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PA Liquor Control Bd. v. Workers' Compensation Appeal Board (Kochanowicz)

Commonwealth Court of Pennsylvania

December 30, 2014

PA Liquor Control Board, Petitioner
v.
Workers' Compensation Appeal Board (Kochanowicz), Respondent

Argued, October 8, 2014

Appealed from No. A09-1266. Workers' Compensation Appeal Board.

Robert J. Baker, Harrisburg, for petitioner.

Alfred J. Carlson, III, Philadelphia, for respondent Gregory Kochanowicz.

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. Judge Simpson and Judge Leavitt did not participate in this decision.

OPINION

Page 923

COHN JUBELIRER, JUDGE

In this remanded matter, the PA Liquor Control Board (Employer) petitions for review of the Order of the Workers' Compensation Appeal Board (Board) that affirmed the Workers' Compensation Judge's (WCJ) Decision granting the claim petition (Petition) filed by Gregory Kochanowicz (Claimant). The WCJ awarded Claimant workers' compensation (WC) benefits for a work-related mental injury[1] pursuant to the Pennsylvania Workers' Compensation Act (Act).[2] Because we conclude that the WCJ's findings of fact are supported by substantial evidence and these findings support the WCJ's conclusion that the armed robbery that caused Claimant's mental injury was not a normal working condition, we affirm.

I. Background and Procedural History

The facts in this matter are not in dispute. Claimant worked for Employer for over thirty years and, on April 28, 2008, was the general manager of Employer's retail liquor store in Morrisville, Pennsylvania, when an armed robbery occurred. (WCJ Decision, Findings of Fact (FOF) ¶ ¶ 1, 10.) As found by the WCJ:

Page 924

2. On April 28, 2008 Claimant was working the evening shift that required that he prepare the store for closing at about 9:15 p.m. At about 8:57 [p.m.] Claimant was in his office preparing and counting the money when a female employee called him from the floor and he saw a masked man approaching him with a drawn gun. Once inside the office, the gunman showed Claimant a second gun, and asked Claimant where the store's money was kept. Claimant was instructed, with the gun to his head, to remove the money from the safe and place it in a backpack. Claimant was ordered to open a lock box as well. The man instructed the female employee to open her register and not hit the alarm. After taking the money from the register, the man ordered the female employee to check to ensure no one was outside the front of the store. During all of the foregoing, the robber held the gun to the back of Claimant's head. At the direction of the gunman, Claimant opened the back emergency exit door, and the gunman checked for bystanders. Claimant was tied up to a chair, along with the coworker, with duct tape. When Claimant showed anxiety, the gunman prodded Claimant with the gun to his head, and asked Claimant whether or not he was impatient. After the gunman left, Claimant extricated himself from the duct tape and called the police and [Employer's] head auditor. He left a message with his direct supervisor. He told Charles Keller in HR that he needed to take some time off due to the robbery. Claimant had never been robbed at work during his entire 30 years of employment. [Employer] referred Claimant to a panel social worker. He saw his own personal physician the following day, and has been treating with a psychologist, Dr. Raditz, to whom he was referred by his attorney. Claimant has had no previous psychological treatment.

(FOF ¶ 2.)

Claimant explained that, after the gunman tied him and his coworker to a chair, they were told they had to wait twenty minutes before calling anyone or going out the back door because the gunman might come back inside. (Hr'g Tr. at 10, R.R. at 35a.) Claimant indicated that he waited approximately five minutes before he freed himself and called the police. (Hr'g Tr. at 10, R.R. at 35a.) Claimant testified that, in his over thirty years working for Employer, a normal day never involved a masked gunman entering his store, sticking a gun to the back of his head, and tying him up with duct tape. (Hr'g Tr. at 45, R.R. at 70a.) Claimant stated that he thought about the robbery every day and that these thoughts disrupted his sleep, caused nightmares, anxiety, stress, and difficulty relating to his family. (Hr'g Tr. at 13-14, R.R. 38a-39a.) Claimant testified that he did not believe he had improved to the point that he could return to his previous position because he continued to fear for his life and feared that something like the robbery would happen again. (Hr'g Tr. at 15-16, R.R. at 40a-41a.)

Claimant presented the deposition testimony of his treating psychologist, Brian S. Raditz, Ed.D. Based on his May 6, 2008 examination and continued treatment of Claimant, Dr. Raditz opined that Claimant suffered from Post-Traumatic Stress Disorder (PTSD) and adjustment disorder with mixed anxiety and depressed mood as a result of the April 28, 2008 armed robbery and could not return to his pre-injury position. (FOF ¶ ¶ 3-4.) Employer offered the deposition testimony of Timothy Michals, M.D., a specialist in clinical and forensic psychiatry. (FOF ¶ 5.) Based on his August 20, 2008 examination of Claimant and a review of medical records and

Page 925

various test results, Dr. Michals opined within a reasonable degree of psychiatric certainty that Claimant experienced PTSD as a direct result of the April 28, 2008 armed robbery, continued to have anxiety, and continued to need both talk and pharmaceutical therapy.[3] (FOF ¶ ¶ 6-7.)

Employer also presented the deposition testimony of Charles Keller, the coordinator of Employer's confidential State Employee Assistance Program (SEAP), which provides counseling to Employer's employees. (FOF ΒΆ 9.) ...


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