# Zink v. Workers' Compensation Appeal Board

> Commonwealth Court of Pennsylvania · July 10, 2003 · 828 A.2d 456

URL: https://www.frixlaw.com/law-library/cases/9701639

## Case

- **Full name:** George ZINK, Petitioner, v. WORKERS’ COMPENSATION APPEAL BOARD (GRAPHIC PACKAGING, INC.), Respondent
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** July 10, 2003
- **Citations:** 828 A.2d 456; 2003 Pa. Commw. LEXIS 503
- **Precedential status:** Published
- **Opinion:** Dissent by Leavitt
- **Judges:** Colins, President Judge, McGinley, Judge, Smith-Ribner, Judge, Friedman, Judge, Leadbetter, Judge, Simpson, Judge and Leavitt, Judge
- **Cited by:** 3 later opinions in the Frix Law Library

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## Opinion text

DISSENTING OPINION by
Judge LEAVITT.
Respectfully, I dissent. Claimant’s service to his country, which came at great personal cost, commands the respect of this Court. However, as the WCJ correctly concluded, albeit ruefully, this service does not entitle him to an award of work *461 ers’ compensation benefits “no matter how just a result such an award would be.” WCJ Decision at 10.
Claimant began to work for Employer in 1983. 1 In May of 1995, Employer and the United Paperworkers Union (Union) negotiated, at the Union’s request, a rotating work schedule. Under the collective bargaining agreement, all employees, including Claimant, were scheduled to work in rotating shifts, irrespective of prior practice or personal preference. On June 7, 1996, Claimant filed a grievance over the rotating shift, and in July he was informed by Employer that it was negotiating with the Union on exempting certain classifications from the rotating schedule and that once those negotiations were concluded, Claimant would be assigned his preferred shift, i.e. the third shift. On July 23, 1996, Claimant, who was at the time working the third shift, left work early, informing his supervisor that he was too stressed to continue working. He never returned.
After Claimant’s departure, Employer attempted to contact Claimant several times by telephone to inform him that he would be permanently assigned to the third shift, as Claimant requested. When these attempts failed, Employer, on August 21, 1996, sent Claimant a letter offering him a third shift permanent assignment. Claimant did not respond to this letter. On August 26, 1996, Employer sent a letter advising Claimant that it considered Claimant to have voluntarily separated from employment in light of his absence since July 23,1996, and his failure to respond to Employer’s earlier letter. Claimant did not respond.
In its response to Claimant’s appeal, Employer questions whether Claimant is disabled as a factual matter in light of his testimony that even his treating physicians wanted him to remain on the job. Employer also notes that Claimant stated that he left his job because he has been in pain for 25 years as a result of his war injuries. These factual issues are not addressed because I believe the outcome of Claimant’s appeal is determined by our Supreme Court’s holding in Metropolitan Edison Co. v. Workmen’s Compensation Appeal Board (Werner), 553 Pa. 177 , 718 A.2d 759 (1998).
In Metropolitan Edison, the claimant was an assistant load dispatcher who worked on rotating shifts, set on a six-week rotation. After 20 years, the claimant took a lower paying, day-shift position. He then filed a claim petition asserting that the cumulative stress of working on a rotating shift had rendered him partially disabled and unable to continue to perform the job of assistant load dispatcher.
The Supreme Court rejected the claim, holding that “[t]he current version of the statute ... does not define injury to include physical ailments that arise from normal working conditions such as eight-hour shifts.” Id. at 187 , 718 A.2d at 764 . It held specifically that “normal working conditions, such as requiring an employee to work an eight-hour shift, do not constitute an injury under the Act.” Id. Further, having to work a certain shift is not an injury “for purposes of the Act merely because an employee undergoes physical or psychic reactions to those conditions.” Id. The Court warned against confusing
cause with effect. The cause, or stimulus, of [claimant’s] physical complaints is the scheduling of the hours that [claimant] worked. Neither the condition of *462 Meb-Ed’s premises nor the job functions of [claimant’s job] resulted in an injury to [claimant.]
Id.
This holding could not be clearer. Assignment to a particular shift cannot give rise to a compensable injury under the Act. I agree with the observation of the WCJ that there is no “air” in the Metropolitan Edison holding for a contrary result here.
Accordingly, I would affirm.
Judge LEADBETTER joins in this dissent.
. The majority notes that Claimant was hired under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, Pub.L. No. 93-508, 88 Stat. 1578 (1974). This federal law required, inter alia, employers to re-hire Vietnam veterans at their pre-service position. The law has no discemable relevance to the relationship between Employer and Claimant.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9701639. Public record. Not legal advice.