Opinion
Submitted on Briefs July 12, 1991.
Decided January 8, 1992.
Appeal from the Workmen's Compensation Appeal Board, No. A89-2363.
John C. Lyons, for petitioner.
Charles F. McElwee, for respondent.
Before COLINS and BYER, JJ., and BARBIERI, Senior Judge.
Robert D. Reigle appeals from an order of the Workmen's Compensation Appeal Board (WCAB) affirming a referee's denial of benefits for mental injuries allegedly caused by stress from his job with Federal Express (Fed Ex). We affirm.
Reigle came to work part-time for Fed Ex during the height of the Christmas season. After three days of training, Fed Ex sent him out alone to make deliveries. Reigle failed to complete all the "priority one" deliveries before the deadline. He became worried. Michael Shannon, his supervisor, told him not to worry because this was expected of trainees, but Reigle continued to be tense and nervous. The next day, Reigle turned in his uniform and informed Shannon he could not take the pressure.
The "priority one" service offered by Fed Ex delivers packages at an extra charge by 10:00 a.m.
Lawrence Altaker, M.D., a board-certified psychiatrist, treated Reigle and diagnosed him as suffering from major depression. Dr. Altaker opined that Reigle's job at Fed Ex precipitated his depression.
Although unequivocal medical evidence supported finding that Reigle suffered an injury in the course of his employment, the referee denied benefits because Reigle failed to prove that abnormal working conditions caused his disability. The WCAB affirmed.
Section 301(c)(1) of the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 411 (1).
On appeal, Reigle argues that because he proved a relationship between work and his injury, the referee and the WCAB erred in requiring proof of abnormal working conditions. We do not agree.
Our scope of review is limited to determining violations of constitutional rights, errors of law, violations of agency practice and procedure and whether findings of fact are unsupported by substantial evidence. 2 Pa. C.S. § 704.
The finding of an abnormal working condition for purposes of determining whether a mental injury is compensable is a mixed question of fact and law. Marsico v. Workmen's Compensation Appeal Board (Department of Revenue), 138 Pa. Commw. 352, 588 A.2d 984 (1991).
In Martin v. Ketchum Inc., 523 Pa. 509, 568 A.2d 159 (1990), our Supreme Court adopted the standard of proof we enunciated in Thomas v. Workmen's Compensation Appeal Board (Atlantic Refining Co.), 55 Pa. Commw. 449, 423 A.2d 784 (1980). The claimant not only must prove that he suffered a mental injury, he also must show that the injury was caused by other than a subjective reaction to normal working conditions. Id. Working conditions must cause the mental injury, but the claimant bears the burden of proving that these working conditions were abnormal.
Reigle argues that this "heightened burden of proof," Waldo v. Workmen's Compensation Appeal Board (Erie Metropolitan Transit Authority), 136 Pa. Commw. 264, 266, 582 A.2d 1147, 1148 (1990), deprives him of equal protection of the law, because other types of injuries only require that a claimant prove a causal connection between his employment and injury.
Because Reigle does not claim that he is the victim of a distinction which disadvantages him as a member of a suspect class, his equal protection argument must be evaluated pursuant to the rational basis standard. See Fortson v. Crime Victim's Compensation Board, 98 Pa. Commw. 272, 512 A.2d 734 (1986), appeal denied, 513 Pa. 635, 520 A.2d 1386 (1987). Under this standard, his argument fails unless he establishes the absence of any rational basis to justify not employing the heightened burden of proof in this type of case.
In Martin, the Supreme Court explained its reason for using a heightened burden of proof, stating:
Abandoning the distinction between normal and abnormal working conditions, as the Appellant urges us to do, would eliminate the element of causation. It would destroy the fundamental principle underlying the scheme of the Workmen's Compensation Act — that, in order to be compensable, an injury must be work-related. Under the Appellant's theory, a claimant would have to establish only the employee suffered from a mental illness while employed and that the illness was a condition created or aggravated by that employee's perception of the conditions of his employment. That would reduce workmen's compensation benefits to nothing more than a disability or death benefit payable only because of the employee status of the claimant — and not because the injury was caused by his employment.
Id. 523 Pa. at 517-18, 568 A.2d at 165.
Although, at least in theory, one could debate the question of whether the Supreme Court's holding in Martin is correct as a matter of Pennsylvania workmen's compensation law, Justice Zappala's majority opinion clearly expresses a rational basis for its holding. Therefore, we can find no equal protection violation here.
See Waldo 136 Pa.Cmwlth. at 269 n. 6, 582 A.2d at 1150 n. 6.
Reigle also argues the wisdom of requiring proof of abnormal working conditions through objective testimony because courts have failed to recognize that psychiatric opinions themselves are subjective and what is "abnormal," is itself subjective. Reigle asserts that there is no method to determine what is abnormal to him.
In Supinski v. Workmen's Compensation Appeal Board (School District of Philadelphia), 133 Pa. Commw. 631, 577 A.2d 944 (1990), we held that a claimant cannot rely solely upon his own account of the working environment to meet the burden of showing that a psychiatric injury was not caused by a subjective reaction to normal working conditions. See also Andracki v. Workmen's Compensation Appeal Board (Allied Eastern States Maintenance), 96 Pa. Commw. 613, 508 A.2d 624 (1987). Normally a claimant's testimony of abnormal working conditions must be corroborated. Russella v. Workmen's Compensation Appeal Board (National Foam Systems, Inc.), 91 Pa. Commw. 471, 91 Pa. Commw. 471, 497 A.2d 290 (1985).
However, we distinguished the Russella line of cases in Archer v. Workmen's Compensation Appeal Board (General Motors), 138 Pa. Commw. 309, 587 A.2d 901 (1991), and did not require corroborative testimony in certain instances. In Archer, the testimony of the claimant was not limited to her belief that the working conditions were abnormal. The claimant testified as to actual events which the referee credited as being abnormal working conditions. The WCAB reversed because there was no corroborative testimony. We held that "[w]hile objective evidence may well be necessary where an employee is describing subjective feelings, no such evidence is necessary where actual events are being described." Id., 138 at 320, 587 A.2d at 907 (emphasis added).
Reigle neither introduced any testimony from co-workers which would demonstrate that he was subjected to abnormal working conditions nor did he testify to any events which the referee found rose to the level of abnormal working conditions. Therefore, the referee and the WCAB correctly applied our Supreme Court's holding in Martin in holding that Reigle failed to introduce sufficient evidence to meet his burden of proof. Reigle's argument that this burden should be reduced must be directed to the Supreme Court, because we are bound by Martin.
Reigle argues for the first time before us that the "abnormal" working condition requirement is not found in the Act. Because this issue was argued neither before the referee nor the WCAB, Reigle has waived this argument. DeMarco v. Jones Laughlin Steel Corp., 513 Pa. 526, 522 A.2d 26 (1987).
We affirm.
This decision was reached and opinion adopted before the conclusion of Judge BYER's service.
ORDER
We affirm the order of the Workmen's Compensation Appeal Board.