In Pennsylvania, mental injuries such as depression, anxiety or other psychiatric diagnoses are compensable if Claimant can establish they are caused by abnormal working conditions. Considering the recent attention brought to sexual harassment in the workplace through the #Me Too and #Time’s Up movements, it is a good time to remind Employers and Carriers that so called mental-mental Workers’ Compensation claims for sexual harassment are considered compensable under the Pa. Workers’ Compensation Act.
The two cases that ruled that sexual harassment resulting in psychiatric injuries were compensable are RAG (Cypress Emerald Resources, LP) v. WCAB (Hopton), 912 A2d. 1278 (Pa. 2007) and Community Empowerment Associates v. WCAB (Porch), 962 A2d. 1 (Pa. Commonwealth 2008). Harassment by third parties who come into contact with an employee as a result of their employment duties can also be compensable under the Act. M & B Partners, Inc. v. WCAB (Petriga), 940 A2d. 1255 (Pa. Commonwealth 2008).
Generally speaking, to establish a mental-mental injury claim and abnormal working conditions, Claimant needs some corroborating evidence. Therefore, complaints to Human Resources by Claimant, and the investigation of any sexual harassment complaint, would highly likely to be discoverable by Claimant and introduced into evidence to establish corroboration of Claimant’s testimony concerning the alleged harassment.
As to defenses, a common defense in these situations would be to assert that the sexual harassment was of a personal nature, that it was directed by the harasser for personal reasons and not arising out of the workplace. Based on the holdings in Hopton and Porch the so called personal animus exception would appear to be only applicable to those cases where the alleged sexual harassment happens outside the workplace, say in a relationship between two employees.
Of course, from an employer’s standpoint, the interplay between sexual harassment claims made under the PA Workers’ Compensation Act and lawsuits filed by the harassed employee against the employer bring up the question of the employer immunity defense (exclusive remedy) to civil matters. If the sexual harassment is compensable under the Act, the lawsuit against the employer for the same actions, and the same injuries suffered, would most likely be dismissed on the grounds of the exclusive remedy defense.
However, that doctrine would not preclude Claimant from suing the employer for any violations of Federal or State civil rights or sexual discrimination laws, and also may allow for causes of action alleging employer negligence for things such as improper training and improper investigation, and failure to act against a known harasser.
Because of the interrelationship between the sexual harassment injury claim under the Workers’ Compensation Act and the potential for other causes of action being brought against the Employer under Federal anti-discrimination laws, Pennsylvania Human Relations Commission law, or local discrimination laws, as well as the relationship between asserting a personal animus defense versus asserting the exclusive remedy defense under the Act, great care must be taken by the Employer, the Workers’ Compensation insurance carrier, and Workers’ Compensation defense counsel to coordinate activities on such claims. Circumstances can exist where the Insurance carrier and the Employer may have contradictory goals and strategies. Involvement with the Employer’s HR department and legal counsel to make sure these claims are defended properly and that all competing interests are accounted for is recommended.