Babich v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Judge FRIEDMAN.

I respectfully dissent. The majority holds that Eli Babich (Claimant) failed to establish that he suffered a psychic injury as a result of abnormal working conditions while working as a registered nurse at the State Correctional Institution at Pittsburgh (SCI-Pittsburgh). For the following reasons, I cannot agree.

I. Case Law

Psychic injury cases are highly fact-sensitive. City of Pittsburgh v. Logan, 570 Pa. 500 , 810 A.2d 1185 (2002). Thus, in classifying working conditions as normal or abnormal, courts consider the claimant’s specific work environment. RAG (Cyprus) Emerald Resources, L.P. v. Workers’ Compensation Appeal Board (Hopton), 590 Pa. 413 , 912 A.2d 1278 (2007). Courts will deny compensation to a claimant for injuries resulting from events that are expected in the relevant work environment. Id.

In Logan , our supreme court had to decide whether a police officer was sub *68 jected to abnormal working conditions when someone placed a $50,000 bounty on his life. The court stated that some threats are normal, but that does not mean, as a matter of law, that all types and manners of threats may be anticipated in the course of an officer’s duties. Logan . One witness testified that it was the first time that he heard of anyone placing a $50,000 bounty on a police officer’s life. Thus, the court concluded that such a threat was abnormal, i.e., could not have been anticipated in the performance of the officer’s duties. Id.

Although the abnormal threat in Logan was a “first,” in Kennelty v. Workers’ Compensation Appeal Board (Schwan’s Home Service, Inc.), 899 A.2d 1204 (Pa.Cmwlth.2006), this court held that, although a food delivery person had been involved in five or six robbery incidents, a holdup at gunpoint constitutes an abnormal working condition for a food delivery person. In other words, the fact that the food delivery person had been a robbery victim multiple times in the past did not mean that he could expect a robbery in the normal performance of his duties. 1

An abnormal incident need not be a “first,” but, to be considered unexpected in the normal performance of one’s job duties, the incident must be unusual. Thus, in RAG, our supreme court stated:

[Our case law] demonstrates the need for courts to look at the totality of the circumstances. As we can envision a single incident that could constitute an abnormal working condition, if sufficiently severe and unusual in the context of the relevant working environment, so too can we envision that relatively minor conduct could result in a determination of abnormal working conditions if that conduct is imposed repeatedly and is demonstrably unusual in that environment.

RAG, 590 Pa. at 430-31, n. 10 , 912 A.2d at 1289 n. 10 (emphasis added).

II. Abnormal Incidents

Based on the above rule of law governing abnormal incidents, I would conclude from the evidence presented in this case that Claimant was subjected to the following two abnormal incidents while working as a nurse at SCI-Pittsburgh.

A. Self-Mutilation

Here, Claimant treated various types of injuries from 1999 to 2001, many of which he could have expected. However, Claimant credibly testified as follows regarding the “worst incident” he ever had seen:

[Inmate Chad Jones had] blood all over his trunks, blood all over his face. I went, whoa, what happened. So I pick up his drawers and he had [a] testicle hanging down to his knee....

So immediately you had to grab his testicle and put it in place.... I sent him out to the hospital. The hospital called up and said, “We’ve got a problem.... We’re missing a testicle.” They found strands of testicle in his teeth.

So I got permission ... to go into his cell with a little cup ... with a piece of cardboard.... It looked like Swedish meatballs. Scraped them up off the ground and put them in the cup and brought [them] back in a cup.

(R.R. at 48a-49a.) Claimant’s supervisor, Diane Manson, conceded as a witness for Claimant’s employer that this incident was *69 abnormal. 2 (R.R. at 363a.) Ted Babich, Claimant’s father and a prison guard at SCI-Pittsburgh for sixteen years, testified that he knows of no other time when an inmate cut off his testicles. (R.R. at 451a.)

Given the admission of Claimant’s supervisor and the testimony that no other inmate had mutilated himself in this manner over a sixteen year period, I would conclude that this type of self-mutilation was unusual. Indeed, there is no evidence in the record suggesting that Claimant could have anticipated that, in the performance of his normal duties, he would be required to treat an inmate’s mutilated testicle or to scrape the remains of an inmate’s testicle from the floor of a prison cell. Certainly, under Logan, the incident must be considered abnormal. 3

B. Slit Throat

Claimant also credibly testified about his treatment of inmate Albert Hines, who attempted to commit suicide by slashing his throat.

