City of Pittsburgh v. Logan

DOYLE, President Judge.

The City of Pittsburgh (City or Employer) appeals from an order of the Court of Common Pleas of Allegheny County that affirmed an arbitrator’s decision granting Patrick Logan’s claim petition for benefits pursuant to what is frequently referred to as the Heart and Lung Act.¹ Due to the evolution of case law on this subject, the essential issue presented is whether there are ever any working conditions that can be considered abnormal for a police officer, given the highly stressful nature of a police officer’s daily work life; we believe that there may be, and that this is such a case.

On October 21, 1998, Logan, a City police officer, filed a claim petition for benefits under the Heart and Lung Act, alleging that he suffered from work-related “[ajmdety attacks — post-traumatic stress disorder — severe” and that the “[cjumula-tive effect of police shooting resulted in psychological disability. Primarily threats of harm to family.” (Reproduced Record (R.R.) at 2a.) Logan sought full disability benefits beginning October 9, 1998 as well as the payment of his medical bills. (R.R. at 3a.)

Arbitration hearings were held on January 11,1999, February 3, 1999, and February 19, 1999, at which time only Logan presented witnesses, although both parties offered exhibits to support their respective positions. By an opinion dated July 7, 1999, the arbitrator found:

Claimant in the course of his duties has been in seven shootouts, has been stabbed three times, has had fractures of his skull, face, right arm, and wrist, and in early 1998 had been assaulted four separate times. In November 1993 he was involved in a shootout with an assailant who shot at his face from point blank range. Claimant and other officers on the scene returned fire killing the assailant. The assailant’s family and/or gang placed a $50,000.00 bounty on Claimant for his death, and Claimant was then transferred to a different unit.

(Arbitrator’s Decision, p. 3; R.R. at 226a.)

The arbitrator evaluated the reports of various doctors and mental health experts, including Harlan B. Handler, M.D., Clarissa Cabacungan, M.D., and Russell H. Scott, Ph.D., who treated Logan, and who believed him to have suffered a work-related psychic injury. The arbitrator also considered the report of an independent psychiatric examiner, Stuart S. Burstein, M.D., who believed that Logan had no mental disability. After considering all of the evidence, the arbitrator found:

In the instant case the credible and consistent testimony of Claimant and his witnesses, particularly Lieutenant [Phillip] Dacey who distinguished Claimant’s experiences from normal typical experiences is persuasive of the requisite abnormal working conditions. The reports of treating Drs. Cabacungan, Handler, and Scott suffice to establish causation and disability, and are credited over the report of the examiner, Dr. Burstein.

(Arbitrator’s Decision, p. 9; R.R. at 232a.) The arbitrator concluded as a matter of law that “Claimant did prove a disabling post traumatic stress disorder and panic disorder as the result of abnormal working conditions in the course of duty.” (Arbitrator’s decision, Conclusion of Law No. 5, p. 10; R.R. at 233a.) (Emphasis added.)

On appeal, the Court of Common Pleas of Allegheny County affirmed the arbitrator’s decision, explaining, inter alia, that “[t]he case of City of Philadelphia v. Ryder, 712 A.2d 350 (Pa.Cmwlth. [1998) ] is controlling on the issue of what constitutes abnormal working conditions. The facts presented by Officer Logan are more compelling than those in Ryder.” (Common Pleas decision, dated December 15, 1999, p. 2; R.R. at 256a.)² However, we note that, while this Court in Ryder upheld an award of benefits for post-traumatic stress disorder suffered by police officer Howard Ryder as a result of a standoff that we determined to be an actual extraordinary event, this Court later stated in Young v. Workers’ Compensation Appeal Board (New Sewickley Police Department), 737 A.2d 317 (Pa.Cmwlth.1999), that our Supreme Court’s decision in City of Philadelphia v. Workers’ Compensation Appeal Board (Brasten), 556 Pa. 400, 728 A.2d 938 (1999), had overruled Ryder sub silentio. Our analysis in Young has since been confirmed by the Supreme Court’s very recent decision in City of Philadelphia v. Civil Service Commission of the City of Philadelphia (Ryder), 772 A.2d 962, 2001 Pa. LEXIS 1083 (May 21, 2001), in which the Supreme Court did indeed reverse our earlier Ryder decision.

