Harassing comments of a homosexual nature

Pennsylvania Supreme Court Reports

RAG EMERALD RESOURCES, L.P. v. WORKERS’ COMP, 1 WAP 2005
(Pa. 1-11-2007) Rag (Cyprus) Emerald Resources, L.P. v.
Workers’ Compensation Appeal Board (HOPTON). No. 1 WAP
2005. Supreme Court of Pennsylvania, Western District.
Argued: September 13, 2005. Decided: January 11, 2007.

Appeal from the Order of the Commonwealth Court entered May
25, 2004 at No. 2215 CD 2002, reversing the Order of the
Workers’ Compensation, Appeal Board entered August 28,
2002, at No. A01-1304.

850 A.2d 833 (Pa.Cmwlth. 2004)

Appeal of: Ronald A. Hopton.

CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN, BAER,
JJ.

OPINION

MR. JUSTICE BAER.[fn1]

[fn1] This case was reassigned to this author.

We granted allowance of appeal in this workers’
compensation case to decide whether the Commonwealth Court
erred or abused its discretion in reversing the Workers’
Compensation Appeal Board’s (WCAB) decision affirming the
Workers’ Compensation Judge’s (WCJ) conclusion that
Appellant Ronald A. Hopton (Claimant) was entitled to
workers’ compensation benefits pursuant to the Workers’
Compensation Act[fn2] as a result of an alleged aggravation
of his pre-existing post-traumatic stress disorder (PTSD).
We hold that the WCAB’s and WCJ’s decisions were proper and
consequently reverse the Commonwealth Court’s order.

On April 12, 1996, Claimant filed a claim petition against
Appellee RAG (Cyprus) Emerald Resources (Employer) seeking
various benefits for a disabling psychological injury that
he suffered in July 1994.[fn3] Claimant further alleged
that this injury occurred because he “was subject[ed] to
harassing comments of a homosexual nature by the employees
[sic] mine foreman, Dominic Rossi, on three occasions from
July 6 to 13, 1994.” Claim Petition, Supplemental Reproduced
Record at 1 (hereinafter Supp. R.R.). Employer subsequently
filed an Answer to Claimant’s petition, asserting that
Claimant was not entitled to benefits because his
psychological injuries pre-dated his employment with
Employer.

During hearings before a WCJ, Claimant testified that he
had served in the United States Army between 1964 and 1967.
He was stationed in Germany until 1966, when he was sent to
Vietnam. In Vietnam, he was subjected to at least one
sniper attack and observed several violent incidents, such
as soldiers and children dying in front of him. Supp. R.R.
at 86-87b, 315-16b. Claimant also explained that he
witnessed frequent homosexual activity amongst his fellow
soldiers in both Germany and Vietnam and that he was
horrified by what he saw. Id. at 88-96b. Moreover, Claimant
relayed that his commanding officer in Vietnam had asked
him to engage in homosexual activity in exchange for
“amenities.” Id. at 94b. This event so disturbed Claimant
that he attempted to shoot his commanding officer, but
stopped when his commanding officer placed his own gun to
Claimant’s head. Id.

When Claimant returned from Vietnam in 1967, he experienced
flashbacks from his experiences there. In 1975, he started
working for the Buckley Coal Mine and, in 1978, began
employment in Employer’s mine. Claimant worked for Employer
without significant problems until July 1994. According to
Claimant, he became disabled at that time as a result of
three incidents involving Employer’s mine foreman, Dominic
Rossi.[fn4] The first incident occurred on July 6, 1994,
when Claimant was working in the mine. According to
Claimant, after he refused Mr. Rossi’s request to get into
a jeep with him and another co-worker, Allen Vozel, Mr.
Rossi told him “you have a nice butt, a real nice looking
butt, come on up here and sit down next to me.” Id. at
133b. Claimant testified that he told Mr. Rossi to stop
making such comments, but Mr. Rossi continued until
Claimant finally walked away. At that point, Claimant was
“shaking inside” and had “a great desire to go over there
and take [Mr. Rossi] out.” Id. at 134b.

