimant’s burden of proof to recover benefits
for a psychological injury is twofold, requiring the claimant first to “prove by
objective evidence that [the claimant] has suffered a psych[ological] injury and[,
second,] that such injury is other than a subjective reaction to normal working
conditions.” Davis v. Workers’ Comp. Appeal Bd. (Swarthmore Borough), 751 A.2d
168, 174 (Pa. 2000) (citing Martin, 568 A.2d at 159). “Even if a claimant shows
actual, not merely perceived or imagined, employment events that have precipitated
23
[a] psych[ological] injury, the claimant must still prove the events to be abnormal in
order to recover.” Id. (citing Wilson v. Workmen’s Comp. Appeal Bd. (Aluminum
Co. of Am.), 669 A.2d 338 (Pa. 1996)). Further, given the fact-intensive nature of
psychological injury cases, “in determining whether actual working conditions are
abnormal, they must be considered in the context of the specific employment.” U.S.
Airways v. Workers’ Comp. Appeal Bd. (Long), 756 A.2d 96, 101 (Pa. Cmwlth.
2000).
Here, Employer argues that the WCJ lacked authority to determine that
Claimant had been raped or sexually assaulted by Coworker and that, in doing so,
the WCJ violated Coworker’s due process rights. We disagree. The Act extends to
“all injuries occurring within this Commonwealth[,]” including those where the
evidence implicates criminal conduct. 77 P.S. § 1.
Contrary to Employer’s arguments, courts have found abnormal working
conditions and granted benefits in other instances where the evidence implicated
criminal conduct. For instance, in RAG (Cyprus) Emerald Resources, L.P. v.
Workers’ Compensation Appeal Board (Hopton), 912 A.2d 1278 (Pa. 2007), the
claimant alleged to have been the victim of sexual harassment by the claimant’s
supervisor. In holding that the harassment constituted abnormal working conditions
where the supervisor harassed the claimant intensely and with high frequency, the
Pennsylvania Supreme Court also noted that the supervisor’s conduct “arguably
constitute[d] criminal harassment.” Id. at 1288. There was no indication that this
limited the WCJ’s authority or jurisdiction to decide whether the injury occurred and
was compensable.
Similarly, in Kochanowicz, the claimant alleged to have been the victim of an
armed robbery while working at the employer’s retail store. The claimant averred
24
that the robbery caused him post-traumatic stress disorder. After considering that
the claimant had received workplace training for such an incident, we nonetheless
upheld the WCJ’s finding that the robbery constituted abnormal working conditions
given that the claimant had not experienced workplace violence in his 30-year
employment. Kochanowicz, 108 A.3d at 934. Again, there was no impediment to
the WCJ’s authority or jurisdiction. Likewise, in Philadelphia Electric Co. v.
Workmen’s Compensation Appeal Board (Miller), 643 A.2d 1186 (Pa. Cmwlth.
1994), the claimant, a meter reader, alleged to have been chased by a dog while
working. The claimant further averred that the dog’s owner then threatened to kill
the claimant and proceeded to then chase the claimant with a gun. We determined
that this conduct constituted an abnormal working condition that caused the claimant
psychological injuries.
Finally, in Donovan v. Workers’ Compensation Appeal Board (Academy
Medical Realty), 739 A.2d 1156 (Pa. Cmwlth. 1999), the claimant alleged an injury
during employment as a janitor in a medical office resulting from exposure and
wounding by hypodermic needles that were improperly disposed of. We held that
this constituted an abnormal working condition, especially because improper
disposal of infectious waste carried both civil and criminal penalties. Id. at 1163.
In these cases, the evidence implicated criminal conduct resulting in the
claimants’ injuries by actors who were not parties in the proceeding. Nonetheless,
the WCJs and the Board were within their purview to determine that a compensable
injury resulted from conduct that occurred in the course of the claimants’
employment. These cases demonstrate that although the evidence may implicate
criminal conduct, this does not limit the WCJ’s or the Board’s authority and
jurisdiction to determine that a compensable, work-related injury occurred.