As a result of the decision in Common Pleas, Employer appealed to this Court, raising the issue of whether the arbitrator erred in deciding that Logan met his burden of proving a psychic injury where, the City contends, Logan failed to demonstrate abnormal working conditions in the performance of his job duties.³

We begin our analysis by noting that, in Heart and Lung Act cases, just as in workers’ compensation cases, “where a claimant suffers a psychological injury caused by psychological stimuli while in [the] performance of his or her duty, the claimant must prove that such injury is other than a subjective reaction to normal working conditions.” Rodgers v. Pennsylvania State Police, 759 A.2d 424, 429 (Pa.Cmwlth.2000), petition for allowance of appeal denied, 771 A.2d 1292 (Pa.2001). Regarding this issue, the law is now settled that both the Heart and Lung Act and the Workers’ Compensation Act⁴ require a claimant to establish abnormal working conditions in the absence of direct and immediate physical trauma as the causation for the claimant’s mental disability.

Employer in the instant case contends that Logan has not sufficiently met his burden of proving abnormal working conditions, and, therefore, he cannot properly receive Heart and Lung benefits due to his psychic injury. Specifically, Employer states in its brief that “[t]he basis of this appeal is not whether the claimant established a causal relationship between his mental condition and his work environment, but whether such conditions rose to the level of an abnormal work condition.” (Appellant’s brief, p. 6, n. 2.) In essence, Employer contends that Logan’s testimony of work-related mental stress, albeit caused by cumulative trauma, particularly trauma arising out of a shooting incident involving the police and one Maniea (a.k.a. Stoney) Bey, which eventually led to media attention and a bounty on Logan and his family, does not support a finding of abnormal working conditions. Employer cites a number of cases in an attempt to support its position.⁵

Of course, “[pjsychic injury cases are highly fact sensitive.” Clowes v. Workmen’s Compensation Appeal Board (City of Pittsburgh), 162 Pa.Cmwlth.583, 689 A.2d 944, 948 (1994), petition for allowance of appeal denied, 543 Pa. 697, 670 A.2d 144 (1995). The question of whether working conditions are abnormal is a mixed one of law and fact. Id. Consequently, we may adjudicate the correctness of the arbitrator’s decision that Logan suffered from abnormal working conditions and derive our own conclusions from the facts as part of the appellate review process. See id.

In the matter sub judice, Logan testified not only to his long tenure as a police officer and to the difficulties inherent in his normally highly stressful job, but also to the significant trauma that he and his family suffered after the Stoney Bey incident,⁶ and to the cumulative effects of that incident on him, when considered in light of several unrelated but nevertheless violent episodes occurring thereafter. In this regard, Logan testified that he was hired to be a City police officer on February 10, 1969, when he was twenty-one years old (N.T., 2/3/99, p. 5; R.R. at 70a), and that, in the more than thirty years that he had been a police officer, he had been involved in seven police-related shooting incidents, including one in which he shot the suspect, but not before his partner was severely beaten. (N.T., 2/3/99, pp. 5, 9-10; R.R. at 70a, 74a-75a.)

Logan also testified that the last shooting in which he was involved happened in November 1993, when “[s]ome drug officers or uniformed officers were making a stop of a guy up in East Liberty, and the actor’s name was Maniea Bey. And he took off running. He got to Penn Avenue, and he started shooting at the police, officers returning fire.” (N.T., 2/3/99, p. 11; R.R. at 76a.) Logan’s testimony then continues:

I proceeded to go to try and apprehend him. I looked around the — I looked around the back end of the truck that he was hiding behind. He stuck a gun to the middle of my forehead from like this when I looked around the car. He told me to “die mother f:: * * *

And I turned my head quickly like this, and the gun went off. He fired the gun, and it went off exactly, well, not exactly, let’s say, between four to six inches from my face.

