Pennsylvania Department of Corrections v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Judge FRIEDMAN.

I respectfully dissent. Although there has not been an indecent assault upon a food service instructor in twenty-five years at SCI-Waymart, the majority concludes that an indecent assault, which is a crime in this Commonwealth, does not constitute an abnormal working condition when it happens to a food service instructor working at a minimum security prison for the Pennsylvania Department of Corrections (Employer). In other words, because it is normal for food service instructors at SCI-Waymart to be victims of the crime of indecent assault, Lynda Cantarella’s (Claimant) psychic injury from the indecent assault that occurred in this case is merely a subjective reaction to a normal working condition. I cannot agree.

I. Abnormal Working Conditions

A. The Law

To recover workers’ compensation benefits for a psychic injury, a claimant has the burden of proving by objective evidence that he or she has suffered a psychic injury and that such injury is other than a subjective reaction to normal working conditions. Martin v. Ketchum, Inc., 523 Pa. 509, 568 A.2d 159 (1990). To meet this burden, the claimant must demonstrate either (1) that actual extraordinary events occurred at work, which can be pinpointed in time, causing the trauma experienced by him or her, or (2) that abnormal conditions over a longer period of time caused the mental injury. US Airways v. Workers’ Compensation Appeal Board (Long), 756 A.2d 96, 101 (Pa.Cmwlth.2000), appeal denied, 565 Pa. 659, 771 A.2d 1293 (2001).

“Objective evidence which is corroborative of an employee’s perception is necessary in determining the existence of abnormal working conditions. An employee’s testimony alone on this issue is not sufficient.” Volterano v. Workmen’s Compensation Appeal Board, 536 Pa. 335, 346, 639 A.2d 453, 458 (1994). However, corroborative evidence is not required when an employee is describing actual events that have occurred and the workers’ compensation judge finds that such events did occur. Donovan v. Workers’ Compensation Appeal Board (Academy Medical Realty), 739 A.2d 1156, 1163 (Pa.Cmwlth.1999), appeal denied, 563 Pa. 678, 759 A.2d 924 (2000).

In addition, “psychic injury cases are highly fact-sensitive and for actual work conditions to be considered abnormal, they must be considered in the context of the specific employment.” Wilson v. Workmen’s Compensation Appeal Board (Aluminum Co. of America), 542 Pa. 614, 624, 669 A.2d 338, 343 (1996). To establish an abnormal working condition in a high stress working environment, a claimant must show that her work performance was unusually stressful for that kind of job or that an unusual event made the job more stressful than it had been. Clowes v. Workmen’s Compensation Appeal Board (City of Pittsburgh), 162 Pa.Cmwlth.583, 639 A.2d 944 (1994), appeal denied, 543 Pa. 697, 670 A.2d 144 (1995). Whether the findings of fact support a conclusion that the claimant has been exposed to abnormal working conditions is a question of law that is fully reviewable on appeal. Id.

B. The Facts

Here, Claimant suffers from post-traumatic stress syndrome as a result of an actual extraordinary event at work, the commission of the crime of indecent assault against her.¹ The WCJ found that the event occurred. (WCJ’s Findings of Fact, No. 7.) The WCJ also considered the event in the context of Claimant’s specific employment and found that “[CJlaimant was not aware of any person working in ... the service department ever having been sexually assaulted by an inmate.” (WCJ’s Findings of Fact, No. 9) (emphasis added). In fact, the WCJ found • that “there had not been a sexual assault in 25 years on anyone who had worked as a food service instructor.”² (WCJ’s Findings of Fact, No. 15.) Finally, the WCJ found that being the victim of the crime of indecent assault made Claimant’s job as a food service instructor more stressful than it had been. (See WCJ’s Findings of Fact, Nos. 10-12.) Based on these findings of fact, I submit that the WCJ properly concluded that the indecent assault on Claimant by an inmate constituted an abnormal working condition and that Claimant was entitled to benefits for her resulting psychic injury.