25
While Employer argues that “the Act does not give a WCJ jurisdiction over
criminal matters to make findings of criminal wrongdoing and to [grant or] suspend
benefits based thereon[,]” that is not what occurred. See, e.g., Brehm v. Workers’
Comp. Appeal Bd. (Hygienic Sanitation Co.), 782 A.2d 1077, 1087 (Pa. Cmwlth.
2001) (Friedman, J., dissenting). As the Board astutely stated:
We emphasize that our affirmance of the WCJ’s finding of an abnormal
working condition based on substantial, competent evidence does not
relate to or overlap with the determination of whether a criminal act did
or did not occur . . . . We acknowledge that the authority to prosecute
the crimes of sexual assault and rape rests with the criminal justice
system alone, which applies differing procedural rules and burdens of
proof.
(Board’s Op. at 13 n.3.) The WCJ’s findings in this case did not constitute a legal
determination that Coworker criminally raped or sexually assaulted Claimant. As
Employer recognizes, there has been no criminal process in this matter, and
Coworker “here does not face criminal prosecution or confinement[.]” (Employer’s
Br. at 35.) This was an administrative proceeding, and the WCJ did not apply the
elements of the statutory provisions criminalizing rape and sexual assault or the very
high standard of proof employed in criminal matters.
Here, the WCJ made credibility determinations, and found there was
substantial evidence that Claimant was subjected to nonconsensual sexual
intercourse at work, that this was an abnormal working condition, and that she
sustained a resulting psychological injury which was not a subjective reaction to a
normal working condition. This was within the WCJ’s authority. That the WCJ also
opined that such conduct amounted to rape does not render the WCJ’s findings in
error or diminish the WCJ’s authority or jurisdiction. As the Board recognized, “a
determination of whether a criminal act did or did not occur” was outside of the
26
Board’s or the WCJ’s jurisdiction. (Employer’s Br. at 33 (citing Board Op. at 13
n.3).) The Board correctly emphasized that the WCJ’s findings of fact in these
matters do not amount to a determination as to any criminal liability stemming from
the conduct at issue. (See Board’s Op. at 13 n.3.)
Because Coworker is not a party, this is not a criminal proceeding, and there
is no risk of an adverse adjudication as to Coworker, we also disagree that the WCJ’s
Decision implicates Coworker’s due process rights or the Confrontation Clause.
Employer cites no authority to support such a proposition. Indeed, that the
Confrontation Clause concerns the rights of criminal defendants “[i]n . . . criminal
prosecutions[]” belies that position. U.S. CONST. amend. VI.
Finally, we note that adopting Employer’s position would be contrary to the
purpose of the Act, which ensures that injured employees have a process available
to seek workers’ compensation benefits. Such a decision would render heinous
conduct in the workplace that causes injury to go unchecked and would prevent
employees injured on the job by such conduct from seeking compensation and
redress of injury. This is especially true in light of the fact that the Act “replace[d]
traditional common law rights and remedies[]” in regard to an employee’s recovery
for work-related injury against an employer. East v. Workers’ Comp. Appeal Bd.
(USX Corp./Clairton), 828 A.2d 1016, 1021 (Pa. Cmwlth. 2003). Thus, we agree
with Claimant that any potential criminal liability for conduct that is at issue in a
workers’ compensation matter does not negate a WCJ’s jurisdiction and authority.
Accordingly, the WCJ and the Board did not err on this basis.
27
B. Whether the Board erred in holding that corroboration was not
necessary to prove that an abnormal working condition occurred.
1. Parties’ Arguments
Employer argues that the WCJ and the Board erred in holding that “it is not
necessary to determine if an actual rape or sexual assault occurred because all
Claimant had to do was demonstrate abnormal working conditions and an ‘actual
event’ that caused [Claimant’s] alleged injuries.” (Employer’s Br. at 39.) Employer
maintains that “corroboration was necessary[]” to show that the “sexual act . . . [was]
unwanted” and that the Board erred in not so requiring. (Id. at 40.) Employer likens
the WCJ’s and the Board’s determinations to “support the idea that a claimant can
allege that aliens came down and injured her at work” and that “only [the] claimant’s
testimony that it happened would be required to sustain a compensable claim.” (Id.
at 41-42.)