I pushed myself up against the car, and I pointed my gun around the car. I wasn’t looking where he was at. I just put my gun around the car. And I kept firing my gun until it jammed, and when it jammed I just collapsed at the scene.

Later I was to find out that 13 of the 17 rounds that he was hit with were from my gun.

(N.T., 2/3/99, pp. 11-12; R.R. at 76a-77a.)⁷

Logan testified that, afterwards, there were countless newspaper articles on the incident, and he was called a killer and a murderer. (N.T., 2/3/99, p. 13; R.R. at 78a.) There was also a “constant barrage from the news media” and marches (N.T., 2/3/99, p. 14; R.R. at 79a) and a two-day inquest. (N.T., 2/3/99, p. 15; R.R. at 80a.) Logan stated that, some time after the shooting was officially determined to be justified, he was transferred to the warrant office for his own safety and, of the eight officers involved in the Bey incident, only he was transferred. (N.T., 2/3/99, pp. 17-18; R.R. at 82a-83a.) Logan further testified that, after the Bey shooting, he became aware of potential threats against him and his family through Lieutenant Phillip Dacey. Logan stated in this regard: “He called me in his office and he says, I have something to tell you. He says, We have an informant, and the informant has advised us that a $50,000 bounty has been placed on you and your family’s head by members of the C.R.I.P. gang.” (N.T., 2/3/99, p. 21; R.R. at 86a.)

Logan explained that his wife “became terrified[,]” that she went to see a psychologist, Dr. Russell Scott, for approximately six months because of “night terrors and nightmares[,]” and that he would have to sit up at night so that she could sleep. (N.T., 2/3/99, pp. 21-22; R.R. at 86a-87a.) He also testified that, as a result of the Bey incident, three gang members cornered one of his sons at school and. told him they intended to kill him before the day’s end. (N.T., 2/3/99, p. 23; R.R. at 88a.) According to Logan:

From that time on, my son ate in the cafeteria with the security, he stopped participating in a lot of class activities. The three gang members were transferred out of the school to other locations.

I had to take my son to and from school every day until the time he graduated. In his final years as a senior, he stopped playing football because they started on him again about the shooting, about the stuff. So he stopped almost all the activities he had as a child because of the shooting.

Id.

Logan proceeded to testify that, during the year 1998, he began to have some problems and went to see Dr. Gerald Mas-saro, the city psychologist, after he received his fourth beating in less than six months. (N.T., 2/3/99, p. 24; R.R. at 89a.) According to Logan, these beatings occurred between late November 1997 and May 1998, and they included being beaten by an armed rape suspect while his fellow officers were not near enough to come to his aid (N.T., 2/3/99, p. 32; R.R. at 97a), wrestling with an HIV-infected prostitute who scratched, spat and tried to bite the officers (N.T., 2/3/99, p. 33; R.R. at 98a), and attempting to arrest a man who “knee dropfped]” on his testicles, causing them to swell larger than lemons. (N.T., 2/3/99, pp. 34-35; R.R. at 99a-100a.) After this incident, Logan went to the hospital and “was x-rayed for a concussion and injuries to [his] groin and chest[,]” and was off of work for two weeks. (N.T., 2/3/99, p. 35; R.R. at 100a.) When he returned to work, his testicles were still swollen. Although Logan testified that Dr. Massaro was too busy to take his case (N.T., 2/3/99, p. 24; R.R. at 89a), he further explained that, once again, he was having the same type of problems that he had after the Bey incident. Id. Logan testified:

A week after the shooting I had nightmares, insomnia, not sleeping, getting three hours of sleep a day, sometimes four hours of sleep a day, wake up in the middle of the night crying for no apparent reason, outbursts of anger at my wife for something stupid, just start screaming.

The nightmares were the worst because they came three and four a week at times. After the last beating, they were, like, every night. That’s when I went to see Dr. Massaro.

(N.T., 2/3/99, pp. 24-25; R.R. at 89a-90a.)