Mr. Vozel also testified regarding the above incident and
asserted that during his twenty years as a miner he had
never heard comments like those made by Mr. Rossi to
Claimant and although the employees often joked around with
one another, they would generally stop when asked. Id. at
207-09b, 211b.

The second incident with Mr. Rossi occurred on July 8, two
days later. According to Claimant, he got in a jeep with
Mr. Rossi and Joe Ross to get a battery for his mining
light. During the drive, Mr. Rossi made comments to
Claimant implying that he wanted to have anal sex with him.
Claimant asked Mr. Rossi to stop and said, “a statement like
. . . this could be a two-headed sword for you, [Rossi],
and it’s going to be a lot of blood on you and it’s not
going to be me.” Id. at 136b. Mr. Rossi replied by stating
“well, you like it rough and bloody, and I like it rough
and bloody, too. Come on, sit over here next to me. You sure
got a nice pair of legs and a nice butt.” Id. As a result
of these comments, Claimant testified that he felt “a great
deal of shame and humiliation” as well as extraordinary
pain. Id. at 137b, 138-39b. Furthermore, he experienced
flashbacks to the incident in Vietnam when he was
propositioned by his commanding officer. Id. at 137-38b (“I
kept looking at him, and I would see the [commanding
officer], and I would see Rossi. Sort of like the
Commanding Officer Rossi, Rossi the Commanding Officer. It
was getting confusing as to who I was seeing. And all along
he was talking, and I can hear him talk. And inside of
myself, I started closing up. . . .”).

At trial, Mr. Ross confirmed the details of the incident
alleged by Claimant. Id. at 67b-68b. According to Mr. Ross,
Claimant did not respond to Mr. Rossi’s comments and
eventually exited the jeep. At that point, Mr. Ross
questioned Mr. Rossi concerning his sexual orientation and
Mr. Rossi responded that he was not homosexual and had only
been joking with Claimant. Id. at 69b. Mr. Ross
additionally testified that he has never heard workers in
the mines talk in the way that Mr. Rossi had talked to
Claimant, although he admitted to hearing comments such as
“blow me.” Id. at 69b, 73b, 78b.

The last incident with Mr. Rossi occurred on July 13, 1994.
Claimant testified that he went to Mr. Rossi’s office early
in the morning to determine his work assignment. Mr. Rossi
was speaking with Terry Rafferty and told Claimant to come
into his office. Mr. Rossi then said to Mr. Rafferty, “Boy,
doesn’t [Claimant] have a nice pair of legs.” Id. at 144b.
Claimant told Mr. Rossi to “stop it” and Mr. Rossi
responded by insinuating that Claimant was a male
prostitute, stating “Oh, I know what it is, how about would
$5 do, would $5 do.” Id. According to Claimant, following
this incident, he wanted to kill Mr. Rossi and had more
flashbacks of his experiences in Vietnam. Id. at 146-47b.
Moreover, although he worked on July 13 and 14, he did not
return to work thereafter because he was “falling apart” and
having flashbacks “all over the place.” Id. at 147-48b.
Claimant further testified that no one in the mines had
ever spoken to him in the way that Mr. Rossi had during the
above three incidents. Id. at 99-100b, 192-93b.

With regard to this third incident, Employer presented
testimony from Mr. Rafferty who confirmed that Mr. Rossi
had stated that Claimant had nice legs and that Claimant
had told Mr. Rossi to stop it. However, Mr. Rafferty also
testified that Mr. Rossi said nothing further after
Claimant told him to stop. Mr. Rafferty additionally
testified that off-color comments regarding anal sex were
often made in the mines. For example, if an employee were
lying on the ground, another employee might jump on him
“like he’s screwing him and that kind of stuff.” Id. at
267b. Moreover, according to Mr. Rafferty, this type of
behavior happened “all the time” and occurred between union
employees and management. Id.

Mr. Rossi also testified on behalf of Employer. During his
testimony, Mr. Rossi conceded that he had said “[s]omething
like great butt” to Claimant on July 6, 1994. Id. at 329b.
Mr. Rossi further acknowledged that two days after the
above incident, he saw Claimant again and told him “he
ought to be butt-[f_____]” for standing in the dark without
his helmet light on. Id. at 335b. According to Mr. Rossi,
nothing else was said after he made the above comments and
Claimant did not appear to be angered by them. With regard
to the third incident on July 13, Mr. Rossi stated that
Claimant did come by his office that morning while he was
talking with Mr. Rafferty, but that he said nothing to
Claimant at that time.