In response, Claimant argues that corroborative evidence was not required in
this matter. Claimant maintains that, in certain circumstances, corroborative
evidence is not required to prove that an event constituting an abnormal working
condition occurred. (Claimant’s Br. at 20 (citing Archer, 587 A.2d at 901).)
Claimant asserts that “[c]orroborative evidence is required to support the claimant’s
description of a general abnormal working environment that caused an injury;
however, where a claimant testifies about actual events, corroborative evidence is
not required.” (Id. at 18 (citing Donovan, 739 A.2d at 1156).) Because Claimant
established that Claimant sustained work-related injuries as a result of an actual,
described event, Claimant maintains that the WCJ and the Board did not err.
2. Analysis
As explained above, the claimant in workers’ compensation matters alleging
a mental/mental injury carries the burden of proving that her injury was not a
28
subjective reaction to normal working conditions. Normally, “a claimant’s
testimony of abnormal working conditions must be corroborated.” Reigle v.
Workmen’s Comp. Appeal Bd. (Fed. Exp.), 601 A.2d 1331, 1334 (Pa. Cmwlth. 1992)
(citing Russella v. Workmen’s Comp. Appeal Bd. (Nat’l Foam Sys. Inc.), 497 A.2d
290 (Pa. Cmwlth. 1985)). However, this Court created an exception to this general
rule in Archer. There, the claimant alleged that harassment by the claimant’s
supervisor caused the claimant psychological injury. The Board denied benefits,
concluding that the claimant was required to corroborate the allegation of
mistreatment. We reversed, explaining that “[t]he testimony of the claimant in this
case was not limited to her belief that she felt she was being harassed; she also
described actual events[.]” Archer, 587 A.2d at 907 (emphasis in original).
Accordingly, we held that “[w]hile objective evidence may well be necessary where
an employee is describing subjective feelings, no such evidence is necessary where
actual events are being described.” Id. This Court explained that a contrary holding
that “require[d] such evidence would allow an employer to mistreat its employees
with impunity as long as such conduct was done in private.” Id. at 906.
We addressed this exception again in Philadelphia Electric Co. There, the
employer argued that our holding in Archer was limited to harassment and
mistreatment by an employer on its premises and was not extended to other
circumstances. We disagreed, explaining that “Archer and its progeny contain no
admonition that these cases be limited in this manner.” Phila. Elec. Co., 643 A.2d
at 1189. Because the claimant there testified to actual, specific events with respect
to being attacked by a dog and threatened with a gun by the dog’s owner, testimony
that the WCJ found credible, we held that corroboration was not required. Id.; see,
e.g., Donovan, 739 A.2d at 1163 (holding that the claimant’s testimony of being
29
injured by improperly disposed hypodermic needles did not require corroboration
because the claimant was describing actual events); Monessen, Inc. v. Workmen’s
Comp. Appeal Board (Marsh), 631 A.2d 1119 (Pa. Cmwlth. 1993) (claimant who
described being nearly run over by an oiling wheel of a coke oven door did not need
to present corroborative evidence of this event where the WCJ finds that such event
occurred).
In the present case, Employer maintains that Claimant was required to present
corroborating evidence that the sexual intercourse was nonconsensual. We disagree.
Here, Claimant testified that the sexual intercourse was nonconsensual, that
Claimant told Coworker no, and that Coworker forced Claimant to engage in the
intercourse using the force of Coworker’s body weight. (FOF ¶ 4(c), (n).) The WCJ
found Claimant’s testimony to be credible and persuasive in light of “[C]laimant’s
composure and demeanor during [Claimant’s] live testimony[.]” (Id. ¶ 14.) Similar
to the claimant in Philadelphia Electric Co. who did not need to corroborate the
allegations of harassment and mistreatment because the testimony related to an event
and the WCJ found the testimony credible, 643 A.2d at 1189, Claimant here testified
to actual, perceived events, not just Claimant’s subjective reaction to normal
working conditions. Moreover, the WCJ found Claimant’s testimony to be
persuasive and credible. (FOF ¶ 14.)
