In Frog, Switch & Manufacturing Co. v. WCAB (Johnson), No. 149 C.D. 2014, Lindora Johnson was one of only two women and the only African-American female in a workforce of approximately 200 employees at the Frog Switch manganese steel castings manufacturing plant in Carlisle, Pennsylvania.
She claimed that she suffered repeated incidents of harassment at work during a five-month period in 2009, where her male colleagues made disparaging remarks about her gender, used a racial epithet in front of her and hung a noose inside an office where it was visible from the women’s locker room.
Johnson stopped going to work in September 2009 after she burst out crying in a meeting with management and a coworker who had complained she didn't operate her overhead crane safely.
A workers' compensation judge found Johnson had developed atypical depression as a result of her exposure to abnormal working conditions at her job. The judge awarded her TTD from Sept. 30, 2009, until April 19, 2010, when Johnson returned to work.
The WCJ's award was based on three separate medical evaluations who found that Johnson had, "job-related stress," that was suffering an emotional stress reaction, and that she had depression based on “her stressful and overwhelming work conditions.”
The WCJ did not find credible Johnson's coworkers testimony that the noose was a joke directed at a coworker who had said he was "going to hang himself" because of things that kept going wrong. The judge also gave weight to Johnson's testimony that her colleagues had used "the N-word" in her presence, had said females shouldn't be working at the foundry and warned each other not to work below her crane.
"It should be abundantly clear that any reasonable person, let alone a reasonable African-American female in an all-male and virtually all-white environment, would perceive references to the ‘(N-word),’ a noose, and comments about refusal to work under her crane, or that women don’t belong, as degrading and hostile," the judge opined.
A split Commonwealth Court found Johnson's medical evidence didn't establish an industrial cause for her distress.
The the record must contain unequivocal medical testimony to establish the causal connection between a psyche injury and employment for the injury to be compensable, the majority, in an opinion by Judge Anne Covey, said.
"Due to the highly subjective nature of mental injuries," she said, "an injury’s occurrence and cause must be specifically delineated" by the medical experts.
A claimant further bears the burden of proving that the psyche injury was "more than a subjective reaction to normal working conditions," Covey added. However, she said there was no reason to decide whether Johnson's injury was the result of an abnormal working condition since Johnson couldn't even prove her condition was work-related.
Two justices dissented, stating that the record was "replete with testimony from both sides that these reprehensible incidents did occur and that claimant became upset to the point where she lost control at work and left to see a doctor."
From the time Johnson first sought medical treatment for stress, she indicated that it was due to continual harassment at work based on her gender and race, Justice Bernard McGinley noted. Even though Johnson's care providers didn't specifically mention the "noose incident" and "the N-word" in their reports, McGinley argued that "the only reasonable inference to draw" was that these events were what the doctors were talking about.
The argument among experts interviewed for the WorkCompCentral story on the case opine that either the Commonwealth Court was engaging in inappropriate fact finding, or conversely, that they correctly noted there was no nexus linking the work incidents and Johnson's doctors conclusions in the various reports.
Maybe they're both right. Fact finding, which is the sole province of the trial judge, includes making ultimate findings of fact; i.e. factual conclusions. In this case, that there was a connection between work place harassment and the claimant's mental injury.
Likewise, though, there must be substantial evidence to support an award, and part of that is an expert's opinion on causation; while a physician may conclude that there was a mental injury related to the occupation the doctor should be connecting the dots with specific factual references in the report.
Unfortunately we don't know what happened after Johnson returned to work.
And so far there are no reports of rioting in Pennsylvania.