Frog, Switch & Manufacturing Co. v. Workers' Compensation Appeal Board

*210 DISSENTING OPINION BY

Judge McGINLEY.

I must respectfully dissent.

Although the Majority recites the correct test to determine whether the WCJ’s finding of fact are supported by substantial evidence, I do not believe that the Majority applied the standard correctly and neither “viewed the evidence in a light most favorable to Claimant” nor “drew all reasonable inferences therefrom.” In fact, I believe it did just the opposite.

With regard to Finding of Fact 14, the Majority places emphasis on the fact that Claimant did not cry uncontrollably immediately after the meeting about the “hanging noose,” rather, she cried uncontrollably after the Feuchenberger meeting when he stated he did not feel safe working beneath Claimant’s crane. For the Majority to focus on this picayune distinction as the basis to reverse is not in accord with the appropriate standard of review.

Whether Claimant immediately cried uncontrollably, cried later, or stood there with her jaw on the ground was not the dispositive issue. The salient issue was whether that incident, ^together with the “N word” incident, and other incidents, such as when Claimant’s co-workers told her she should not be there because she was female, created an abnormal working environment which caused Claimant’s psychological injury.

Claimant testified about the inappropriate hostile gender-based and racial remarks and incidents and the WCJ credited her testimony. There was no dispute that at least three race and/or gender based incidents occurred which involved: (1) the statement that “females should not work in the foundry;” (2) the noose hanging in the foreman’s office, and (8) the incident where Claimant’s supervisor stated to Claimant that he would not be treated like a “N word” on his day off. The Employer’s witnesses confirmed that these events took place. There is also no dispute that Hurley told Claimant that “females should not be working in the foundry.” Hockley testified that after seeing the noose hanging in Zimmerman’s office, Claimant was very upset. These comments were made directly by or in front of Claimant’s direct supervisor and/or the CEO and the director of safety. Claimant described being shocked and upset by the incidents. She responded to Zimmerman by pointing out how derogatory it was to say the “N word” right in front of her. With regard to the hanging noose incident, Claimant “could not believe” her eyes. She immediately summoned a foreman and said that “somebody needs to take that down.”

The Board agreed with the WCJ that these events, taken together, constituted an abnormal working condition, and that the cumulative effect of these events, which occurred in a four month time span from May-August 2009, (and which had been preceded by similar events throughout Claimant’s employment) was a diagnosis of atypical depression. The WCJ credited Claimant’s testimony that these events culminated in her losing control one day at work and leaving to see a doctor. Hearing Transcript, December 9, 2010, at 68-73; R.R. at 15-22.

Essentially, the Majority is overruling the WCJ’s credibility determinations and ignores that the WCJ based its conclusion concerning an abnormal working condition on the culmination of several specific events which occurred over a five-month period.

The Majority again focuses on the trivial when it concludes that Finding of Fact 38, that Dr. Dissinger’s “testimony” was competent, was not supported by substantial evidence because Dr. Dissinger did not “testify.” First, clearly, by the word “tes *211 timony” the WCJ was referring to the medical opinions of Dr. Dissinger which were presented as evidence by Claimant. The WCJ specifically stated that his conclusion was based on, inter alia, “Claimant’s testifying (report) expert, Howard Dissinger.”

Further, the Majority concludes that Dr. Dissinger’s opinions were not supported by substantial evidence because they did not reference the noose or the “N word.”

Although the noose incident and the “N word” were not directly referenced in his report, the nexus between the specific abnormal working conditions and Claimant’s psychic injury was set forth in the records of both Dr. Wampler, the primary care provider, and Dr. Bagian, the U.S. Health-works panel physician. Both Dr. Wampler and Dr. Bagian evaluated Claimant before she was referred to Dr. Dissinger, and their treatment records include specific references to Claimant’s complaints of the “N word” and inappropriate gender and race-based comments. Dr. Dissinger listed the specific work conditions which resulted in Claimant’s atypical depression, including: (1) problematic male co-workers; (2) harassment; and (3) a stressful and disagreeable work environment.