Therefore, as determined in Archer, because Claimant was not testifying to
how an event made Claimant subjectively feel but describing an actual event,
Claimant was not required to present corroborating evidence. 587 A.2d at 906-07.
Just as such a holding in Archer would permit “an employer to mistreat its employees
with impunity as long as such conduct was done in private[,]” such a decision here
would allow an employee to be forced into nonconsensual sexual intercourse in
30
private without redress for the psychological injuries. Id. at 906. Accordingly,
because the facts presented in this case fit squarely in the exception under Archer,
the Board did not err in concluding that corroboration was not required and affirming
the WCJ’s Decision.
C. Whether the WCJ’s findings were arbitrary and capricious and not
supported by substantial, competent evidence of record.
1. Parties’ Arguments
Employer argues that the WCJ’s findings were arbitrary and capricious and
not based on competent evidence. Employer asserts that the Board “did not mention
the conflicting evidence . . . in this case or the fact that the WCJ did not address the
conflicting evidence but merely ignored [the] same.” (Employer’s Br. at 40.) First,
Employer submits that the WCJ erred in finding Dr. Wiley to be more credible than
Dr. Bora, alleging that Dr. Wiley’s testimony was contradictory to Claimant’s
testimony and further “demonstrate[d] that Dr. Wiley was a paid puppet being
directed in his treatment of Claimant by [Claimant’s attorney.]” (Id. at 43.) Second,
Employer posits that the WCJ ignored contradictory evidence as to Claimant’s
alleged injuries and Dr. Bora’s testimony and opinions. (Id. at 44-45.) Third,
Employer asserts that the WCJ misstated Dr. Bora’s testimony with respect to his
reliance on Coworker’s and Claimant’s prior relationship. (Id. at 45 n.7.)
Finally, Employer asserts that the WCJ erred in ignoring substantial evidence
that the sexual intercourse was consensual. In addition to Claimant’s statements to
the State Police that Claimant was not raped or sexually assaulted, Employer argues
that “[t]he WCJ failed to accord proper weight to the prior sexual relationship
between Claimant and [Coworker], as well as the sexual nature of [C]laimant’s text[
message]s to [Coworker] before and on May 20, 2018.” (Id. at 41.) Moreover,
31
Employer asserts that substantial evidence shows “[C]laimant only became upset
about this alleged interaction/incident and alleged that a rape/sexual assault took
place once she found out that [Coworker] was married and that she could not pursue
a relationship with [Coworker].” (Id. at 46-47.) Employer maintains that the WCJ’s
finding that Claimant was upset immediately after the incident was in error because:
Claimant continued to work after the incident “without any issues”; Claimant did
not speak with anyone about the incident on May 20, 2018; Claimant used the term
“lol” when Claimant texted Coworker the following day after the incident; and the
other text messages from Claimant to Coworker that “tend to show a woman seeking
out the attention of a man who she had a flirtatious relationship with and who she
later discovers is married.” (Id. at 47.) Moreover, Employer asserts that the WCJ
ignored Claimant’s “signed statement” given to the State Police that the incident was
not rape or sexual assault and that Claimant was more upset about learning that
Coworker was married. (Id. at 48-49.) Employer maintains that Claimant only
alleged that a rape or sexual assault occurred after Officer opined that Claimant had
been raped and, moreover, that the evidence of record does not support that Claimant
was sexually assaulted or raped. (Id. at 50.)
