PA Liquor Control Board v. Workers' Compensation Appeal Board

OPINION BY Judge PELLEGRINI. The Pennsylvania Liquor Control Board (Employer) petitions for review of an order of the Workers’ Compensation Appeal Board (Board) affirming the decision of the Workers’ Compensation Judge (WCJ) granting the Claim Petition of Gregory Kochanowicz (Claimant) for a work-related psychic injury. Because Claimant’s psychic injury1 was the result of normal working conditions, we reverse. The facts of this case are not in dispute. Claimant worked for Employer for over 30 years and was last employed as the general manager of Employer’s retail liquor store located in Morrisville, Pennsylvania. Claimant was working the evening shift on April 28, 2008, when the store was robbed by a masked man brandishing two guns. During the robbery, the perpetrator pointed both guns at Claimant and prodded the back of Claimant’s head with a gun. The perpetrator stole money from the office and a cash register, tied Claimant and his co-worker to chairs with duct tape and then fled the store. Neither Claimant nor his co-worker was physically injured during the robbery. However, after the incident Claimant suffered anxiety, depression, and flashbacks, and could not return to work. He began seeing a clinical psychologist who diagnosed him with post-traumatic stress disorder (PTSD). Claimant then filed a Claim Petition seeking total disability benefits effective April 29, 2008, alleging that he sustained PTSD as a result of being robbed at gun point while in the course and scope of his employment. Employer filed an Answer and a Notice of Compensation Denial indicating that Claimant had not sustained a compensable work-related injury.2 — 107 — Before the WCJ, Claimant testified that he had worked as a manager for Employer for 20 years and that as of April 2008, he had been the manager of the Morris-ville retail store for two years. On April 28, 2008, he was working the night shift with one other part-time female employee. At approximately 8:57 p.m., Claimant was in his office preparing to close the store for the evening when his coworker called his name. Claimant stood up and saw a masked man approaching him with a gun drawn. Claimant immediately told the perpetrator “to take whatever he needed to and just not to hurt anybody.” (Reproduced Record (R.R.) at 33a.) The perpetrator told the female employee to lock the front door and make sure no one was outside. According to Claimant, the perpetrator then entered the office, reached inside his pocket, and drew a second gun. The perpetrator then threw a backpack on the floor, instructed Claimant to open the safe and put all of the money in the backpack. The perpetrator then instructed Claimant to open a lock box, which was empty. Claimant testified that throughout these events the perpetrator had a gun directed to the back of Claimant’s head. The perpetrator then instructed the female employee to open her register with the open key used for emergencies, bring the money into the office, put it into the backpack, and that she should not hit any alarms. The perpetrator then had Claimant and his co-worker sit in chairs and he tied them up with duct tape. Claimant testified that the perpetrator had a gun to the back of his head and that Claimant sighed or expressed some sort of anxiety. The perpetrator then prodded him with the weapon and asked if he was impatient or annoyed. Again, Claimant told him to take what he needed and not to hurt anyone. Finally, the perpetrator told Claimant and his coworker that he was going to leave and that they must wait 20 minutes before calling anyone or going out the back door because he might come back inside. Claimant testified that he waited approximately five minutes before he freed himself from the duct tape and called the police. Claimant also reported the incident to Employer’s main auditor and his district manager. Claimant testified that Employer referred him to the State Employee Assistance Program (SEAP), which put him in contact with a social worker. Claimant had three visits with this social worker. Employer did not refer Claimant to a psychiatrist or psychologist. Claimant’s counsel then put him in touch with Brian S. Raditz, Ed.D., (Dr. Raditz) a psychologist whom he has treated with once a week since the incident. Claimant testified that he had never been the victim of a robbery before and that prior to the robbery he had never been in psychiatric or psychological treatment. Claimant testified that he thought about the robbery every day, and that it disrupted his sleep, caused nightmares, anxiety, stress, and difficulty relating with his family. Claimant also took the prescription drug Xanax for his anxiety, as needed. According to Claimant, his sessions with Dr. Raditz have been helpful and he had seen some progress. However, he did not feel that he had improved to the point that he could return to his previous position with Employer because he was in fear for his life and he — 108 — feared that something like that would happen to him again. Claimant also stated that he has not been able to engage in his part-time job as a realtor since the robbery. On cross-examination, Claimant admitted that the store was not in a “low risk” area, had a high volume of shoplifting and had customers on almost a daily basis who he considered to be safety risks. (R.R. at 44a-45a). Regarding these types of incidents, Claimant stated that he knew of the procedures Employer had in place for dealing with emergencies such as a robbery, that he had been trained on these procedures, and that he adhered to them during this incident. Specifically, Claimant received work place violence training in 1999, 2000 and 2005. During this training, Claimant received a manual entitled “Building a Safe Work Place, Preventing Work Place Violence” (R.R. at 52a) and a booklet entitled “Things You Need to Know About Armed Robbery.” (R.R. at 