Argued April 11, 2012
Appeal from the Order and of Commonwealth Court entered October 6, 2010 at No. 461 CD 2010, affirming the decision of the Workers' Compensation Appeal Board dated February 22, 2010, at No. A08-2136. Appeal allowed May 17, 2011 at 804 MAL 2010. Intermediate Court Judges: Bernard L. McGinley, Robert E. Simpson, JJ, Jim Flaherty, Senior Judge. 5 A.3d 855 (Pa.Cmwlth. 2010).
For Philip Payes, APPELLANT: Quintes D. Taglioli, Esq., Markowitz & Richman.
For Workers Compensation Appeal Board, APPELLEE: Amber Marie Kenger, Esq., Richard C. Lengler, Esq., Workers Compensation Appeal Board.
For State Police, APPELLEE: James A. Mazzotta, Esq., Fried, Kane, Walters, Zuschlag & Grochmal.
BEFORE: MR. JUSTICE McCAFFERY. CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. Former Justice Orie Melvin did not participate in the decision of this case. Messrs. Justice Saylor and Baer and Madame Justice Todd join the opinion. Mr. Chief Justice Castille files a concurring and dissenting opinion. Mr. Justice Eakin files a dissenting opinion.
[621 Pa. 568] MR. McCAFFERY,
Allowance of appeal was granted so that this Court could determine whether the Commonwealth Court erred by affirming the reversal by the Workers' Compensation Appeal Board (" WCAB" ) of the decision of a workers' compensation judge (" WCJ" ) that granted the claim petition of Appellant, Philip Payes. The WCJ had determined that Appellant was entitled to workers' compensation disability benefits based on factual findings that Appellant established the existence of a mental disability that had been caused by abnormal working conditions. We now conclude that it was error to reverse the WCJ's decision, and we accordingly reverse the order of the Commonwealth Court.
The factual background is largely undisputed. Appellant was a trooper with the Pennsylvania State Police (" State Police" ) and had worked for the State Police for approximately twelve years prior to the incident in question, which occurred on November 29, 2006. At approximately 5:45 a.m. on that date, while it was dark, Appellant was driving his patrol car on Interstate 81 en route to his barracks. A woman dressed all [621 Pa. 569] in black, including a black hat or cap, suddenly ran in front of, and was struck by, Appellant's patrol car. The woman flipped over the vehicle and landed on the highway. Appellant immediately pulled his car around into the traffic lane and rushed to attend to the woman. Appellant began giving her mouth-to-mouth resuscitation as she bled from the mouth. At the same time as he was attempting to revive the injured woman, Appellant had to divert oncoming traffic from hitting him and the woman. The incident was caught on film by a camera mounted in Appellant's patrol car, and, in accordance with State Police procedure, a DVD
was made of the incident, which DVD was later admitted into evidence by the WCJ.
Following Appellant's request for assistance, other troopers arrived at the incident site. The woman could not be revived and was pronounced dead at the scene. It was later discovered that she suffered from mental illness and had been seen by several drivers walking up and down the area adjacent to Interstate 81 prior to the incident. Appellant was transported from the scene to a hospital for testing and treatment connected to his exposure to the deceased woman's blood.
Appellant was permitted to be off work until January 2, 2007. On that date, he returned to work but performed office work rather than his normal patrol duties. After working four days, however, Appellant's recurring feelings of anxiousness and stress led him to believe that he could not continue to perform his duties as a state trooper. Appellant has not returned to work since January 5, 2007.
Appellant sought workers' compensation benefits, but the State Police filed two notices of Workers' Compensation Denial (" NCD" ), the first on December 8, 2006, and the second, as amended, on February 6, 2007. The first NCD asserted that although an injury had occurred, Appellant was not disabled as a result of it. However, it did provide that expenses for medical treatment reasonably related to Appellant's exposure to the deceased's woman's blood would be paid. The second NCD asserted that Appellant had not been injured while in [621 Pa. 570] the scope of his employment and specifically rejected any claim for post-traumatic stress. However, and somewhat contradictorily, this NCD also continued to accept responsibility for medical treatment related to Appellant's exposure to blood.
On August 6, 2007, Appellant filed a claim petition alleging that he suffered from post-traumatic stress disorder (" PTSD" ) as a result of the November 29, 2006, incident, and he sought full disability benefits, medical expenses, and counsel fees. The State Police filed an answer denying Appellant's material allegations, and a hearing was scheduled before a WCJ.
At the hearing, Appellant testified and presented the supporting medical expert testimony of a psychiatrist and a psychologist, both of whom diagnosed Appellant as being temporarily totally disabled because of PTSD, which disorder had arisen directly from the November 29, 2006, incident. The State Police presented the testimony of Major Steven McDaniel, the Commander of Area 1, who testified about police cadet training regarding stress management, standards for State Police response to automobile accidents, and State Police practice of rendering first aid at a crash site. Major McDaniel also testified regarding an incident of which he was aware where another State Trooper had struck and killed an individual who had dashed in front of his patrol vehicle. Major McDaniel testified that he had given the name of this State Trooper to Appellant in case Appellant desired to contact him. The State Police also presented the testimony of their own psychiatric expert, who opined that Appellant had fully recovered from any PTSD related to the incident, and presently suffered only from mental conditions that pre-existed the November 29, 2006, incident. Two other troopers testified regarding Appellant's job duties and his failed attempt to return to his work duties after the incident.