Claimant responds that the Board properly affirmed the WCJ’s findings
because Claimant proved with objective evidence that Claimant’s psychological
injury resulted from abnormal working conditions. Claimant argues that she proved
that the abnormal working condition in this case was the “non-consensual sexual
intercourse forced upon her by [Coworker],” and that Employer’s arguments “are
little more than meritless attacks on the WCJ’s credibility determinations, which are
well-reasoned and supported by substantial evidence of record.” (Claimant’s Br. at
21.) Claimant maintains that the WCJ thoroughly explained the WCJ’s credibility
32
determinations and that Employer’s position “attempts to manipulate the evidence
and overcome a nuanced and clearly well-reasoned and supported decision by the
WCJ[.]” (Id. at 25.)
In its Reply Brief, Employer maintains that the evidence in this matter
“reflects” that: (1) “Claimant clearly lied ([e]ither to [Trooper] or under oath in this
proceeding)”; (2) “Claimant wanted a relationship with [Coworker]”; (3) “Claimant
only became upset when she realized [Coworker] was married”; (4) “Claimant never
sought treatment until she obtained an attorney”; and (5) “Claimant’s expert was
tainted.” (Employer’s Reply Br. at 4.)
2. Analysis
In workers’ compensation cases, it is well settled “that the WCJ has the
exclusive authority to make findings of fact and credibility determinations.” Daniels
v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1052 (Pa. 2003).
Thus, as stated above, in these matters, “[t]he WCJ is the ultimate finder of fact and
the exclusive arbiter of credibility and evidentiary weight.” Thompson, 781 A.2d at
1150. Our Supreme Court has explained that “[t]he deference generally accorded to
fact-finders in disputed proceedings is a function of the comparative advantage the
fact-finder has over any reviewing body in making assessments that may depend,
inter alia, upon the demeanor of witnesses.” Daniels, 828 A.2d at 1052.
Accordingly, the WCJ may reject or accept the testimony of any witness. A & J
Builders, Inc. v. Workers’ Comp. Appeal Bd. (Verdi), 78 A.3d 1233, 1238 (Pa.
Cmwlth. 2013).
In reviewing the WCJ’s credibility and evidentiary determinations, “[i]t is
irrelevant whether the record contains evidence to support findings other than those
made by the WCJ; the critical inquiry is whether there is evidence to support the
33
findings actually made.” Furnari v. Workers’ Comp. Appeal Bd. (Temple Inland),
90 A.3d 53, 60 (Pa. Cmwlth. 2014) (citation omitted). Thus, this Court’s authority
in these matters is limited to reviewing the entire record to see if it contains evidence
that a reasonable person might find sufficient to support the WCJ’s findings. Id. If
the record contains such evidence, the findings must be upheld, even though the
record may contain conflicting evidence. Id.A capricious disregard only occurs when the WCJ deliberately ignores
relevant, competent evidence. Capasso v. Workers’ Comp. Appeal Bd. (RACS
Assocs., Inc.), 851 A.2d 997, 999 (Pa. Cmwlth. 2004). Capricious disregard of
evidence “is a deliberate and baseless disregard of apparently trustworthy evidence.”
Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works), 862 A.2d 137,
144 (Pa. Cmwlth. 2004). Nonetheless, “where there is substantial evidence to
support [a WCJ’s] factual findings, and those findings in turn support the
conclusions, it should remain a rare instance in which an appellate court would
disturb an adjudication based upon capricious disregard.” Leon E. Wintermyer, Inc.
v. Workers’ Comp. Appeal Bd. (Marlowe), 812 A.2d 478, 487 n.14 (Pa. 2002).
Finally, a WCJ’s decision must satisfy the reasoned decision requirements of
Section 422(a) of the Act, 77 P.S. § 834. Section 422(a) provides, in relevant part,
that
[a]ll parties to an adjudicatory proceeding are entitled to a reasoned
decision containing findings of fact and conclusions of law based upon
the evidence as a whole which clearly and concisely states and explains
the rationale for the decisions so that all can determine why and how a
particular result was reached.