While Mr. Rossi denied or downplayed the three incidents
complained of by Claimant, he confirmed that Employer had
disciplined him for his comments to Claimant and that his
comments violated the United Mine Workers contract, which
prohibits sexual harassment. Id. at 342b, 346b. In an
affidavit that he completed several months after the above
incidents, Mr. Rossi affirmed that he had spoken to Claimant
on July 6 and 8 in ways that he “normally would not have.”
Specifically, Mr. Rossi admitted he was not merely
“kidding” with Claimant when he made the comments on July
8, but rather was fueled by anger at Claimant after
Claimant carelessly ignored mining safety regulations by
failing to utilize a properly-working miner’s light. Id. at
349b.

In addition to the above testimony, the parties presented
expert medical evidence regarding Claimant’s injuries and
their causes. Claimant presented testimony from two of his
treating physicians, each of whom opined with reasonable
degrees of medical certainty that Claimant developed PTSD
following his experiences in Vietnam, and that Mr. Rossi’s
comments between July 6 and July 13, 1994 aggravated this
condition, causing Claimant to become disabled. See id. at
628-30b (testimony of Herbert Thomas, M.D.); id. at
725-26b, 761-62b (testimony of Greenbrier Almond, M.D.). A
court-appointed doctor also testified that Mr. Rossi’s
comments were a substantial contributing factor to
Claimant’s PTSD because they aggravated the condition, which
until then had been under control. See id. at 1100b,
1212b-13b, 1236b (testimony of Chester M. Berschling,
M.D.); see also Letter from Dr. Berschling to WCJ Bloom,
3/24/1999, at 5 (“It is my professional opinion that
[Claimant’s] experiences in the mines in July 1994 greatly
aggravated his underlying [PTSD]”). In contrast to the
above testimony, Employer’s medical expert testified that
Claimant suffered from paranoid personality disorder, not
PTSD. See id. at 501-02b, 512b, 889-90b (testimony of Lawson
Bernstein, M.D.). He further opined that Mr. Rossi’s
comments neither caused nor aggravated Claimant’s
psychological problems. See id. at 890b, 918-19b.

The WCJ made several findings of fact regarding the
above-described events and the medical testimony. While not
expressly stating which evidence he found credible, the WCJ
concluded that Mr. Rossi made the statements attributed to
him by Claimant, Mr. Ross, Mr. Vozel, and even Mr. Rossi,
to the extent that he admitted making several of the
comments in question. The WCJ also documented in its
findings of fact the testimony of Mr. Vozel and Mr. Ross
that Mr. Rossi’s comments were not normal occurrences in
the mine, while still acknowledging Mr. Vozel’s testimony
that a lesser level of jovial antics was common in the
mines. Additionally, the WCJ credited the expert medical
testimony of Claimant’s physicians who stated that
Claimant’s PTSD was aggravated by the work environment in
the mine, specifically by the behavior of Mr. Rossi. WCJ
Slip Op. at 7.

Based on these findings of fact, the WCJ concluded as a
matter of law that Mr. Rossi’s comments to Claimant
constituted of abnormal working conditions.[fn5] WCJ Slip
Op. at 10. Apparently deeming credible the testimony
favoring Claimant, the WCJ emphasized that 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” to
Claimant. Id. Thus, the WCJ held that Claimant was entitled
to benefits because he had established that he was disabled
as a result of abnormal working conditions, as required by
Martin v. Ketchum, Inc., 568 A.2d 159, 164 (Pa. 1990).

