Francis X. Wickersham

The claimant, a corrections officer, alleged that she suffered a work-related psychological injury as a result of being sexually assaulted while in the course of employment. She filed a claim petition, seeking payment of benefits as of the date she began taking sick leave. The employer responded by filing two motions to dismiss, challenging the Workers’ Compensation Judge’s jurisdiction or authority over the matter, which the judge denied.

In connection with her petition, the claimant testified that a co-worker approached her from behind and proceeded to assault her against her will. The claimant and the co-worker had a prior sexual relationship. After the incident, the claimant texted the co-worker, saying, “You finally got what you were requesting, lol (laugh out loud).” Thereafter, the claimant texted the co-worker again about the negative effect the incident was having on her. Later, the claimant learned from another co-worker that the assailant co-worker was married to someone who also worked for the employer. The claimant texted the co-worker again, informing co-worker she should have put up more resistance but also noting the co-worker would not take no for an answer. The claimant then took a downward spiral, including becoming suicidal and spending time in a crisis center.

The claimant and the employer both presented testimony from psychiatric experts. A state trooper also testified, saying he interpreted the claimant’s responses to various questions asked of her to indicate that she was not sexually assaulted and was more upset that her assailant was married. The trooper’s interview was videotaped. The employer’s Equal Employment Opportunity director, who conducted an investigation of the incident, additionally testified and said that a conclusion could not be reached as to whether any consensual sex occurred. 

The Workers’ Compensation Judge granted the claim petition and, in doing so, cited all of the evidence reviewed, including the videotape of the trooper’s interview of the claimant, which, according to the judge, left no question that the claimant was a victim of a rape at work. The judge also made credibility findings regarding the other witnesses who testified and ultimately found that the claimant was raped by the co-worker and that the burden of proving a “mental/mental case,” by showing an abnormal working condition, had been met. 

The employer appealed to the Appeal Board, and the Board affirmed, rejecting the employer’s argument that the judge lacked the jurisdiction to decide whether the claimant was raped and, by so finding, had violated the criminal due process rights of the co-worker. 

The employer appealed to the Commonwealth Court, raising the same lack of jurisdiction argument they raised before the Board, noting the Board admitted that the judge made a determination that a criminal act occurred. The court rejected this argument and dismissed the employer’s appeal. 

The Commonwealth Court noted that the Act extends to all work injuries occurring within the Commonwealth, including those where the evidence implicates criminal conduct. The court said that, although evidence may implicate criminal conduct, this does not limit the authority of the Workers’ Compensation Judge or the Appeal Board to determine that a compensable, work-related injury occurred. In the court’s view, the judge’s findings did not constitute a legal determination that the co-worker criminally raped or sexually assaulted the claimant. Rather, the judge made credibility determinations and found there was substantial evidence that the claimant was subjected to non-consensual, sexual intercourse at work, which is an abnormal working condition, and that she sustained a resulting psychological injury that was not a subjective reaction to a normal working condition.  
 

_{What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2022 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}