He took a razor blade and cut from here to here. He cut his jugular, cut it right in half. They brought him over to triage. Basically, I had to do CPR-He was dead, clinically dead, wasn’t even breathing. I brought him back doing CPR, suctioning his mouth.

(R.R. at 62a.) As to whether a prison nurse could expect to give CPR under such circumstances, Manson, who had worked at SCI-Pittsburgh for nine and a half years, testified:

Q And have you ever had to give CPR to an inmate that slashed their throat? A As a matter of fact, yes, I have.

Q When was that?

A I can’t recall the year to date at this time, but yes, I have.

Q How long ago?

A Oh, I would say it was a couple of years, maybe three years, three years ago.

Q You [would] consider that to be an abnormal event, even in your prison then, wouldn’t you?

A Abnormal, yes, we don’t — yes.

(R.R. at 362a-63a) (emphasis added). No other prison nurse testified that he or she ever was required to perform CPR on an inmate who slashed his throat. Because Manson only gave CPR to an inmate who slashed his throat once in nine and a half years, I submit that the incident was unusual for the work environment of a nurse at SCI-Pittsburgh. Thus, I would conclude that Claimant could not have anticipated the incident in the performance of his normal duties and that the incident constitutes an abnormal working condition. 4

*70 C. Other Work Environments Irrelevant

The WCJ found that nurses in medical facilities outside the prison context could be exposed to the above medical situations, stating:

Also, I do not believe that the medical situations to which the claimant was exposed are abnormal for anyone working as a registered nurse. Even in the outside population, people mutilate their own bodies, and attempt to commit suicide. Once they have done so, they are taken to medical facilities, and medical professionals have to deal with them. Not pleasant, but not abnormal for that profession either.

(WCJ’s op. at 2.) However, the WCJ’s legal reasoning is flawed. The fact that a medical situation could occur at a medical facility does not make that medical situation a common situation at the medical facility. The types of medical situations that could require treatment at a medical facility are limited only by the human imagination. If a nurse claiming a psychic injury must prove that no one ever imagined a particular medical situation in order to demonstrate an abnormal working condition, then it would be impossible for a nurse to establish a compensable psychic injury. Even horrific rare diseases, including those unknown to modern medicine, would not qualify as abnormal because they could occur at a medical facility.

Moreover, in my view, the medical situations that nurses face outside the prison context are irrelevant. Although the majority would disagree, (see majority op. at 12), I submit that the WCJ erred in considering evidence relating to medical facilities outside the context of SCI-Pittsburgh. The law is clear that, in determining whether an incident constitutes an abnormal working condition, courts examine only the claimant’s specific work environment. RAG.

Assuming that such evidence was relevant, the WCJ made no finding as to whether mutilated testicles and slit throats were common or uncommon in medical facilities outside the prison context. Every medical professional who testified against Claimant, and who was asked the question, testified that these medical situations were abnormal. As indicated above, Manson testified that the mutilated testicle and slashed throat incidents were abnormal. Donald Skunda, another nurse supervisor, testified that they were abnormal. (R.R. at 404a.) Stuart S. Burstein, M.D., testified that if one of these events occurred during the workday of a nurse at a hospital, it would be abnormal. (R.R. at 311a.)

III. Expectations from Training

The majority states that Claimant could have anticipated the medical situations he faced at SCI-Pittsburgh because Claimant received six weeks of training after he was hired in 1999. (Majority op. at 11-12.) I disagree.

The training that Claimant received in 1999 could not have prepared Claimant for the mutilated testicle and slashed throat incidents. Skunda, who provided the training, testified as follows:

Well, we tell them that in the RHU ... you can be expected to be cussed at, whistled. You can expect to ... have inmates expose themselves to you.... [T]hey can throw urine and feces at you. They’ll even threaten you at times, *71 threaten your family. A lot of times they do it just to see what your reactions are. That’s their ... entertainment.

(R.R. at 395a.) In his training program, Skunda did not even mention the types of medical situations that a nurse might face in prison.

Moreover, Claimant asserts that he began working at SCI-Pittsburgh before the criminally insane were moved to SCI-Pittsburgh in 2000. The majority states that there is “no evidence of this in the record.” (Majority op. at 64.) I agree that there is no evidence establishing that the inmates moved to SCI-Pittsburgh in 2000 were “criminally insane”; however, there is evidence that the inmates were mentally disturbed and that their behavior was unpredictable.