77 P.S. § 834. To satisfy the reasoned decision requirements, a WCJ must set forth
the rationale for the decision by specifying the evidence relied upon and reasons for
34
accepting it. Daniels, 828 A.2d at 1047; Dorsey v. Workers’ Comp. Appeal Bd.
(Crossing Constr. Co.), 893 A.2d 191, 194 (Pa. Cmwlth. 2006). In the face of
conflicting evidence, the WCJ “must adequately explain the reasons for rejecting or
discrediting competent evidence.” 77 P.S. § 834. “Section 422(a) does not require
the WCJ to discuss all of the evidence presented[]” but only “to make the findings
necessary to resolve the issues raised by the evidence and relevant to the decision.”
Dorsey, 893 A.2d at 194 n.4. “[T]he purpose of a reasoned decision is to spare the
reviewing court from having to imagine why the WCJ believed one witness over
another[]” and to “permit adequate appellate review.” Id. at 194, 196.
In determining credibility, a WCJ may satisfy the reasoned decision
requirements by basing a credibility determination on a witness’s demeanor during
live testimony. Daniels, 828 A.2d at 1052-53. However, “[w]here medical experts
testify by deposition, a WCJ’s resolution of conflicting evidence must be supported
by more than a statement that one expert is deemed more credible than another.”
Dorsey, 893 A.2d at 194. The WCJ must articulate an objective basis for credibility
determinations in order to allow for effective appellate review. Id. Nevertheless,
“Section 422(a) does not permit a party to challenge or second-guess the WCJ’s
reasons for credibility determinations.” Dorsey, 893 A.2d at 194.
Looking to the present case, Employer first argues that the WCJ erred in
crediting Dr. Wiley’s testimony over that of Dr. Bora. In order to comply with the
reasoned decision requirements for the purposes of credibility determinations of
expert witnesses, the WCJ was required to provide “more than just a statement that
one expert is deemed more credible than another[]” and to articulate an objective
credibility determination to allow for effective appellate review. Id. Here the WCJ’s
credibility determination complied with the reasoned decision requirement because
35
it contained more than just a conclusory statement regarding the expert’s credibility.
The WCJ explained that Dr. Wiley’s testimony was more credible and persuasive
than that of Dr. Bora because it was consistent with Claimant’s credible testimony
and because Dr. Wiley was Claimant’s treating psychologist and was, therefore,
more familiar with Claimant’s experiences and symptoms. (FOF ¶ 15.) The WCJ
then explained her rejection of Dr. Bora’s testimony, stating that Dr. Bora
“misstate[d] the time[]line of Claimant’s distress” over the incident, determined that
Claimant had a history of mental illness solely from one note in her family doctor’s
records despite there being no other indication of previous mental illnesses, and
“admit[ted] that if Claimant were a private patient, [Dr. Bora] would not question
whether or not she had been sexually assaulted but would focus on treatment
assuming the history to be true.” (Id. ¶ 16.) Thus, we disagree that the WCJ erred
in this credibility determination, as the WCJ articulated an objective basis for the
determination. Dorsey, 893 A.2d at 194. Because “Section 422(a) does not permit
a party to challenge or second-guess the WCJ’s reasons for credibility
determinations[,]” id., and given that “[t]he WCJ is the ultimate finder of fact and
the exclusive arbiter of credibility and evidentiary weight[,]” Thompson, 781 A.2d
at 1150, we may not supplant the WCJ’s credibility determinations with our own.
Employer next submits that the WCJ ignored contradictory evidence
regarding inconsistencies between Dr. Wiley’s and Claimant’s testimony and “the
credible testimony of Dr. Bora.” (Employer’s Br. at 45.) Our review of the evidence
submitted in this case and the WCJ’s findings show that the WCJ complied with this
directive. The WCJ’s findings permitted ample appellate review and do not force
this Court to “imagine why the WCJ believed one witness over another[.]” Id. As
explained above, the WCJ articulated objective reasons for finding Dr. Wiley’s
36
testimony credible and finding Dr. Bora to be not credible. Moreover, a WCJ need
not “discuss all of the evidence presented[]” but only “to make the findings necessary
to resolve the issues raised by the evidence and relevant to the decision.” Dorsey
893 A.2d at 194 n.4. Because it cannot be said that a reasonable person would not
find the evidence of record to support the WCJ’s findings, Furnari, 90 A.3d at 60,
and because substantial evidence exists to support those findings, Leon E.
