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08/18/97 ROBERT A. LINSKEY v. WORKERS' COMPENSATION

August 18, 1997

ROBERT A. LINSKEY, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (CITY OF PHILADELPHIA), RESPONDENT



Appealed From No. A95-3307. State Agency Workers' Compensation Appeal Board.

Before: Honorable Dan Pellegrini, Judge, Honorable James R. Kelley, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Senior Judge Narick.

The opinion of the court was delivered by: Narick

OPINION BY

SENIOR JUDGE NARICK

FILED: August 18, 1997

The issue before us is whether a firefighter/rescue worker who sustains psychological injury while working is entitled to collect workers' compensation benefits if he fails to prove that the working condition to which he was exposed was abnormal.

Robert A. Linskey (Claimant) appeals from the order of the Workers' Compensation Appeal Board (WCAB) that reversed the Workers' Compensation Judge's (WCJ) grant of benefits to Claimant. We affirm.

Claimant began working for the City of Philadelphia as a firefighter and rescue squad worker in 1981. *fn1 After joining the City's Fire Department (Department), Claimant spent three weeks undergoing rescue squad training. Claimant's first active duty assignment was with Engine 68. Rescue Squad 3 operated from the same facility. Claimant performed firefighting duties and approximately every five weeks would be scheduled for rescue squad duty with Rescue Squad 3. Rescue Squad 3 was ranked the fourth busiest in the city based on the number of runs.

Shortly after beginning work, Claimant responded in his rescue worker capacity to a call and found a man who had committed suicide by hanging. Following this incident, Claimant began seeing a psychologist while continuing to perform his job duties. However, in 1982, Claimant became institutionalized for approximately thirty-two days. *fn2 After being released, Claimant continued to take Lithium, receiving follow-up care but returned to his time-of-injury position performing the same duties, including working with the rescue squad.

After working with Engine 68, Rescue 3 for approximately five and one-half years, Claimant requested a transfer to a slower station. Sometime in 1986, the Department transferred Claimant to Engine 11, Rescue 21 in South Philadelphia. Because the station was smaller and had fewer employees, Claimant was required to work the rescue squad every three to four weeks. According to Claimant, he remained depressed, even after switching to this new station. On November 17, 1986, Claimant became hospitalized because of suicidal tendencies and has not worked since.

Claimant filed for workers' compensation benefits which the Department denied. *fn3 A hearing was held at which time Claimant, Claimant's expert, John F. Brady, M.D., and Les Yost, President of the City Firefighters' Union testified. Employer introduced the testimony of Cynthia Hawthorne, Employer's Personnel Director and Timothy Michaels, M.D., a board-certified psychiatrist. Following the hearing, the WCJ credited Claimant and his expert's testimony over that of Employer's expert, holding that Claimant's employment as a rescue worker led to his psychological disability.

Employer appealed to the WCAB on the basis that the WCJ committed an error of law in holding that Claimant had sustained a compensable work-related psychiatric injury as he had not been subjected to abnormal working conditions. The WCAB reversed, holding that Claimant did not show abnormal working conditions caused the psychiatric injury relying on Cadden v. Workmen's Compensation Appeal Board (City of Philadelphia), 135 Pa. Commw. 195, 579 A.2d 1378 (Pa. Commw. 1990).

On appeal to this Court, *fn4 Claimant argues that the WCAB erred in reversing the WCJ's determination because Claimant had failed to establish abnormal working conditions caused his psychiatric injury.

A claimant has the burden of proof to recover workers' compensation benefits for a psychiatric injury under a heightened burden of proof. Hershey Chocolate Co. v. Workmen's Compensation Appeal Board (Lasher), 546 Pa. 27, 682 A.2d 1257 (1996). Because of the highly subjective nature of psychiatric injuries, the occurrence of the injury and its cause must be adequately pinpointed. Thomas v. Workmen's Compensation Appeal Board (Atlantic Refining Co.), 55 Pa. Commw. 449, 423 A.2d 784 (Pa. Commw. 1980). A claimant must prove by objective evidence that he sustained a psychiatric injury and that this injury is other than a subjective reaction to normal working conditions. Hershey. Once the claimant pinpoints the occurrence of injury, the second element is met when the claimant proves an "abnormal working" condition. Id. Abnormal working conditions can be shown by: 1) proving a sudden change or unusual event in the work place; 2) comparing the conditions of the claimant to those of his fellow employees performing similar duties; or 3) showing a change in duties coupled with an increase in responsibilities. Berardelli v. Workmen's Compensation Appeal Board (Bureau of ...


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