Argued October 8, 2014
Appealed from No. A11-1816. Workers' Compensation Appeal Board.
ATTORNEYS: John F.X. Fenerty, Jr., Huntingdon Valley, for petitioner.
ATTORNEYS: Linda Bobrin, Bensalem, 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. CONCURRING OPINION BY JUDGE LEADBETTER. CONCURRING OPINION BY JUDGE McCULLOUGH.
COHN JUBELIRER, JUDGE
Pamela Murphy (Claimant) petitions for review of the Order of the Workers' Compensation Appeal Board (Board) affirming the Decision of a Workers' Compensation Judge (WCJ) that denied her claim and penalty petitions. On appeal, Claimant argues she is entitled to workers' compensation (WC) benefits under the Workers' Compensation Act (Act) because she met her burden of proving that the mental injury she sustained during an armed robbery at one of Ace Check Cashing Inc.'s (Employer) stores is a compensable, work-related injury, and the Board erred in concluding otherwise.
Claimant began working for Employer in February 1998, and was most recently employed as Employer's general manager. (WCJ Decision, Findings of Fact (FOF) ¶ 4.) In this position, Claimant was responsible for hiring, firing, and scheduling employees; handling alarm calls; and managing the money for Employer's eight stores. (FOF ¶ 4.) In July 2010, Claimant filed a claim petition alleging she sustained work-related " injuries to her neck, shoulders,
thoracic spine, wrists, and ankles," as well as " post[-]traumatic stress disorder [(PTSD)], anxiety[,] and depression when she was physically and psychologically assaulted during an armed robbery" of Employer's main office on June 19, 2010. (WCJ Decision at 1; FOF ¶ 1.) Claimant also filed a penalty petition averring Employer violated the Act by issuing a notice of compensation denial denying Claimant WC benefits without any basis in fact or law. (FOF ¶ 3.) Employer filed timely answers denying Claimant's allegations. (FOF ¶ 2.) The petitions were assigned to a WCJ, who held hearings.
Claimant testified before the WCJ and described the June 19, 2010 armed robbery. On that day, Claimant and her husband (Husband) arrived at Employer's main office and check cashing store at around 8:10 a.m. Claimant parked next to the dumpster, which was her normal parking spot. When Husband opened the passenger-side door, a man (Gunman) was there with a gun pointed at Husband's face. Gunman " had jumped out of the dumpster" and told them " this doesn't have to be a murder but it will be if they don't do what he tells them." (FOF ¶ 4.) Gunman directed Husband to turn around, handcuffed Husband with his hands behind his back, pushed Husband into the backseat of the car, and tied Husband's legs together. Claimant screamed at Gunman not to hurt Husband. Taking Claimant's keys from where they had fallen in the car, Gunman told Claimant he wanted the alarms to Employer's office. While pointing the gun at Claimant, Gunman and Claimant walked to the office's door, Claimant opened the door, and turned off the alarm with her code. After telling Claimant there was a second man waiting in the dumpster who would kill Husband, Gunman told Claimant to take him to Employer's vault. Gunman forced Claimant to go room to room and safe to safe, unlocking doors and turning off various alarms throughout the office as they went. Claimant could not activate her panic button and was not within reach of a silent alarm. Gunman then took Claimant upstairs, where he " threw Claimant on the ground[,] told her to roll over," and hog-tied her. (FOF ¶ 4.) Throughout the robbery, Gunman held her very tightly with the gun to her back and would squeeze her tightly as they moved through the office to ensure Claimant would not get away.
Several minutes after Gunman left, Claimant managed to free a hand and reach her cell phone in her pocket. She called 911 and screamed that she had been robbed and did not know if Husband had been killed. The operator told Claimant the police were at the front of the store and for her to let the police in; Claimant advised the operator she was tied up and could not get out. Claimant then began crawling and ultimately stood up, all while on the phone with the operator. With the rope still around her, Claimant tried to run but was stopped by police officers with guns pointed at her. Although Claimant tried to run to Husband, the police would not let her; Claimant became hysterical, believing Husband was dead. Finally, Husband got out of the car, and the police let Claimant and Husband reunite. Claimant then called Jaci Peluso, Employer's president, and informed her of the robbery. Claimant began experiencing chest pains, could not breathe or speak, and was taken to the hospital by ambulance for treatment. Claimant submitted into evidence the surveillance video taken during
the robbery and photographs of her wrists and ankles that were taken by her daughter at the hospital. (FOF ¶ ¶ 4, 8.)