54a). He also received and signed a management directive in April 2005 which stated that violence in the work place might take many forms, including robbery and attempted robbery. Claimant admitted that during his monthly meeting with the district manager, they reviewed what to do in case of an emergency, including a robbery. He also admitted that he received a notification by e-mail that Employer’s retail store in Penndel had been robbed and that he read this email prior to this incident. Claimant stated that the cash registers at Employer’s stores had a special open key for use during emergencies in order to provide quick access and protect employees’ safety. Claimant also presented the deposition testimony of Dr. Raditz, a certified clinical psychologist who first saw Claimant on May 6, 2008. Claimant relayed the circumstances of the robbery during which time Dr. Raditz noted that his affect was flat, he was somewhat fearful, but he elicited no gross signs of psychopathology. Claimant told Dr. Raditz that he was having flashbacks of the robbery, was anxious, depressed, had trouble sleeping, and was angry and withdrawn over his victimization. Dr. Raditz diagnosed Claimant with PTSD and stated that Claimant’s condition was work-related. According to Dr. Rad-itz, Claimant was not capable of returning to his pre-injury position with Employer. Employer presented the deposition testimony of Timothy J. Michals, M.D. (Dr. Michals), a licensed physician certified in clinical and forensic psychiatry. Dr. Mi-chals was hired to conduct an independent psychiatric evaluation of Claimant concerning his work-related injury. During the evaluation on August 20, 2008, Claimant related the facts surrounding the incident and stated that when he thought about the robbery, it got him going, his insides started shaking and he started to breathe quickly. Claimant described his symptoms as trouble sleeping, periodic nightmares, decreased energy, and irritability. While Claimant told Dr. Michals that he believed the treatment was helping and he felt he was getting better, he did not think he would be able to return to his previous job because of the emotional symptoms he was experiencing. Claimant indicated that he hoped to obtain some other type of employment position with Employer. Claimant told Dr. Michals that he received a notification prior to this incident that a robbery had occurred in another liquor store in Bucks County. He also told Dr. Michals that in 1981 his brother was stabbed to death during a robbery. Claimant was very close to his brother but did not receive psychological treatment at that time. Dr. Michals testified that based upon his evaluation and a review of Claimant’s rec — 109 — ords, it was his opinion, with a reasonable degree of psychiatric certainty, that Claimant had experienced, by history, PTSD as a direct result of the April 28, 2008 work injury. Dr. Michals indicated that at the time of the evaluation, he felt Claimant had shown improvement, he gained from his treatment, and while he had some anxiety left, it had faded and no longer rose to the level of a mental disorder. His opinion was that Claimant was not disabled on a psychiatric basis and that he was capable of returning to work in his pre-injury position. Employer also presented the deposition testimony of Charles Keller (Mr. Keller), its training specialist and SEAP coordinator for the southeastern region of the Commonwealth. Mr. Keller testified that Employer established its work place violence training program in the late 1980s due to employees being subjected to robberies, thefts and fights in Employer’s retail stores. The goal of the training was to make employees aware of what could happen and to explain to them what to do in case of an emergency. Mr. Keller stated that Employer gave its managers and employees several booklets as part of this training, including one entitled “Things You Need to Know About Armed Robbery” which outlined how they should act in the specific event of a robbery. Mr. Keller testified that he personally trained Claimant on this subject on September 21, 2001, and April 8, 2005. During this training, Mr. Keller instructed employees to be as calm as possible, do what the suspect said, get the suspect out of the store as fast as possible, lock the doors after he left, and then call the police, the district manager and the audit department. Mr. Keller testified that Claimant followed this training step by step when the store was robbed; he did everything right. According to Mr. Keller, Claimant also received training on a monthly basis from his district manager regarding what was going on in other stores as well as a refresher on workplace violence and thefts. He testified that robberies and fights happened in Employer’s stores and all managers and employees were at risk; that is why Employer provided the training. Specifically, Mr. Keller testified that since 2002, Employer’s retail stores located in Bucks, Montgomery, Chester, Delaware, and Philadelphia Counties had suffered a total of 99 armed robberies.3 The WCJ granted Claimant’s claim petition finding that Claimant met his burden of proof that he was subjected to abnormal working conditions and that the workplace violence he experienced caused his psychic injury. The WCJ found Claimant’s testimony to be credible, persuasive, and consistent with the medical evidence, and she accepted the expert medical opinion of Dr. Raditz as competent and credible. The WCJ stated that she “accepts the [Employer] to the extent to which it is consistent with her findings in this case. To the extent to which [Employee’s evidence is not consistent with Claimant’s testimony, [Employee’s evidence is rejected.” (WCJ Opinion at 8). The WCJ found that armed robbery was an abnormal working condition, despite the incidents of robberies at Employer’s other retail stores and despite the evidence that Claimant attended