Ted Babich testified that, in 2000, the Commonwealth moved prisoners with mental conditions, the “mentally disturbed,” from various state prisons to the Long-Term Segregation Unit (LTSU) at SCI-Pittsburgh. (R.R. at 448a-49a.) The witness further testified that these prisoners are “totally unpredictable,” calling them “nuts” and stating that “you don’t know what they’re going to do.” (R.R. at 452a, 470a-71a.) In his training program, Skunda did not mention a possible influx of unpredictable and mentally disturbed inmates. Thus, the six-weeks of training did not prepare Claimant for that possibility.

IV. Expectations of a Maximum Security Prison

The majority states that Claimant could have anticipated the horrible working conditions he faced at SCI-Pittsburgh because Claimant was aware that SCI-Pittsburgh was a maximum security prison. (Majority op. at 63-64.) However, such reasoning assumes that all maximum security prisons provide the same working conditions. This is not supported by the record.

Ted Babich testified that a lieutenant and a deputy from SCI-Pittsburgh went to Colorado to inspect the prisons in Colorado. As a result, after Claimant left SCI-Pittsburgh, prison officials made changes in the cells that now make it impossible for inmates to throw feces and urine out the side of the doors. (R.R. at 460a-61a.) Thus, SCI-Pittsburgh is now a maximum security prison where inmates cannot throw feces and urine on the nurses. This means that no one would expect inmates to throw feces and urine at prison nurses, and, if it occurred, it now would be abnormal.

In addition, when Claimant worked at SCI-Pittsburgh, it was a maximum security prison that required nurses to sometimes make their rounds by themselves. Once Claimant left, SCI-Pittsburgh required that nurses be accompanied by guards at all times. (R.R. at 457a.) Thus, SCI-Pittsburgh is now a maximum security prison where prison nurses are not required to make their rounds by themselves. This means that no one would expect prison nurses to make rounds unprotected by guards, and, if it occurred, it now would be abnormal.

Finally, when Claimant worked at SCI-Pittsburgh, inmates could grab nurses through the feed slots while the nurses were dispensing medications. (R.R. at 33a.) Once Claimant left, SCI-Pittsburgh required that inmates move to the back of the cell while nurses dispensed medications. (R.R. at 458a.) Thus, SCI-Pittsburgh is now a maximum security prison where inmates cannot grab nurses while they dispense medications. This means that no one would expect inmates to grab nurses through the feed slots, and, if it occurred, it now would be abnormal.

*72 In sum, Claimant could not have expected the above working conditions based on the mere fact that he knew SCI-Pittsburgh was a maximum security prison. As indicated, all maximum security prisons are not the same.

Accordingly, unlike the majority, I would reverse.

Judges McGINLEY and SMITH-RIBNER join in this dissent.

. This court explained that we are “unprepared to accept that our society has deteriorated to the point where a holdup at gunpoint does not constitute an 'abnormal working condition’ for a food delivery person.” Kennelty, 899 A.2d at 1208 .

. Manson testified that she had seen worse medical situations. However, such testimony is irrelevant to whether Claimant could have anticipated this particular medical situation.

. The WCJ found that Claimant credibly testified that he was exposed to the incidents he described but that Claimant was not the only employee in his position to be so exposed. However, as indicated, there is no evidence that any other prison nurse ever was required to treat an inmate who mutilated his testicles and then scrape the remains of a testicle from the floor of the prison cell.

.Claimant’s medical expert, P. Christopher Coburn, Ph.D., testified that this incident was the “straw that broke the camel's back.” (R.R. at 174a.) I note that, in Logan , where an abnormal threat was made to a police officer, our supreme court stated, “While ... [the abnormal threat] predated [the officer's] collapse, [the abnormal threat] undoubtedly set the stage for [the officer’s collapse] when the cumulative assaults [i.e., normal working conditions,] occurred, and [the abnormal threat] enhanced their effect.” Logan, 570 Pa. at 509-10 , 810 A.2d at 1190 . Thus, to prove that an abnormal working condition caused a psychic injury, a claimant need not *70 prove that the abnormal working condition precipitated the injury, i.e., that it was the "straw that broke the camel’s back”; the claimant need only prove that an abnormal working condition exists in the chain of causation.