The Board subsequently affirmed, finding sufficient
evidence to support the WCJ’s conclusion that Mr. Rossi’s
comments created abnormal working conditions. The Board
pointed out that several of Claimant’s co-workers had
testified that “the sexually explicit homosexual comments
made by Mr. Rossi to Claimant went beyond those accepted in
the mines and were previously unheard of.” WCAB’s Op., at
6. The Board further held that Mr. Rossi’s comments were
clearly unacceptable because Employer had disciplined Mr.
Rossi for making them. Id. Based on the WCJ’s findings of
fact, the Board agreed with the WCJ that Claimant had
established the existence of abnormal working conditions and
that such conditions aggravated his PTSD. Id. at 12.

Employer appealed to the Commonwealth Court, which reversed
the Board’s order. See RAG (Cyprus) Emerald Resources, LP
v. WCAB (Hopton), 850 A.2d 833 (Pa.Cmwlth. 2004).[fn6] The
Commonwealth Court determined that the “evidence fails to
support a finding of abnormal working conditions in the
present controversy.” Id. at 839. As support for this legal
conclusion, the Commonwealth Court first stated that
“Claimant had an injured psyche and was predisposed to
mental problems.” Id. at 839.

Second, the Commonwealth 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 WCJ’s numerous
findings of fact based on the testimony that these
statements were unusual in the mine. The Commonwealth Court
quoted a brief segment of testimony wherein Mr. Ross
responded to the WCJ’s inquiry into the regularity of such
language:

JUDGE BLOOM: My point is . . . you joke, you kid around
and say, blow me, [sic] asshole and it’s accepted. What’s
the difference between those terms and what Mr. Rossi said
to Hoppy [Claimant]? Is there any difference?

A. [Mr. Ross]: I guess not.

Id. at 839, n. 11. The Commonwealth Court additionally noted
that Claimant, at one point in the mines, jokingly told his
co-workers that he dated a transvestite. Id.

Finally, the Commonwealth Court additionally concluded that
Mr. Rossi’s comments were not frequent enough to constitute
abnormal working conditions because they occurred only
three times “over an eight-day period during Claimant’s
sixteen-year mining career with Employer.” Id. Based on
these three findings, the Commonwealth Court determined
that Claimant failed to establish the requisite abnormal
working condition and, accordingly, was not entitled to
benefits.

Judge Friedman filed a dissenting opinion, joined by Judge
Leavitt, stating that the “majority’s holding is contrary
to case law and . . . ignores the credibility
determinations and findings of fact made by the [WCJ].” Id.
at 840 (Friedman, J., dissenting). Judge Friedman opined
that the majority improperly based its conclusion that
Claimant’s injury did not result from abnormal working
conditions on the fact that he had a pre-existing mental
condition. Judge Friedman asserted that Claimant’s
pre-existing mental condition should not bar his right to
receive benefits, emphasizing that this Court has never
held that a pre-existing condition or a predisposition to
mental illness is a factor in the Martin analysis. Id. at
843 (citing City of Pittsburgh v. Logan, 810 A.2d 1185 (Pa.
2002)). Indeed, Judge Friedman noted, the Commonwealth
Court has repeatedly approved of benefit awards to claimants
who have established that abnormal working conditions
aggravated pre-existing mental injuries. Id. (citing Zink
v. WCAB (Graphic Packaging, Inc.), 828 A.2d 456 (Pa.Cmwlth.
2003) (en banc), appeal denied, 860 A.2d 126 (Pa. 2004),
Kane v. WCAB (Williamsport Automotive), 528 A.2d 302
(Pa.Cmwlth. 1987), Hirschberg v. WCAB (Dep’t of Transp.),
474 A.2d 82 (Pa.Cmwlth. 1984)).[fn7] Judge Friedman also
disagreed with the majority’s conclusion that the evidence
did not support the conclusion that Mr. Rossi’s comments
created abnormal working conditions. According to Judge
Friedman, the majority exceeded its standard of review by
overruling the WCJ’s finding of fact that Mr. Rossi’s
comments were unusual as there was substantial evidence in
the record to support that finding. Finally, Judge Friedman
disagreed with the majority’s finding that Mr. Rossi’s
comments were not frequent enough to constitute abnormal
working conditions, explaining that “[a]lthough a single
isolated incident of offensive behavior does not constitute
an abnormal working condition, repetitive harassment by a
superior over a period of time does constitute an abnormal
working condition.” Id. at 844 (emphasis in original).