Claimant sought treatment from her family physician, Geoffrey Temple, D.O., on June 21, 2010, complaining of pain in her upper back, shoulders, and neck. During her testimony, Claimant stated that most of her physical injuries had been resolved, but she continued to have pain in her back and side for which she received physical therapy. Claimant believed her back injuries were caused by being hog-tied, which aggravated her pre-existing low back arthritis. Claimant testified that she is unable to return to work because of back pain. At Dr. Temple's recommendation, Claimant began seeing Sherri Landes, Ph.D., and had scheduled an appointment with a psychiatrist in order to obtain medication. Claimant stated that, almost two months after the assault, she still has nightmares, experiences panic attacks three or four times per week, has difficulty concentrating, cries for no reason every day, and sometimes does not get dressed or bathe. Claimant testified she is too afraid to return to Employer's office and worries that Gunman will find her in her home. (FOF ¶ 4; Hr'g Tr., August 12, 2010, at 38, 40, R.R. at 44a, 46a.)
Husband confirmed Claimant's description of what occurred in Employer's parking lot during the June 19, 2010 armed robbery. (FOF ¶ 5.) He described the changes in Claimant's mental state, indicating that she breaks down all the time, has panic attacks, and characterized her as " completely wrecked." (FOF ¶ 5; Hr'g Tr. at 65-66, R.R. at 71a-72a.)
Claimant presented the deposition testimony of Dr. Temple. Based on his examinations of Claimant before and after the June 19, 2010 armed robbery, an EMG dated November 2010, and a comparison of MRIs dated December 2007 and August 2010, Dr. Temple diagnosed Claimant with " a L5-S1 annular tear, L5-S1 bilateral radiculopathy," an " aggravation of pre-existing lumbar degenerative disease," reactive lumbar myositis, reactive thoracic myositis, and PTSD. (FOF ¶ 7; Temple Dep. at 26, 29, R.R. at 214a, 217a.) Dr. Temple opined that all of these conditions were caused by the June 19, 2010 armed robbery. (FOF ¶ 7.)
Claimant also produced the deposition of Dr. Landes, Claimant's psychologist. Dr. Landes testified she first saw Claimant on June 23, 2010, four days after the armed robbery. (FOF ¶ 6.) Dr. Landes described Claimant as " shaking and very distressed" when she described the events of June 19, 2010. (Landes Dep. at 10, R.R. at 138a.) She noted that Claimant's son-in-law, who had worked as a courier for Employer, was murdered six years earlier during a robbery at work and that the murderer had recently been convicted. (FOF ¶ 6; Landes Dep. at 12, R.R. at 140a.) According to Dr. Landes, Claimant had difficulty eating, lost weight, felt helpless and out of control, was extremely anxious, and was suffering from severe panic attacks and disrupted sleep patterns. (FOF ¶ 6.) Dr. Landes diagnosed Claimant with PTSD as a direct result of the June 19, 2010 armed robbery of Employer's office, for which she sees Claimant on a weekly basis. (FOF ¶ 6.) Dr. Landes opined that Claimant was not able to return to work and that, while Claimant had improved, she was still afraid to go out and her symptoms were still very severe. (FOF ¶ 6; Landes Dep. at 31, 35, R.R. at 159a, 163a.)
Employer submitted the deposition testimony of Leonard A. Brody, M.D., who examined Claimant on September 15, 2010 and reviewed the 2010 EMG and the 2007 and 2010 MRIs. (FOF ¶ 12.) Dr. Brody testified that Claimant's examination was normal and the test results were consistent
with an expected progression of advanced degenerative disc disease. (FOF ¶ 12.) Explaining that he had not seen Claimant until September, Dr. Brody would not opine that Claimant suffered no physical injury in the June 19, 2010 armed robbery, but he indicated he would not attribute Claimant's ongoing physical complaints to that event. (Brody Dep. at 40, R.R. at 445a.)
Although Employer contested Claimant's physical injuries, Employer did not present evidence disputing that Claimant had suffered a psychological injury as a result of the June 19, 2010 armed robbery. Instead, Employer offered testimony from various witnesses relating to Employer's security measures and procedures, Claimant's training in that regard, and Employer's suspicions that Claimant committed the robbery that caused her injuries. (Hr'g Tr., January 6, 2011, at 6-147.)
Ms. Peluso, testified, inter alia, that: Employer provided security training for its employees, including Claimant; in the event of a robbery or hold up, employees were provided a personal panic button and ambush code; and there was a decoy safe in each of Employer's locations to be used in the event of a robbery, of which Claimant knew. (FOF ¶ 10.) Ms. Peluso stated she was aware of three or four robberies that had occurred over the past seventeen years in which employees were suspected of being involved. (FOF ¶ 10.) Ms. Peluso ...