Wintermyer, Inc., 812 A.2d at 487 n.14, it is not within this Court’s authority to
disturb them.
Third, Employer argues that the WCJ mischaracterized Dr. Bora’s testimony
with regard to Dr. Bora’s reliance on Coworker and Claimant’s prior relationship.
The WCJ found that Dr. Bora’s position was that “because . . . Claimant flirted with”
and “had a prior sexual relationship with” Coworker, Claimant was not raped. (FOF
¶ 16.) Our review of Dr. Bora’s testimony is consistent with this finding. After
being asked whether Dr. Bora “believed that some sort of rape or sexual assault
occurred on May 20[], 2018[,]” Dr. Bora testified: “Based on the records that I
reviewed, it’s not clear to me that a rape occurred. [C]laimant was texting
[Coworker] immediately prior to the incident and after the incident, they had a
history of sexual relations previously[, and i]t appeared they were having an ongoing
flirtation[.]” (R.R. at 653a.) Given the consistency between this testimony and the
WCJ’s finding, we disagree that the WCJ mischaracterized Dr. Bora’s reliance on
Coworker and Claimant’s prior relationship.
Employer last argues that the WCJ’s findings were arbitrary and capricious
because the WCJ ignored evidence showing that the sexual intercourse was
consensual. We disagree. A review of the WCJ’s findings show that the WCJ
complied with the reasoned decision requirements by “adequately explain[ing] the
37
reasons for rejecting or discrediting competent evidence.” 77 P.S. § 834. With
regard to the text messages that Claimant sent to Coworker after the May 20, 2018
incident that used the term “lol,” the WCJ found that it was “not possible to
accurately ascribe sentiment or emotion to texts[,]” but that Claimant sent the texts
to “confront[ Coworker] by [] telling [Coworker] that she was upset over” the
incident, that Claimant’s “appetite was affected[,]” “that she could not ignore what
had happened[,]” and that Claimant “felt used and violated.” (FOF ¶ 12.) The WCJ
also found that “[t]hese texts were sent before Claimant was told that [Coworker]
was married.” (Id.) Next, with respect to the “signed statement” that Claimant gave
to the State Police, the WCJ reviewed the videotape of Claimant’s interview with
Trooper and Trooper’s testimony and determined that Trooper’s conclusions that
Claimant consented to the sexual intercourse and his interview and investigation
approach were not reliable. (Id. ¶¶ 13, 18.) The WCJ explained that Trooper’s
decision to write questions that “presuppose an answer compelling a conclusion that
the sex was consensual” amounted to a leading approach and that the resulting
document did not constitute Claimant’s “statement.” (Id. ¶ 18.) The WCJ also
disagreed with Trooper’s opinion that Claimant was only upset because she found
out that Coworker was married. (Id.) Accordingly, the WCJ rejected Trooper’s
conclusions as to consent as unreliable and also did not credit Claimant’s
“statement” due to the leading nature of the questions that Trooper wrote for
Claimant. Id. These findings show that the WCJ did not “deliberate[ly] and
baseless[ly] disregard . . . apparently trustworthy evidence.” Williams, 862 A.2d at
144. Rather, the WCJ adequately explained the reasons for rejecting this evidence.
While Employer asks this Court to instead determine that this evidence shows that
the sexual intercourse was consensual, such an evidentiary determination is within
38
the discretion of the WCJ in these matters. Thompson, 781 A.2d at 1150. Because
the WCJ’s findings were supported by substantial evidence and complied with the
reasoned decision requirements, the WCJ’s findings were not arbitrary or capricious.
