Hammerstein v. Lindsay

WIEAND, Judge, concurring and dissenting:

I concur in the majority’s decision to affirm the trial court’s entry of judgment on the pleadings in favor of defendant-hospital on the cause of action stated by the plaintiff for intentional infliction of emotional distress. I am unable to agree, however, and therefore dissent from the majority’s holding that plaintiff is barred by the exclusivity clause of the Worker’s Compensation Act from asserting a cause of action for defamation.

This holding by the majority, which in my best judgment is erroneous, appears to have been caused by the majority’s failure to distinguish between the “issue” preserved for appel *360 late review and the “argument” made by the appellant with respect thereto. “Although this Court is limited to the issues raised by the appellant here and in the lower court, it is not limited to the appellant’s arguments.” Martin v. Poole, 232 Pa.Super. 263 , 267 n. 2, 336 A.2d 363 , 366 n. 2 (1975). It is not the function of an appellate court merely to rebut the “arguments” advanced by an appellant. The court’s function, rather, is to review and decide the issues which have been preserved for appellate review.

The issue in this appeal, which was raised in the trial court by defendant-appellee’s motion for judgment on the pleadings, is whether plaintiff-appellant’s cause of action for defamation against her employer is barred by the exclusivity clause contained in Section 303 of the Worker’s Compensation Act of June 2, 1915, P.L. 736, § 303, as amended, 77 P.S. § 481(a). The trial court held that the action was -barred because “[t]he situations that are set forth in Plaintiffs Complaint comprise purely work-related incidents” and “[t]he personal animus exception ... does not apply in this situation.” Trial court order of July 21, 1993. On appeal from this holding, the plaintiff has argued that the personal animus exception was applicable to preserve her right to bring a common law action for defamation. Although I agree with the majority that the personal animus exception has no application to the facts of this case, this does not decide the underlying issue. That issue is whether a work-related cause of action for defamation is barred by the exclusivity clause of the Worker’s Compensation Act. We are not excused from deciding this “issue” correctly merely because appellant has advanced an inadequate “argument.” Indeed, until it is decided that a defamation action is barred by the exclusivity clause of the Workers’ Compensation Act, there is no need to decide whether the personal animus exception can have application.

In February, 1992, according to the averments of the complaint, Sharon Hammerstein was working as a unit clerk in the emergency room of The Williamsport Hospital when Dr. David Lindsay requested that she put an “STD” (sexually transmitted disease) notation on a patient’s chart. Hammerstein said *361 she would do as requested but continued the project on which she was then working. Apparently angered, Lindsay picked up the chart and shouted that he would take care of it himself. Following this outburst, Lindsay allegedly stated to Hammerstein in the presence of patients and others, “You are a worthless excuse for a secretary.” Lindsay also told Bonnie Eck, an emergency room staff person, that Hammerstein was “uncouth.” When Hammerstein complained to Lindsay about these statements, he allegedly told Hammerstein that she was worthless and should leave. Hammerstein complained to Barb Herriman, the Patient Care Manager, and Bob Kane, the Administrative Director of Ambulatory Services.

Approximately one week later, Hammerstein informed Lindsay that Dr. Ted Larson had responded to Lindsay’s page and was on the phone. When Lindsay failed to take the call, Larson called a second time; whereupon, Lindsay said to Larson, “Sorry Ted, I have a rude, incompetent bitch for a secretary today.” Hammerstein again complained to Herriman and Kane and requested a meeting. Kane thereafter met with Lindsay and later notified Hammerstein that it had been determined that both parties were at fault and that the matter had been resolved. Nevertheless, it is alleged, Lindsay continued to make derogatory remarks about Hammerstein, openly questioned her competency and stated to another physician that she had a “personality disorder.” After approximately five months, Hammerstein left her job as unit clerk.