Logan also stated that, when he was due to be in court on September 9, 1998, he:

started having things that had happened years ago come back in my head, just play like a videotape in front of me.

Shooting incidents that I’ve had over the years, the fact that at one time I had carried a baby out of a house that a father had shot in the head and took to the hospital and couldn’t save, just a lot of gory stuff that happened that just started coming back like a flood. Then I thought I was going to die.

(N.T., 2/3/99, p. 27; R.R. at 92a.)

Although the life of a police officer is fraught by great stress, we nevertheless hold that, based on all of the credited testimony, claimant’s work performance (as distinguished from a mere job description) was unusually stressful for that kind of job, and an unusual event occurred making the job more stressful that it had been. Clowes, 639 A.2d at 948 (quoting Bell Telephone Company of Pennsylvania v. Workmen’s Compensation Appeal Board (DeMay), 87 Pa.Cmwlth. 558, 487 A.2d 1053, 1059 (1985) (Doyle, J., concurring and dissenting)).

Here, the arbitrator credited in particular the testimony of Logan’s lieutenant, Phillip Dacey, who testified, inter alia, that the threat to Logan was “the most serious threat I have ever received on an officer” (N.T., dated January 11, 1999, Testimony of Phillip Dacey, p. 12; R.R. at 18a.); that, even when threats were made, it was not common practice to transfer an officer from one unit to another (N.T., %, 1999, p. 5; R.R. at 141a), and that, in the course of his professional career, he had never heard of another instance where a bounty or a contract was placed on an officer. (N.T., 2/19/99, pp. 13-14; R.R. at 149a-150a.) Clearly, Dacey’s testimony is sufficient to support “a finding that an unusual event occurred making the job more stressful than it had been.” Clowes, 639 A.2d at 948 (quoting DeMay, 487 A.2d at 1059 (Doyle, J., concurring and dissenting)). In other words, in this specific instance, Logan proved that the type of threat placed on his life and the lives of his family, taken together with all of the other events that occurred in this case, amounted to an abnormal working condition, even for a police officer.

Unlike Brasten, where representatives of the Philadelphia Police Department testified that the events and shooting incident which occurred on June 26, 1992 were normal working conditions for a Philadelphia police sergeant (Sergeant Brasten), here, by contrast, Lieutenant Dacey credibly testified that what happened to Logan was anything but normal.⁸ Moreover, further distinguished from the facts in Bras-ten, Officer Logan and his family were subjected to serious death threats by the criminal element in our society, and we consider these threats a “working condition” essentially and directly connected to the shooting incident of Stoney Bey in November of 1993.

In summary, it is our opinion that Officer Logan is entitled to benefits for a mental/mental injury where he proved not only that he suffered an unusual work event that resulted in a mental disability, but also that the cumulative effects of that unusual event were compounded by other factors, most notably, four violent episodes occurring in no more than a six-month period.⁹ These factors were, of course, directly related to his duties as a police officer, and, all of them, most remarkably, the death threats, rose to the level of abnormal working conditions, even for a police officer.

Accordingly, the order of the Allegheny County Common Pleas Court is affirmed, albeit on different grounds.¹⁰

ORDER

NOW, July 19, 2001, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is hereby affirmed.

1 . Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637-38.

2 .The "Ryder " case is more properly cited as City of Philadelphia v. Civil Service Commission of Philadelphia, 712 A.2d 350 (Pa.Cmwlth.1998), petition for allowance of appeal granted in part, 559 Pa. 383, 740 A.2d 1141 (1999). See a further discussion of this case on page 873 of this opinion, infra.

3 . By per curiam order dated March 12, 2001, this Court approved the parties’ stipulation that " 'the reproduced record is the entire record which [shall] be considered by the Commonwealth Court of Pennsylvania.’ ”

4 . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2626.

