# Rag (Cyprus) Emerald Resources, LP v. Workers' Compensation Appeal Board

> Commonwealth Court of Pennsylvania · May 25, 2004 · 850 A.2d 833

URL: https://www.frixlaw.com/law-library/cases/9759568

## Case

- **Full name:** RAG (CYPRUS) EMERALD RESOURCES, LP, Petitioner v. WORKERS’ COMPENSATION APPEAL BOARD (HOPTON), Respondent
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** May 25, 2004
- **Citations:** 850 A.2d 833; 2004 Pa. Commw. LEXIS 404
- **Precedential status:** Published
- **Opinion:** Dissent by Leavitt
- **Judges:** Colins, McGinley, Pellegrini, Friedman, Cohn, Simpson, Leavitt
- **Cited by:** 2 later opinions in the Frix Law Library

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## Opinion text

DISSENTING OPINION BY
Judge LEAVITT.
I join Judge Friedman’s dissent for two reasons.
First, I agree that the majority’s decision cannot be reconciled with this Court’s holding in Zink v. Workers’ Compensation Appeal Board (Graphic Packaging, Inc.), 828 A.2d 456 (Pa.Cmwlth.2003) (en banc ). 1 The overriding principle in Zink is that the claimant’s psychological injuries, caused by his service in the Vietnam War, were exacerbated or aggravated when Zink was compelled to work rotating shifts.... Id. at 460 . Accordingly, in determining whether psychic injury was caused by abnormal working conditions, the preexisting psychological condition of the claimant must be considered. Stated otherwise, a psychologically fragile, or eggshell, claimant may be eligible for benefits whereas another psychologically stronger claimant may not. Here, Claimant’s psychological condition rendered him more prone to psychic injury, or aggravation, as was the situation in Zink . Under Zink , Claimant is eligible for benefits.
Second, our precedent is not establishing clear principles in this area of the law. The majority’s holding will leave practitioners wondering whether Claimant has been denied benefits because his psychological injury was caused by words only or because the verbal abuse did not occur on enough occasions. If this Court is going to decide every abnormal working conditions case on the facts, then it should defer to the factual findings of the WCJ and the Board. I agree with Judge Friedman that absent a clearly articulated legal principle, such as words-only cannot cause a compen-sable injury, the majority is simply substituting its judgment for that of the factfin-der. Here, it was found by the WCJ that the threats of homosexual assault, even in an underground coal mine, were not normal working conditions.
For these reasons, I dissent.
Judge FRIEDMAN joins in this dissent.
. I dissented from Zink because our Supreme Court established in Metropolitan Edison Co. v. Workmen’s Compensation Appeal Board (Werner), 553 Pa. 177, 186, 718 A.2d 759, 764 (1998) that normal working conditions, such as requiring an employee to work a [rotating] eight-hour shift, [does] not constitute an injury under the Act. Further the employer’s knowledge of the claimant's condition in Zink did not provide a basis for awarding compensation. A new collective bargaining agreement required all employees to work a rotating shift, and the employer was working with the union to establish an exception for the Claimant when he walked off the job.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9759568. Public record. Not legal advice.