In April, 1993, Hammerstein commenced a civil action against Dr. Lindsay and The Williamsport Hospital. As to Lindsay, she alleged causes of action for defamation and intentional infliction of emotional distress. As to the hospital, Hammerstein alleged vicarious liability for defamation, and separate liability for the negligent failure to supervise its employees and/or to investigate her complaints about Dr. Lindsay’s conduct. The hospital filed an answer in which it alleged, inter alia, that the tort claims against it were barred by the exclusivity clause of the Worker’s Compensation Act. Thereafter, the trial court granted a motion for judgment on *362 the pleadings by the hospital, holding that the plaintiffs actions against the hospital were barred by the exclusivity clause of the Worker’s Compensation Act.

In general, the Worker’s Compensation Act provides the sole and exclusive remedy for an employee who seeks to recover for injuries sustained in the course of his or her employment. Wagner v. National Indemnity Co., 492 Pa. 154, 161 , 422 A.2d 1061, 1065 (1980); Hershey v. Ninety-Five Associates, 413 Pa.Super. 158,160 , 604 A.2d 1068,1069 , allocatur denied, 532 Pa. 651 , 615 A.2d 341 (1992). The exclusivity clause is set forth in Section 303 of the Act, where it is provided in pertinent part as follows:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) [77 P.S. § 411(1) and (2) ] or occupational disease as defined in section 108 [77 P.S. § 27.1],

Act of June 2, 1915, P.L. 736, § 303(a), as amended, 77 P.S. § 481(a) (footnotes omitted).

In order to determine whether an employee’s alleged injury is subject to the exclusive remedies of the Act or whether such injury is remediable in a common law tort action, a court “must examine the scope of the statute and its remedies to determine the intent of the legislature.” Kuney v. PMA Ins. Co., 525 Pa. 171, 175 , 578 A.2d 1285, 1286 (1990). If a tort action is one for which a remedy cannot be had in worker’s compensation proceedings, the exclusivity clause of Section 303 can have no application. Id. (injuries not covered by the Act are not subject to tort immunity).

“[T]he key to whether the Worker’s Compensation Act precludes a common law right of action lies in the nature of the injury for which [a] plaintiff makes claim, not the nature of [the] defendant’s act which [the] plaintiff alleges to have been responsible for that injury.” Gambrell v. Kansas City Chiefs Football Club, Inc., 562 S.W.2d 163, 168 (Mo.App.1978). *363 “When the allegations of a claim have as their ultimate basis an injury compensable under the Worker’s Compensation Act, the claim must be considered within the framework of the statute.” Kuney v. PMA Ins. Co., supra, 525 Pa. at 176 , 578 A.2d at 1287 . If an injury is not compensable under the Act, however, the employer cannot claim the benefit of the Act’s tort immunity. Id. at 175 , 578 A.2d at 1286 . Accord: Dolan v. Linton’s Lunch, 397 Pa. 114 , 152 A.2d 887 (1959) (The legislature intended that the Act would supersede common law actions only as to injuries within the Act’s coverage.).

After a review of the Act, cases defining the term “injury” as used therein, and the remedies provided by the Act, I conclude that the term “injury” does not include the harm caused to one’s reputation by defamatory remarks.

The Worker’s Compensation Act, as originally enacted in 1915, provided benefits only for injury or death resulting from an “accident” in the course of employment. Act of June 2, 1915, P.L. 736, §§ 101 and 301(a), 77 P.S. §§ 1, 431 (1915). An “injury” was defined by the 1915 Act as “violence to the physical structure of the body, and such disease or infection as naturally results therefrom.... ” Act of June 2, 1915, P.L. § 301(c), 77 P.S. § 411 (1915). In 1972, however, the Act was extensively amended. In Section 101, 77 P.S. § 1, the word “accident” was deleted as a condition for the receipt of benefits. 1 The prior statutory definition of “injury” was deleted, and a broader concept was created. Pursuant to the 1972 amendments, an “injury” encompassed all work-related harm to an employee, regardless of his previous physical condition, including job-related aggravation, reactivation or acceleration of a pre-existing disease. Act of June 2, 1915, P.L. 736, § 301(c)(1), as amended, 77 P.S. § 411(1). By legislative design, occupational diseases were also included in the concept of “injury.” Act of June 2, 1915, P.L. 736, § 301(c)(2), as *364 amended, 77 P.S. § 411(2). See also: Pawlosky v. Workmen’s Compensation Appeal Board, 514 Pa. 450 , 525 A.2d 1204 (1987) (general discussion of changing concept of an “injury” under the Worker’s Compensation Act). Despite the Act’s broadened concept of, an “injury,” the legislature did not provide a specific definition of those injuries covered by the Act in the amendments of 1972.