II. The Majority View

In reversing the Workers’ Compensation Appeal Board’s (WCAB) affirmance of the WCJ’s decision, the majority prefers to make its own findings of fact from evidence given no weight by the WCJ.³ The majority states:

Claimant’s own testimony belies that touching was abnormal: Claimant testified that she had been assaulted by inmates in the past; that other employees had been physically assaulted;[⁴] that inmates made comments of a sexual nature towards her;[⁵] that the majority of prisoners housed at SCI-Waymart were sexual offenders;[⁶] that there was a constant threat of attacks on employees; [⁷] and that all employees underwent defensive training to be able to defend themselves.[⁸]

(Majority op. at 863.) These are not findings of fact of the WCJ.

Moreover, in considering Claimant’s testimony, the majority does not give Claimant the benefit of the most favorable inferences to be drawn from that testimony.⁹ For example, the majority states that Claimant had been assaulted by inmates in the past. However, Claimant’s testimony was that she had been “touched” by inmates, but not “in a harmful fashion.” (R.R. at 65a-66a.) There is a great difference between an unwelcome touching, which may be intentional or unintentional,¹⁰ and the crime of “assault,” which involves an attempt to cause bodily injury. See section 2701(a)(1) of the Crimes Code, 18 Pa.C.S. § 2701(a)(1). Claimant testified that no inmate ever touched her in a harmful fashion. Thus, according to Claimant, harmful touching was abnormal.

Accordingly, unlike the majority, I would affirm.

1 . Indecent assault is the touching of the sexual or other intimate parts of a person for the purpose of arousing or gratifying sexual desire without the other person's consent. Sections 3101 and 3126 of the Crimes Code, 18 Pa.C.S. §§ 3101, 3126.

2 . This finding was based on the testimony of an employee who had worked at SCI-Way-mart for twenty-five years. (R.R. at 87a.)

3 . In making its own findings of fact and reweighing the evidence in the record, the majority exceeds this court's limited scope of review. Indeed, the appellate role in a workers’ compensation case is not to re-weigh the evidence or review the credibility of the witnesses; rather, the appellate court must simply determine whether the WCJ’s findings have the requisite measure of support in the record as a whole. Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992).

4 . Claimant’s testimony was that, using her definition of assault as "whenever an inmate touches you in any fashion,” one other employee had been assaulted by an inmate. (R.R. at 67a.) Claimant did not indicate whether that employee was a food service instructor.

5 . Claimant testified that it was "unusual" for inmates to make sexually offensive comments to her. (R.R. at 65a.)

6 . It is true that Claimant presented such testimony. (R.R. at 62a.) However, Claimant’s supervisor testified that the prison population at SCI-Waymart is 1,252, and 1,150 inmates are level two minimum security prisoners, the least dangerous category of inmate. (R.R. at 28a, 108a.) Claimant’s supervisor also testified that, although there are a lot of sex offenders at SCI-Waymart, “they will be doing [the] tail end of their sentence[s]” after being downgraded from level five to level two. (R.R. at 109a.)

7 . Actually, when Claimant refused to agree that assaults on employees are not unusual at SCI-Waymart, Claimant’s counsel interrupted Claimant’s testimony and stipulated that there is a constant threat of attacks on employees at SCI-Waymart. (R.R. at 64a.)

8 . Claimant testified that employees "take defensive tactic training once a year ... for one day.” (R.R. at 25a.)

9 . The party who prevailed before the WCJ, Claimant in this matter, is entitled to the benefit of the most favorable inferences to be drawn from the evidence in the record. Fulton v. Workers’ Compensation Appeal Board (School District of Philadelphia), 707 A.2d 579 (Pa.Cmwlth.1998).

10 . Claimant explained that if "an inmate grabs an I.V. out of your hand and touches your finger ... it’s an assault-” (R.R. at 66a.) In fact, "[wjhenever an inmate touches you in any fashion, it’s considered an assault.” (R.R. at 67a.)