When Dr. Dissinger’s report is read in conjunction with Dr. Wampler’s and Dr. Bagian’s reports, and the undisputed evidence of the gender and race-based harassment Claimant faced in the workplace, the only reasonable inference to draw is that Dr. Dissinger was referring to those events. The record is replete with testimony from both sides that these reprehensible incidents did occur and that Claimant became upset to the point where she lost control at work and left to see a doctor. From the time Claimant first sought medical treatment for stress, she indicated that it was due to continual harassment at work based on her gender and race. Dr. Wampler stated: “The ‘N word’ has been used by her co-workers and due to the fact that she wants to keep her job she has not done more about the incident than ask for an apology.”

To reverse the Board on the grounds that the references in Dr. Dissinger’s report to “harassment,” “problematic male co-workers” and “a stressful and disagreeable work environment” were not specific enough to implicate the gender and race-based incidents at issue goes directly against our Supreme Court’s caution in Payes v. Workers’ Compensation Appeal Board (Commonwealth Pa. State Police), 621 Pa. 564 , 79 A.3d 543, 549 (2013), “such a fact-sensitive inquiry requires deference to the fact finding functions of the WCJ and, accordingly, we limit our review of those factual findings to determining whether they are supported by the evidence and overturn them only when they are arbitrary and capricious.” The WCJ’s finding that Dr. Dissinger treated Claimant in connection with her exposure to the above racial and gender-based incidents was certainly not arbitrary or capricious in these circumstances.

With regard to Findings of Fact 39 and 40, the Majority basically concludes that the WCJ had no valid grounds to reject the expert opinions of Dr. Cohn who testified that Claimant’s condition was a “subjective reaction to the normal and expected demands of Employer.” This ties in with the Majority’s conclusion Claimant failed to prove she sustained a work injury as a result of abnormal working conditions.

In classifying working conditions as normal or abnormal, this Court does not employ a bright line test or a generalized standard, but instead, considers the specific work environment of the claimant. RAG (Cyprus) Emerald Resources, L.P. v. Workers’ Compensation Appeal Board (Hopton), 590 Pa. 413 , 912 A.2d 1278, 1288 *212 (2007). This Court’s review is limited to determining whether those events gave rise to abnormal working conditions. Community Empowerment Association v. Workers’ Compensation Appeal Board (Porch), 962 A.2d 1 (Pa.Cmwlth.2008).

Once again, the work environment of. Claimant was not disputed. Claimant was the only African-American female in the workplace of approximately 200 males. It is uncontested that the incidents as described by the WCJ actually occurred. Zimmerman used the “N word” when he told Claimant that he did not want to be treated like a “N word” on his day off. Shortly thereafter Claimant saw a noose hanging from her foreman’s shared office. Both Claimant’s and Employer’s witnesses testified that these events occurred. Critically, the WCJ did not credit Employer’s explanation of the hanging noose in the foreman’s office, i.e., that it was a private joke between Zimmerman and Smith. The WCJ believed the hanging noose incident was intentional and directed at Claimant.

I believe the Majority errs by reversing the Board and ignoring that the repeated acts of racial and gender-based harassment created abnormal working conditions in this situation. As the WCJ poignantly observed:

It should be abundantly clear that any reasonable person, let alone a reasonable African-American female in an all male and virtually all white environment, would perceive references to the ‘[N word],’ a noose, and comments about refusal to work under her crane, or that women don’t belong, as degrading and hostile, and certainly not part of a normal working environment. The reasons that the word ‘[N word]’ constitutes wholesale racial defamation [are] because it attributes very degrading personal and racial characteristics] to African-Americans. The association of a noose with lynching’s, a historical form of domestic violence against African-American[s], needs no further explanation.

WCJ Decision at 7-8.

I would affirm the Board.

Judge LEAVITT did not participate in the decision in this case.

Judge McCULLOUGH joins in this Dissent.