D. Whether the WCJ’s crediting of Officer’s testimony as reliable and
consistent with Claimant’s testimony constituted reversible error.
1. Parties’ Arguments
Employer last argues that the WCJ erred in finding Officer’s testimony to be
credible because Officer did not testify in this matter. Because the WCJ found
Officer’s testimony to be credible and accepted it as fact, Employer maintains that
the WCJ’s credibility determination as to Claimant constituted reversible error, as
the WCJ relied in part on the consistency between Officer’s and Claimant’s
testimony.
Claimant acknowledges that the WCJ’s finding that Officer’s testimony was
credible was in error but asserts that this error was harmless because any statements
alleged to have been made by Officer were merely cumulative of Claimant’s
testimony and established through other evidence of record. (Claimant’s Br. at 23.)
2. Analysis
This Court has held that a WCJ’s error is harmless where “other competent
evidence, standing alone, exists in the record to support the [WCJ’s] findings.”
Nabisco, Inc. v. Workmen’s Comp. Appeal Bd. (Cummings), 651 A.2d 716, 718-19
(Pa. Cmwlth. 1994). In Nabisco, the WCJ erred by admitting hearsay evidence that
supported the finding that the claimant was injured while in the course of
employment. We held that the error was harmless because the WCJ also relied on
the testimony of other witnesses to support the WCJ’s findings. Id. at 719.
39
Here, the WCJ’s crediting of Officer’s testimony was harmless error. While
Officer did not offer any testimony, the WCJ found that “[t]he testimony of Officer
[] has been reviewed and is found credible and persuasive.[19] [Officer’s] testimony
is consistent with Claimant’s credible testimony and is accepted as fact.” (FOF
¶ 17.) Further, the WCJ found that “Claimant’s testimony is also support[ed] by the
testimony of Officer [].” (Id. ¶ 14.) However, the WCJ did not state what
evidentiary findings were made based on Officer’s testimony. With regard to using
Officer’s testimony to support Claimant’s testimony, the WCJ also relied on
Claimant’s demeanor during live testimony, Claimant’s deposition testimony, and
the videotape interview with Trooper. Such evidence is more than sufficient for a
WCJ’s credibility determination, given that “a WCJ may satisfy the reasoned
decision requirements by basing a credibility determination on a witness’s demeanor
during live testimony.” Daniels, 828 A.2d at 1052-53. Moreover, there is nothing
to suggest that the WCJ would not have made the same credibility determination as
to Claimant without Officer’s “testimony.” Further, Claimant’s testimony regarding
the conversation with Officer is also supported by the testimony of Employer’s own
witness, EEO Director. (Id. ¶ 11(d).) Accordingly, because “other competent
evidence, standing alone, exists to support the [WCJ’s] findings,” Nabisco Inc., 651
A.2d at 718-19, any error of the WCJ in this matter was harmless.
III. CONCLUSION
In sum: (1) the WCJ had the authority and jurisdiction to determine that
abnormal working conditions caused Claimant’s psychological injuries, regardless
of whether the evidence implicates criminal conduct; (2) because Claimant credibly
19
After review, it appears that the WCJ misunderstood EEO Director’s notes of the
interview with Officer to be Officer’s testimony in this matter.
40
testified to actual events, corroboration was not necessary to prove that the abnormal
working conditions existed; (3) the WCJ’s findings were not arbitrary and capricious
and were supported by substantial evidence of record; and (4) the WCJ’s crediting
of Officer’s testimony constituted harmless error. Accordingly, we affirm the
Board’s Order.
_____________________________________
RENÉE COHN JUBELIRER, Judge
Judge Fizzano Cannon did not participate in the decision in this case.
41
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Department of Corrections - SCI :
Chester, :
Petitioner :
:
v. : No. 150 C.D. 2021
:
Workers’ Compensation Appeal :
Board, :
Respondent :
ORDER
NOW, November 10, 2021, the Order of Workers’ Compensation Appeal
Board, entered in the above-captioned matter, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge