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Frog, Switch & Mfg. Co. v. Workers' Comp. Appeal Bd. (Johnson)

Commonwealth Court of Pennsylvania

December 4, 2014

Frog, Switch & Manufacturing Company, Petitioner
v.
Workers' Compensation Appeal Board (Johnson), Respondent

 Argued October 8, 2014

Page 203

Appealed from No. A11-1403. State Agency Workers' Compensation Appeal Board.

Stephen M. Greecher, Jr., Lemoyne, for petitioner.

Daniel W. Stern, Harrisburg, for respondent.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge. OPINION BY JUDGE COVEY. DISSENTING OPINION BY JUDGE McGINLEY. Judge Leavitt did not participate in the decision in this case. Judge McCullough joins in this Dissent.

OPINION

Page 204

COVEY, JUDGE

Frog, Switch & Manufacturing Company (Employer) petitions this Court for review of the Workers' Compensation (WC) Appeal Board's (Board) January 2, 2014 order affirming the Workers' Compensation Judge's (WCJ) decision granting Lindora Johnson's (Claimant) Claim Petition. Employer presents two issues for this Court's review: (1) whether the WCJ's findings of fact are supported by substantial evidence, and (2) whether the WCJ applied the proper standard to Claimant's work injury in determining whether Claimant met her burden of proof.

Claimant began working as a " rover" for Employer, a fabricator of steel products, on October 30, 1989. Claimant's job required her to operate overhead cranes in areas where metal is molded. Claimant is one of two females and the only African-American female in a workforce of approximately 200 employees. Claimant testified at the WCJ hearing regarding three separate workplace incidents that occurred in May 2009, which she reported in a complaint she filed with the Pennsylvania Human Relations Commission (PHRC). The first occurrence concerned a new employee, not knowing Claimant's identity, who told Claimant: " I was told don't work underneath that Penny [Claimant]." Reproduced Record (R.R.) at 60a. The co-worker she was with said that " he's going by, you know, other people who are always saying this about you and this and that[.]" [1] Id. The second episode involved employee Ken Hurley who told Claimant: " I don't think women should be working here[,]" in front of Employer's CEO Warren Beiger (Beiger) and its safety director Dan Gibbs. R.R. at 61a. Lastly, Claimant

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explained that she was taken off an assignment to work a 30 ton crane because another employee, Jeff Feuchenberger (Feuchenberger), refused to work under her. Claimant also stated that she was denied overtime, but Claimant's union officials justified the matter under the collective bargaining agreement's seniority and job description rules.

Claimant also testified regarding another allegation in her PHRC complaint that occurred in the workplace on or about August 30, 2009. Claimant reported that during a discussion with supervisor Mike Zimmerman (Zimmerman) about what they were going to do on their days off, Zimmerman said: " I could tell you right now, my wife is not gonna treat me like a--the N word." R.R. at 68a. Claimant asked Zimmerman if he knew what he said, and he repeated it. After further discussion, Zimmerman told Claimant " I'll talk to you later[,]" and walked away. Id. Claimant turned to the union unit chair Walter Hockley (Hockley) who was standing in their presence, and said " I can't believe he said that. Does he know what that means on me?" Id. Hockley responded " you've got to stop worrying about everybody else. You got to worry about yourself." Id. As a result of this occurrence, a meeting was held in September 2009 with foundry superintendent Steve Vick (Vick), Claimant and Zimmerman. At that meeting, Vick read what he represented to be the dictionary " definition of the 'N' word." R.R. at 69a. Zimmerman apologized to Claimant.

Claimant further testified regarding another allegation in her PHRC complaint which took place in mid-September. Claimant reported that upon exiting the women's locker room she noticed a noose hanging in an office Zimmerman shared with foreman Mike Smith (Smith). Claimant complained to Smith and requested that it be taken down. Claimant was in a position to observe the noose because the office door was wide open. Employer's witness admitted that the noose was seen by more than 100 people in the plant, and that it was up and visible for 2 to 3 days before it was taken down.

Zimmerman testified that on the night of this occurrence he had a terrible night and went back to his office and told Smith that if one more thing goes wrong he was going to hang himself. Thereafter, he received a call regarding another issue he had to address. When he returned, Smith had the noose hanging and waiting for him. Zimmerman testified that " it was just a joke between [Smith] and [Zimmerman] because that's the way [they] carried on back and forth. It was something to break the tension of the foundry life between [Smith] and [Zimmerman]." R.R. at 378a-379a.

On September 23, 2009, a meeting was held to discuss Feuchenberger's refusal to work with Claimant. Feuchenberger reported that Claimant's actions were unsafe and she refused to listen to signals. Claimant left the meeting crying stating that nothing had changed, people were out to get her and she was going to file a grievance. See R.R. at 256a. On September 30, 2009, Claimant filed an accident report in response to which Employer referred Claimant to its doctor for emotional distress. September 30, 2009 was Claimant's last day of work until she returned to work on April 19, 2010.

On May 10, 2010, Claimant filed a Claim Petition in which she alleged that she sustained a work injury in the nature of atypical depression related to abnormal working conditions, and asserted September 29, 2009 as the date of injury. Claimant sought temporary total disability benefits for the time period beginning September 30, 2009 and ending April 19, 2010, together

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with payment of medical bills and attorney's fees.

Hearings were held on August 13, 2010, December 9, 2010 and January 28, 2011. On August 4, 2011, the WCJ granted Claimant's Claim Petition. Employer appealed to the Board. On January 2, 2014, the Board affirmed the WCJ's decision. Employer appealed to this Court.[2]

Employer first argues that the WCJ's Findings of Fact 14, 38, 39 and 40 are not supported by substantial evidence.[3]

'Substantial evidence is such relevant evidence a reasonable person might find sufficient to support the WCJ's findings.' Rosenberg v. Workers' [Comp.] Appeal [Bd.] (Pike County), 942 A.2d 245, 249 n. 4 (Pa. Cmwlth. 2008). In determining whether a finding of fact is supported by substantial evidence, this Court must consider the evidence as a whole, view the evidence in a light most favorable to the party who prevailed before the ...

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