The Supreme Court, however, has concluded that the word “injury” should be interpreted according to its common and approved usage.’ Pawlosky v. Workmen’s Compensation Appeal Board, supra at 459, 525 A.2d at 1209 . In Pawlosky , the court observed that, “ ‘in common speech the word ‘injury,’ as applied to personal injury to a human being, includes whatever lesion or change in any part of the system produces harm or pain, or a lessened facility of the natural use of any bodily activity or capability.’ ” Id. (emphasis omitted), quoting Creighan v. Firemen’s Relief and Pension Fund Board, 397 Pa. 419, 425 , 155 A.2d 844, 847 (1959). More recently, in Al’s Radiator Service v. Workmen’s Compensation Appeal Board, 157 Pa.Commw. 432, 630 A.2d 485 (1993), the Commonwealth Court identified the types of injuries contemplated by the Act by saying: “Under the Act, there are two types of injuries. The first and most obvious is the physical injury, arising in the course of employment, made compensable under Section 301(c)(1) of the Act, 77 P.S. § 411(1). The other type of injury is the ‘occupational disease’ which, by virtue of Section 301(c)(2) of the Act, 77 P.S. § 411(2), also constitutes a compensable injury.” Id. at 437, 630 A.2d at 487 . Pennsylvania’s appellate courts, however, have not limited the scope of the term “injury” to physical impairment of the person only. Mental illness or psychiatric injury is compensable under the Act if it is work-related and other than a subjective reaction to normal working conditions. Martin v. Ketchum, Inc., 523 Pa. 509 ,. 516, 568 A.2d 159, 163 (1990); Archer v. Workmen’s Compensation Appeal Board, 138 Pa.Commw. 309, 314, 587 A.2d 901, 903 (1991). For purposes of receiving compensation under the Act, therefore, an “injury” has been interpreted to be either disease or physical and/or mental impairment of the person.

*365 An examination of the benefits provided by the Act also supports the conclusion that the concept of “injury” embodies a mental or physical condition affecting the employee’s person. When a compensable injury or disability occurs, the employee receives a specific amount of compensation as set forth in the compensation schedules contained in the Act. See generally: Act of June 2, 1915, P.L. 736, § 301(a), as amended, 77 P.S. § 431. The amount of compensation or payment an injured employee receives depends on whether a partial or total disability has been sustained. See generally: Act of June 2, 1915, P.L. 736, §§ 306(a) and 306(b), as amended, 77 P.S. §§ 511 and 512. Disability, as contemplated by the Act, “is ‘the loss, total or partial, of earning power’ ” which results from a work-related injury. Kachinski v. Workmen’s Compensation Appeal Board, 516 Pa. 240, 248 , 532 A.2d 374, 378 (1987), quoting Woodward v. Pittsburgh Engineering and Construction Co., 293 Pa. 338, 340 , 143 A. 21, 22-23 (1928). See also: Harmon Mining Co. v. Workmen’s Compensation Appeal Board, 157 Pa.Commw. 326, 330 n. 5, 629 A.2d 312 , 314 n. 5 (1993); Smith v. Workmen’s Compensation Appeal Board, 63 Pa.Commw. 340, 345, 437 A.2d 1301, 1303 (1981). Two of the factors considered by the statute in determining compensation are the injured employee’s earning power and the injury’s effect thereon. The Act also provides that an injured employee may receive payment for permanent injuries, such as the loss of a hand or eye. See generally: Act of June 2, 1915, P.L. 736, §§ 306(c, d) and 306.1, as amended, 77 P.S. §§ 513, 516. The Act also requires that the employer provide an injured employee with payment for medical services, medicines and supplies, hospital treatment and accommodations, orthopedic appliances, etc. See generally: Act of June 2, 1915, P.L. 736, § 306(e), as amended, 77 P.S. § 531. It is apparent, therefore, that the remedial provisions of the Act embody the concept that a compensable injury is limited to a type of harm which causes an employee to suffer a loss of earning power and/or some type of medical treatment.