training on workplace violence, including how to handle a robbery. Notably, the WCJ stated: This Judge finds the evidence relative to the training of employees in ways of behaving during a robbery that best en — 110 — sures safety to the person to whom the gun is pointed, as well as fellow employees and customers competent, she does not find that it [sic] entirely relevant to defend the type of injury that Claimant sustained on April 28, 2008. The fact that Defendant provides immediate debriefing to its employees and refers employees to its SEAP program following a violent workplace event correlates more closely with Claimant’s case-in-chief. (WCJ Opinion at 8). Employer appealed to the Board which affirmed, and this appeal followed.4 On appeal, Employer argues that the WCJ erred in granting Claimant’s Claim Petition because Employer presented uncontroverted evidence, in the form of statistics as well as the training it provides its employees, that the armed robbery Claimant experienced was “normal” for his specific industry. When pursuing a workers’ compensation claim petition, the claimant bears the burden of proving all of the elements required to establish that he or she is entitled to benefits under the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708. Babich v. Workers’ Compensation Appeal Board (CPA Dept. of Corrections), 922 A.2d 57, 63 (Pa.Cmwlth.2007). When the claimant alleges a psychic injury, “he must prove that he was exposed to abnormal working conditions and that his psychological problems are not a subjective reaction to normal working conditions.” Id. (citing Martin v. Ketchum, 523 Pa. 509, 568 A.2d 159 (1990)). Psychic injury cases are highly fact-sensitive and the working conditions must be considered in the context of the specific employment. Pa. Department of Corrections v. Workers’ Compensation Appeal Board (Cantarella), 835 A.2d 860, 862 (Pa.Cmwlth.2003). While there is no bright-line test or a generalized standard, we consider whether the working conditions were foreseeable or could have been anticipated. Id. (citing City of Philadelphia v. Civil Service Commission of the City of Philadelphia, 565 Pa. 265, 772 A.2d 962 (2001)). This Court has repeatedly held that if the employer provided training to its employees on how to handle a specific working condition, that working condition could have been anticipated. See McLaurin v. Workers’ Compensation Appeal Board (SEPTA), 980 A.2d 186, 191 (Pa.Cmwlth.2009) (holding that a SEPTA bus driver could have anticipated being threatened with a gun because such incidents occurred with enough regularity that his employer included the handling of these situations in its drivers’ training program); Babich, 922 A.2d at 64 (holding that a prison nurse could have anticipated strange and disturbing medical situations based upon his six weeks of training and the fact that these situations occurred with some regularity); Cantarella, 835 A.2d at 862-63 (holding that a state prison food service instructor could have anticipated assaults by inmates because all prison employees underwent training to be able to defend themselves). In this case, the WCJ found that Employer provided Claimant with training on workplace violence — some of which was — 111 — specifically geared toward robberies and thefts — as well as “pamphlets and educational tools on the handling of a robbery.” (WCJ Findings of Fact, No. 13.) Claimant admitted that he attended these trainings and received the educational booklets. Given these findings and this Court’s prior decisions outlined above, Claimant could have anticipated being robbed at gunpoint. Moreover, when determining whether a working condition is abnormal, we consider the frequency of its occurrence in the specific industry. Kennelty v. Workers’ Compensation Appeal Board (Schwan’s Home Service, Inc.), 594 Pa. 12, 13, 934 A.2d 692, 692 (2007); see also McLaurin, 980 A.2d at 191. Employer presented uncontested evidence that there had been 99 robberies of its southeastern Pennsylvania retail stores since 2002, which equates to 15 robberies per year or more than one per month. There had been four retail liquor store robberies in close proximity to Claimant’s store within just weeks of the robbery in this case. Unfortunately, given the frequency Employer’s stores had been robbed and the proximity of the recent incidents, robberies of liquor stores are a normal condition of retail liquor store employment in today’s society, and the Board erred in holding otherwise. Accordingly, the order of the Board is reversed. ORDER AND NOW, this 20th day of September, 2011, the March 29, 2010 order of the Workers’ Compensation Appeal Board at No. A09-1266 is reversed. Footnotes [1] The term "psychic” comes from the psychoanalytic term "psyche” which refers to forces diat influence an individual’s thought, behavior and personality. [2] Claimant also filed a Penalty Petition alleging Employer violated the Workers’ Compensation Act by failing to timely file notification accepting or denying the claim. The WCJ denied the Penalty Petition and neither party appealed; therefore, the Penalty Petition is not at issue. [3] Employer also submitted into evidence the deposition testimony of John R. Ross, a private investigator hired to conduct surveillance of Claimant. However, Mr. Ross’ testimony does not go to the main issue in this case. [4] Our review of the Board’s decision is limited to determining whether an error of law was committed, constitutional rights were violated or whether necessary findings of fact are supported by substantial evidence. Babich v. Workers' Compensation Appeal Board, 922 A.2d 57, 63 n. 4 (Pa.Cmwlth.2007). In psychic injury cases, the ultimate determination of whether the claimant established abnormal working conditions is a question of law fully reviewable on appeal. Id., (citing Davis v. Workers’ Compensation Appeal Board, 561 Pa. 462, 751 A.2d 168 (2000)).