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Sexually harassed miner due comp

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HARRISBURG, Pa.—Repeated sexually harassing comments made by a supervisor to a miner already suffering post-traumatic stress disorder constitute "abnormal working conditions" that qualify the miner for workers compensation benefits, the Pennsylvania Supreme Court has ruled.

The unanimous Jan. 11 decision overturned a lower court ruling that had concluded the comments made to Ronald A. Hopton were normal in the "rough and tumble" mining industry.

According to the ruling in RAG (Cyprus) Emerald Resources L.P. vs. Workers' Compensation Appeal Board, Mr. Hopton suffered from PTSD because of his experiences as a U.S. soldier, including a solicitation for homosexual sex from his commanding officer in Vietnam. When he returned from Vietnam in 1967, he experienced flashbacks from his experiences there.

Mr. Hopton said he became disabled as a result of three incidents involving sexually harassing comments allegedly made by his mine supervisor, Dominic Rossi, including one in which Mr. Rossi said Mr. Hopton had a "real nice looking butt."

A workers comp judge ruled "the incidents in question were not normal joking or merely uncivil behavior, but rather constituted a 'course of conduct' that was 'clearly calculated to cause severe emotional distress,"' according to the high court's opinion.

The judge also found that Mr. Rossi's comments constituted "abnormal working conditions," and that Mr. Hopton established he was disabled as a result of them and thus was entitled to benefits. The Workers' Compensation Appeals Board affirmed the decision.

Subsequently, though, a state court "determined that Mr. Rossi's comments did not create abnormal working conditions because the evidence revealed that those comments, while 'crude and unacceptable' were nevertheless 'normal' in the 'rough and tumble' mining industry, disregarding the (workers comp judge's) numerous findings of fact based on the testimony that these statements were unusual in the mines," the Pennsylvania high court said.

The state Supreme Court said the lower court "abused its discretion by not limiting its review to determining whether (the workers comp judge's) factual findings were supported by the record and, instead, focusing on a brief section of testimony not included in the (judge's) factual findings to support its own conclusion that Rossi's comments were 'normal in the mining industry."'

In classifying work conditions, the court said it considers "the specific work environment of the claimant, for we recognize that what may be normal for a police officer will not be normal for an office worker." In this case, the workers comp judge "followed our dictates and considered what was normal for the mine" in its ruling, the state Supreme court ruled.

The court said the workers comp judge correctly determined that Mr. Hopton established that Mr. Rossi's comments constituted the required "abnormal working conditions" to receive benefits.

Patrick Vitullo, a plaintiff workers compensation attorney with Plymouth Meeting, Pa.-based Clemens & Vitullo P.C., said to be awarded workers comp benefits under Pennsylvania law, the plaintiff must establish there was "objective evidence" of these abnormal conditions, not just a "subjective impression."

The court concluded there was sufficient evidence of abnormal working conditions in Mr. Hopton's case, "which I believe most people would agree is the right decision," said Mr. Vitullo.

Andrew E. Greenberg, a defense attorney with Chartwell Law Offices L.L.P. in Norristown, Pa., said the decision stresses the importance of the workers comp judge's "role as the ultimate fact finder" in these cases.

It is also a reminder that when a supervisor "undertakes to cause severe emotional distress to a subordinate," it can create abnormal working conditions, Mr. Greenberg said.

RAG (Cyprus) Emerald Resources L.P. vs. Workers Compensation Appeal Board (Hopton), appeal of: Ronald A. Hopton, Supreme Court of Pennsylvania, No. 1 WAP 2005, Jan. 11, 2007.