A defamation action seeks damages for the harm caused to one’s reputation. “An action for defamation is based on a violation of the fundamental right of an individual to enjoy a *366 reputation unimpaired by false and defamatory attacks. The gist of such an action is injury to the plaintiffs reputation.” Berg v. Consolidated Freightways, Inc., 280 Pa.Super. 495, 500 , 421 A.2d 831, 883 (1980). The main purpose of an action for defamation “is to give the innocent and injured plaintiff a public vindication of his [or her] good name.” Graham v. Today’s Spirit, 503 Pa. 52, 57 , 468 A.2d 454, 457 (1983), quoting Gaetano v. Sharon Herald Co., 426 Pa. 179, 183 , 231 A.2d 753, 755 (1967). The essence of the action, therefore, is not to compensate one for an “injury” as contemplated by the Worker’s Compensation Act, i.e., a physical or emotional impairment to one’s person which often requires medical treatment. “In fact, an injury to reputation affects a proprietary interest and as such is not a personal injury at all, any concomitant physical or mental injury notwithstanding.” Battista v. Chrysler Corp., 454 A.2d 286, 289 (Del.Super.1982).

In the present case, appellant’s complaint seeks damages for defamation which allegedly injured her professional and personal reputation. No provision is made in the Worker’s Compensation Act for the recovery of damages for harm to one’s reputation. Because there is no relation between the injuries sought to be addressed by the Worker’s Compensation Act and the harm or damage alleged in appellant’s defamation action, I would hold that the Act does not allow benefits therefor. For this reason, appellant’s slander action against appellee is not within the exclusivity clause of the Act.

Although the Pennsylvania appellate courts have not heretofore considered this issue, the clear weight of authority in other jurisdictions supports the view that a defamation action is not within the purpose of worker’s compensation and can be maintained by an employee in a civil action against the employer. See, e.g.: Oliver v. Wal-Mart Stores, Inc., 209 Ga. App. 703 , 434 S.E.2d 500 (1993); Loges v. Mack Trucks, Inc., 308 S.C. 134 , 417 S.E.2d 538 (1992); Snead v. Harbaugh, 241 Va. 524 , 404 S.E.2d 53 (1991); Battista v. Chrysler Corp., supra; Howland v. Balma, 143 Cal.App.3d 899 , 192 Cal.Rptr. 286 (1983). I would hold, therefore, that the trial court erred when it held that the Worker’s Compensation Act barred appellant’s claim for defamation.

*367 In concluding, as I do, that the judgment entered in favor of the hospital in the defamation action should be reversed, I do not suggest that appellant was defamed or that she has stated a viable cause of action for defamation against the hospital. Those issues were not decided by the trial court and have not been argued on appeal. With respect to such issues, I express no opinion. I would hold only that an action for defamation is not within the exclusivity clause of the Worker’s Compensation Act. Because the trial court held otherwise, I would reverse; inasmuch as the majority’s decision appears to hold otherwise, I respectfully dissent.

. A similar change was made in Section 301(a), 77 P.S. § 431. Section 301(a), provides in pertinent part, “Every employer shall be liable for compensation for personal injury to, or for the death of each employe, by an injury in the course of his [or her] employment, and such compensation shall be paid in all cases by the employer....” Act of June 2, 1915, P.L. 736, § 301(a), as amended, 77 P.S. § 431.