The WCJ found Appellant's and Major McDaniel's respective testimonies to be credible and further found the testimony of Appellant's psychiatric expert witnesses to be more credible than that of the psychiatric expert witness presented by the
State Police. Based on these credibility findings, the WCJ [621 Pa. 571] determined that Appellant had proven a mental injury arising from a work-related mental stimulus. The WCJ further found that, although state troopers may expect to encounter or be involved with violent situations, the particular work-related mental stimulus here was not one normally encountered by or expected of state troopers, as illustrated by the following relevant findings of fact:
12. State Troopers such as [Appellant] are exposed to vehicle accidents, mayhem, bodily injuries, death, murder, and violent acts in the normal course of their duties.
13. State Troopers are not in the normal course of their duties exposed to the circumstances that occurred in this case; to wit[,] a mentally disturbed individual running in front of a Trooper's vehicle while he is operating the vehicle, for no apparent reason. Further, what occurred at the point of impact and immediately thereafter are not working conditions which normally occur for State Troopers[: Appellant's] attempted but failed resuscitation of the woman he killed on Interstate 81 while vehicular traffic [was] oncoming, waiting for assistance from other troopers.
WCJ Decision, dated 10/24/08, at 3-4, Findings of Fact Nos. 12-13 (emphasis added).
Based on his relevant factual findings, the WCJ determined that Appellant's mental injury was caused by an abnormal working condition, making the mental injury and resultant disability compensable under the Act. The WCJ reasoned:
[W]hile state troopers such as [Appellant] are exposed to death, murder, severe personal injury, crimes, and other violent activities, the circumstances of the present case which occurred directly to [Appellant] 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.
WCJ Decision at 8, Conclusion of Law No. 5.
Following appeal by the State Police, the WCAB reversed the WCJ's grant of Appellant's claim petition, stating: " [621 Pa. 572] [W]hile being involved in a fatal accident may be traumatic and not routine for a state trooper, we cannot agree that this incident constitutes an abnormal working condition given the nature of [Appellant's] stressful and perilous profession." WCAB Decision, dated 2/22/10, at 11. The WCAB further stated:
[Appellant] agreed that being exposed to traumatic and dangerous situations and to death and trauma was a normal part of his job as a state trooper. Although he testified that he never thought he would be involved in someone's death, he did admit he was trained at the academy in the use of deadly force[,] among other things. While he stated he never heard of this kind of event happening to anyone else on the job, Major McDaniel credibly testified that a member of the department had a similar situation years ago where someone ran in front of a patrol car and was struck and killed, and he provided [Appellant] with that person's contact information. Thus, encounters involving fatalities were a foreseeable part of the job and not an unheard of occurrence.
Id. at 12-13.
In a published opinion, the Commonwealth Court affirmed the WCAB's decision, holding as a matter of law that Appellant's
injury did not result from an abnormal working condition. Payes v. Workers' Compensation Appeal Board (Commonwealth of PA/State Police), 5 A.3d 855 (Pa.Cmwlth. 2010). Specifically, the court held:
[Appellant], who works " in the line of employment" of a police officer, can be expected to be witness to horrible tragedy. This includes, as acknowledged by [Appellant], responding to motor vehicle accidents in an emergency capacity. Undoubtedly, in so doing, he may be subjected to traumatic visuals such as injured children, maimed adults, and, unfortunately, death. These events will not be deemed " extraordinary" or " abnormal." Indeed, it is not beyond the realm of possibility for an officer to have to take someone's life.
[621 Pa. 573] The instant fact pattern began with the ordinary task of [Appellant] driving to the station to begin the second leg of his double-back shift. [Appellant] did strike a woman with his vehicle, but responded to the emergency situation just as he would have responded to any other accident scene. [Appellant's] attempt at mouth-to-mouth [sic] on a woman who was bleeding from that area may be an unusual event for the average citizen, but it does not appear extraordinary for a police officer. Regrettably, a person dying following a failed attempt at resuscitation is something that can be expected to occur in a police officer's line of work. But for the part that [Appellant] was the one who struck the woman with his vehicle, there would be no question that any resulting psychological injury would not be compensable. This fact, however, does not take [Appellant's] mental injuries that would ordinarily be noncompensable and render an award of benefits appropriate.
... The events that occurred on November 29, 2006 may have been unusual, but they were not so much more stressful and abnormal than the already highly stressful nature of [Appellant's] employment to render an award of benefits appropriate. ... Any mental injury results [sic] from an event that was subjectively abnormal for [Appellant].
... Even if Major McDaniel knew of the only other incident where an officer struck another individual with his patrol car, the facts as a whole show the relative " ordinary" nature of the events that transpired in this case. Police officers are involved in a highly stressful profession and are required to, and do, respond to emergency situations as part of their duties. Traumatic events are not out of the ordinary for a police officer and, at times, attempts at saving a life fail.
Id. at 861-62 (emphases added; citations omitted).
On appeal from the Commonwealth Court's decision, Appellant argues that the Commonwealth Court erred by ignoring the WCJ's factual findings regarding the singular nature of the event that had triggered the onset of his disabling PTSD. [621 Pa. 574] Appellant points out that all tribunals below determined that this event was " unusual," but the Commonwealth Court and the WCAB nonetheless determined that this " unusual" event was actually " not abnormal." Appellant also criticizes the Commonwealth Court and the WCAB for likening the event that caused his disability to disconnected hypotheticals that are considered normal police matters, such as violent confrontations with suspects that result in the suspect's death, or investigations of and ...