Tuesday, May 25, 2004

Commonwealth Court Reverses WCJ's Finding of Abnormal Working Condition in Supervisor's Pattern of Harassment

In RAG (Cyprus) Emerald Resource, LP v. WCAB (Hopton) the Claimant alleged mental/mental disability arising from several instances of homosexual advances by his supervisor. The Claimant's supervisor's homosexual statements were abhorrent, but the evidence suggested they were not sexual advances.

"(Finding of Fact)5. Joe Ross, the other employee in the jeep with the claimant, was so affected by Rossi's (the Supervisor's) statement that he asked Rossi if he was queer and told Rossi "Don't you ever talk to me like that, I don't take that bullshit, joke or not, don't ever talk to me like that." Rossi responded that he was just joking and that he knew that Hoppy (the Claimant) gets mad and was teasing him."

Of course, if the statements were sexual hrassment, the claim would not be compensible. Heath v. WCAB (Pennsylvania Board of Probation and Parole) appeal granted

The Commonwealth Court held the behavior was not abnormal working conditions, citing Philadelphia Newspapers, Inc. v. Workmen's Compensation Appeal Board (Guaracino), 544 Pa. 203, 675 A.2d 1213 (1996).

Another issue in the case was the basis for the Claimant's subjective reaction to what the Court found to be normal working conditions. Medical evidence suggested the Claimant reacted because he suffers from post traumatic stress disorder (PTSD) from his service in Vietnam. The Claimant's disability may be compensable in this circumstance, as pointed out in the dissenting statements of Judges Friedman and Leavitt. Zink v. Workers' Compensation Appeal Board (Graphic Packaging, Inc.), 828 A.2d 456 (Pa. Cmwlth. 2003) July 10, 2003 Post However, the WCJ did not resolve the issue of whether PTSD or a paranoid personality disorder was the underlying condition of the Claimant.

"(Finding of Fact) 18. ...Whether the claimant had post-traumatic stress disorder from Vietnam or had a paranoid personality disorder, the main point to this Workers' Compensation Judge is that the claimant was a working, functioning employee in the mines until harassed, aggravated and stirred up by the comments in the series of incidents involving Dominic Rossi. It is immaterial whether he has PTSD or personality disorder..."

The issue, as stated by the WCJ in the remainder of Finding of Fact 18, was whether the supervisor's "...course of conduct persisted in and clearly calculated to cause severe emotional distress on the part of the claimant..." was an abnormal working condition. The Commonwealth Court held it was not.

Pennsylvania Workers' Compensation Practice and Procedure Reference 3.149

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