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08/20/97 RICHARD VACTOR v. WORKERS' COMPENSATION

August 20, 1997

RICHARD VACTOR, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (GLENN'S DAIRY, INC.), RESPONDENT



Appealed From. No. A94-1517. State Agency Workers' Compensation Appeal Board.

Before: Honorable Joseph T. Doyle, Judge, Honorable Dan Pellegrini, Judge, Honorable Samuel L. Rodgers, Senior Judge. Opinion BY Judge Doyle.

The opinion of the court was delivered by: Doyle

OPINION BY JUDGE DOYLE

FILED: August 20, 1997

Richard Vactor (Claimant) appeals an order of the Workers' Compensation Appeal Board, which affirmed the decision of a workers' compensation Judge (WCJ) granting Claimant benefits for a closed period of time, and then suspending and ultimately terminating his benefits.

Claimant was employed by Walter Glenn (Employer), *fn1 owner of Glenn's Dairy, Inc., as a convenience store cashier. On September 21, 1993, when Claimant was working alone in the store, an armed and masked bandit entered and demanded that Claimant give him money. Claimant tried to comply with the robber's demands and open the cash register, but, afraid of being shot, he was excited and could not release the cash drawer. Although Claimant was behind a plexiglas shield which enclosed the cashier's area, the robber, apparently frustrated by Claimant's delay in emptying the cash register, reached through a small, rectangular opening in the shield and fired two rounds at Claimant. One round grazed Claimant and the other entered his left leg. Claimant managed to call 911 and was, subsequently, transported by ambulance to the hospital. He was discharged from the hospital the day after the shooting.

On November 22, 1993, Claimant filed a claim petition seeking total disability benefits for the gunshot wound to his left leg, and the matter was heard before the WCJ.

At the hearings, Claimant testified as to the facts of the shooting described above. Claimant further testified that he was mentally unable to return to his employment. He explained that he was "too scared to go back" to his job (Notes of Testimony, 4/4/94, at 15; Reproduced Record at 15a), and feared that he might be robbed and shot again. Claimant testified on cross-examination, however, that Employer informed him that his cashier job remained available but that he told Employer that he was never returning to that job.

Employer testified that, on or about October 12, 1993, he told Claimant that his job at the convenience store was still available, but that Claimant never returned to work. Employer stated that even as of the date of the hearing, April 4, 1994, Claimant's job remained available. Also, Employer presented the medical report of Dr. Chris Kahlenborn, dated March 25, 1994, who had examined Claimant at the request of Claimant's and Employer's counsel. Dr. Kahlenborn opined that Claimant was doing well and that the injury did not preclude him from doing any activity whatsoever.

Considering the above, the WCJ determined that Claimant was totally disabled from the gunshot wound for the closed period from September 22, 1993, to October 12, 1993, and granted Claimant benefits of $154 per week for that period of time. However, the WCJ found that Claimant refused available work within his abilities when Claimant failed to return to his job with Employer, and, accordingly, suspended Claimant's benefits, effective October 13, 1993. Based on Dr. Kahlenborn's opinion, the WCJ further found that Claimant's disability terminated on March 25, 1994.

Claimant appealed the WCJ's order to the Board, asserting that fear of returning to his employment, caused by the work-related robbery incident and gunshot wound, constituted good cause for his failure to return to his job with Employer. The Board, however, affirmed the WCJ and concluded that Claimant did not sustain his burden of proving a mental injury within the standard articulated by our Supreme Court in Martin v. Ketchum, 523 Pa. 509, 568 A.2d 159 (1990). The Board indicated that Claimant had to demonstrate that he was subjected to abnormal working conditions, and had to establish, through expert medical testimony, the connection between those abnormal conditions and his injury. Because Claimant presented only his own lay testimony in support of his petition, the Board determined that Claimant did not sustain his burden of proving a mental injury. This appeal followed.

On appeal, Claimant contends that (1) the WCJ's decision to suspend claimant's benefits was not supported by substantial evidence, and (2) the suspension was improper because Claimant's fear of being shot was a proper reaction to an abnormal working condition and justified his refusal to return to work. Claimant states in his brief that he stipulated to a closed period of disability (Claimant's Brief at 11), and asks this Court for the following relief:

Claimant asks [the] Commonwealth Court to reverse the Board and grant him no more than 52 weeks of compensation benefits or no less than benefits from September 21, 1993 through March 25, 1994, or to remand this case with instructions to ...


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