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Payes v. Workers' Compensation Appeal Board

October 6, 2010

PHILIP PAYES, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (COMMONWEALTH OF PA/ STATE POLICE), RESPONDENT



The opinion of the court was delivered by: Senior Judge Flaherty

Submitted: August 6, 2010

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

Philip Payes (Claimant) petitions for review from an order of the Workers' Compensation Appeal Board (Board) that reversed the decision of a Workers' Compensation Judge (WCJ) granting his Claim Petition. We affirm.

This case results from a tragedy that occurred on November 29, 2006. That morning, while it was still dark, Claimant, a state trooper, was driving his patrol vehicle to the station. While on the highway, a woman who apparently was mentally disturbed ran in front of Claimant's vehicle. Claimant attempted to resuscitate the woman after she was struck by his patrol car but the incident resulted in a fatality. Claimant filed a Claim Petition seeking total disability from December 1, 2006 and ongoing based on post traumatic stress disorder (PTSD). Employer accepted liability for reasonable and necessary medical expenses related to Claimant's blood exposure. Employer denied liability for any psychological injury or resultant earnings loss.

Claimant testified that he has worked for Employer since 1994. On November 28, 2006, he was to begin working a double back shift. That meant that he was to work from 2:00 p.m. through 10:00 p.m. that day. He was to get an eight hour break, and return to the station in the morning. Claimant was to take the patrol vehicle home at the conclusion of the first leg of the shift and return with the vehicle in the morning to begin the second leg of his shift. Claimant described the events of November 29, 2006 when he was returning to the station. He was traveling on Interstate 81 at approximately 5:45 a.m. when a woman, dressed entirely in black, ran in front of his patrol car. His vehicle struck the woman and she flipped over the car. Claimant stopped his vehicle, turned on the flashing lights, and radioed for an ambulance. He observed blood coming out of the accident victim's mouth as she lay in the road. Claimant checked the victim for a pulse. He attempted mouth-to-mouth resuscitation. He had to stand over her body and wave traffic out of the way so the two would not get hit. Eventually help arrived and both Claimant and the accident victim were taken to the hospital. The woman died as a result of her injuries.

Claimant missed time from work. He attempted to return to work on January 2, 2007. He worked for a few days, primarily doing paperwork, but felt he was in no way ready to resume working. Claimant specifically referenced anxiety, particularly when driving. He conceded that as a part of being a state trooper, he has been exposed to violent crimes, accidents, and trauma in the past. He agreed that exposure to these types of things comes with the job. Claimant asserted, however, that he "never once imagined that something like this could happen." R.R. at 44a. He further explained "I never thought I'd be. possibly [the] method of someone's suicide." Id.

Claimant presented the testimony of Harvey Shapiro, M.D., board certified psychiatrist, who first examined him on April 9, 2007. He diagnosed Claimant with major depression of moderate degree and severe PTSD. Per Dr. Shapiro, PTSD is a serious anxiety disorder. He attributed his diagnoses to the incident occurring November 29, 2006. Dr. Shapiro did not believe Claimant was capable of returning to work as a state trooper. Claimant further presented the testimony of Jeffrey Pincus, licensed psychologist, who concurred with Dr. Shapiro by diagnosing Claimant with work-related PTSD, severe anxiety, and depression. Dr. Pincus also agreed Claimant was not capable of returning to work with Employer.

Employer presented the testimony of Major McDaniel, Commander of Area 1. He stated that all police cadets receive training on stress management and information on PTSD. He added that state troopers regularly and routinely respond to motor vehicle accidents. Officers are trained in first aid so they can render assistance at a crash site.

Major McDaniel reviewed the details of the investigation into the November 29, 2006 incident and disagreed with the assessment that the victim attempted to commit "suicide by cop." R.R. 214a. He stated, however, that people do attempt to use officers as a means to facilitate their own suicide. He discussed an incident in 1994 whereupon a man pointed a toy gun at him and his partner knowing that they were armed with real weapons. Major McDaniel fatally shot the individual. Major McDaniel further explained that another officer had been involved in an incident previously where an individual sprinted out in front of his patrol car resulting in a fatality. Major McDaniel stated he gave Claimant that officer's contact information to talk if he desired.

Employer next presented the testimony of Barbara Kuhlengel, M.D., board certified in psychiatry, who examined Claimant on November 1, 2007. She went over medical record and took a history from Claimant. According to Dr. Kuhlengel, Claimant told her "[h]e knew about 'suicide by cop' from the police academy with regard to dealing with incidents and unstable people."*fn1 R.R. at 319a. Dr. Kuhlengel believed Claimant did develop PTSD. She opined, however, that Claimant recovered from the symptoms specific to PTSD by the time of her examination. She added that Claimant may have exacerbated a pre-existing adjustment disorder as a result of the November 29, 2006 incident, but has since returned to baseline levels. Dr. Kuhlengel explained that Claimant had documented symptoms of depression prior to the accident, but she did not believe Claimant experienced any additional depression following the incident.

By a decision circulated October 24, 2008, the WCJ credited Claimant's testimony as well as that of Major McDaniel. He found the testimony of Drs. Shapiro and Pincus more credible than that of Dr. Kuhlengel. He awarded total disability benefits from November 29, 2006 and ongoing, but for a brief period of suspension when Claimant attempted to return to work in January of 2007. The WCJ found Claimant developed a compensable mental injury resulting from a mental stimulus. He found the mental injury was sustained as a result of an abnormal working condition. To that point, the WCJ found as follows:

5.. [W]hile state troopers such as the Claimant [are] exposed to death, murder, severe personal injury, crimes, and other violent activities, the circumstances of the present case which occurred directly to the Claimant when the victim darted in front of his vehicle, and the events which occurred immediately when he attempted to save her life, were not normal for a state trooper but instead were extraordinary and unusual events.

Dec. dated 10/24/08, p. 8.

The WCJ concluded that the evidence supported a finding that the accident victim attempted to commit suicide. He found it inconclusive that she ...


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