5 . These cases include Rydzewski v. Workers' Compensation Appeal Board (City of Philadelphia), 767 A.2d 13 (Pa.Cmwlth.2001) (where benefits for a mental/mental injury were ultimately denied to the claimant, a City of Philadelphia police officer, who responded to a call to assist two other officers who were shot and seriously injured, as the claimant did not prove that his experience constituted an abnormal working condition for a person in his line of work); Young (where benefits for a mental/mental injury were ultimately denied to the claimant, a township police officer, because the stand-off event in which he was involved was not an abnormal working condition for a police officer); Brasten (where an evenly divided Supreme Court affirmed this Court's decision that the claimant, a City of Philadelphia police sergeant, who shot and killed an unarmed suspect and then underwent a grand jury investigation, indictment, trial and media attention, had not proven abnormal working conditions such that he could recover for a mental/mental injury); and Parson v. Workmen’s Compensation Appeal Board (Springettsbury Township), 164 Pa.Cmwlth.165, 642 A.2d 579 (1994) (where benefits for a mental/mental injury were denied to the claimant, a township police officer, because an eight-hour incident involving him, other officers, and a barricaded gunman, did not rise to the level of an abnormal working condition). Employer also states that this Court determined in City of Scranton v. Workmen’s Compensation Appeal Board (Hart), 136 Pa.Cmwlth.483, 583 A.2d 852 (1990), petition for allowance of appeal denied, 528 Pa. 625, 597 A.2d 1154 (1991), that “the stress placed on a police officer associated with an unusually intense investigation of a serial murder, even when one of the victims was a neighboring family friend, did not constitute an abnormal work condition.” (Appellant’s brief, p. 10.) In making this statement, Employer most assuredly relied on the following language in the opinion that, “It is quite clear that the work performance required of Hart was extremely difficult and stressful, but for his position, this type of stress was normal.” Hart, 583 A.2d at 857. However, this Court eventually concluded that, because Hart was given new responsibilities in addition to his regular duties due to the startling increase in murders, and because his stress level increased due to community pressure to solve the crimes and to his numerous work-related out-of-town trips to attend trials and analyze evidence, Hart did suffer a psychic injury as a result of abnormal working conditions. Id. at 858. While we acknowledge that the final result in Hart was to uphold an award of fatal claim benefits to the detective’s widow, we nevertheless question the continuing viability of Hart in light of the more recent decisions of our Court and the Supreme Court, recounted above.

6 . According to Logan’s testimony, Bey “had been in the gang activity for years. He was part of the hierarchy of the C.R.I.P. gang.” (Notes of Testimony (N.T.), Testimony of Patrick Logan dated February 3, 1999, p. 69; R.R. at 134a.)

7 . Even so, it appears from the record that, while Logan fired most of the bullets that hit Stoney Bey, a bullet from another officer’s gun struck him in the heart. (N.T., dated February 19, 1999, Testimony of Lieutenant Phillip Dacey, p. 12; R.R. at 148a.)

8 . In Young, we explained the Supreme Court’s reasoning in Brasten by stating:

Although Justices Nigro, Castille and Newman would hold that the events following the police action were abnormal working conditions, they joined Justices Zappala and Cappy and Chief Justice Flaherty in finding that the extremely stressful police action preceding the indictment of the police officer which resulted in the death of an individual was not an abnormal working condition for a police officer. Therefore, what we can distill from Brasten is that all six Justices agreed that the shooting incident itself was not an abnormal working condition for a police officer, and the logi-caí conclusion of that distillation is that, if the events in Brasten were not abnormal working conditions, then the facts and events in this present appeal also cannot be an abnormal working condition in the view of our Supreme Court.

Young, 737 A.2d at 321-322. (Emphasis added and in original.)

9 . Because Logan, with respect to these four beatings, described actual events rather than subjective feelings, his testimony alone is sufficient to establish abnormal working conditions. Archer v. Workmen’s Compensation Appeal Board (General Motors), 138 Pa.Cmwlth. 309, 587 A.2d 901, 907 (1991).

10 . We may affirm on different grounds where grounds for an affirmance exist. Belitskus v. Hamlin Township, 764 A.2d 669, 671, n. 4 (Pa.Cmwlth.2000).