Claimant subsequently filed a petition for allowance of
appeal with this Court, and we granted review to consider
whether the Commonwealth Court erred in concluding that
Claimant was not entitled to benefits. Claimant asserts
that the Commonwealth Court abused its discretion in
usurping the function of the fact-finder by reweighing the
evidence presented before the WCJ and in failing to follow
its own precedent in Zink, wherein the Commonwealth Court
recognized the aggravation of a pre-existing mental
condition to be a cognizable claim under the Act.

In response, Employer asserts that it was within the
Commonwealth Court’s purview to consider the record
independently and make its own determinations of abnormal
working conditions. Moreover, Employer maintains that the
Commonwealth Court correctly determined that Claimant’s
aggravation was a non-compensable, subjective reaction of a
fragile individual to normal working conditions. Contrary to
Claimant’s allegations, Employer asserts that the present
situation is factually distinguishable from Zink because
here, unlike in Zink, Employer had no notice of Claimant’s
pre-existing condition.

“In workers’ compensation appeals, this Court must affirm
the adjudication below unless we find that an error of law
was committed, that constitutional rights were violated,
that a practice or procedure of a Commonwealth agency was
not followed or that any necessary finding of fact is not
supported by substantial evidence of record.” Daniels v.
WCAB (Tristate Transp.), 828 A.2d 1043, 1046 (Pa. 2003);
see 2 Pa.C.S. § 704. Under Martin v. Ketchum, Inc.,
568 A.2d 159, 164 (Pa. 1990), a claimant will be entitled
to compensation for a psychic-psychic injury if he can
demonstrate that the injury resulted from abnormal working
conditions, not merely the result of a subjective reaction
to normal working conditions. As previously discussed supra
note 5, we have recognized that the Martin analysis requires
a fact-sensitive inquiry into the specific employment
situation, requiring our deference to the factual findings
of the WCJ, or on certain occasions the factual findings of
the WCAB, who have the benefit of observing the witnesses.
See Davis, 751 A.2d at 479. Accordingly, we will overturn
the factual findings only if they are unsupported,
arbitrary, or capricious. Id. at 473. Conversely, the
determination of whether those factual findings establish
abnormal working conditions under Martin is a question of
law, fully reviewable on appeal. Id. Consequently, our
review of the present case requires, pursuant to this
standard, a two-prong examination. First, we must decide
whether the Commonwealth Court abused its discretion by
substituting its factual findings for those made by the WCJ
and supported by the record, and second, whether the
findings of fact support the legal conclusion that
Claimant’s injury was the result of an abnormal working
condition.

Turning to the first step in the review, we conclude that
the Commonwealth Court abused its discretion by not
limiting its review to determining whether the WCJ’s
factual findings were supported by the record and, instead,
focusing on a brief section of testimony not included in
the WCJ’s factual findings to support its own conclusion
that Rossi’s comments were “normal in the mining industry.”
Id. at 839. The court failed even to mention the relevant
factual findings of the WCJ detailing the testimony of
Claimant’s co-workers distinguishing Rossi’s comments from
the “normal” conditions of the mine:

9. Alan Vozel testified that there is some joking and
horseplay in the mines but that when someone would ask
that it be stopped, it would be stopped. The exception in
[sic] the incidents between Rossi and the claimant when
Rossi refused to stop and continued to the aggravation of
the claimant. Joe Ross testified that he had never heard
anyone being spoken to as Rossi had done to the claimant
and that references to anal sexual relations were
uncommon. He testified that the comments from Rossi to the
claimant were beyond the normal scope of joking at the
mines.

10. Joe Plachta, co-worker of the claimant, testified
that the types of comments that the claimant was subject
to from Rossi were uncommon and that Plachta had never
been talked to in this fashion. He also testified that
the comments made by Rossi were beyond the scope of the
normal everyday horseplay.

WCJ Slip Op. at 7 (emphasis added). As described in the
factual recitation of this opinion, supra at pages 3-5,
these findings are supported by the notes of testimony of
the relevant mine workers, and are neither arbitrary nor
capricious.[fn8] See Davis, 751 A.2d at 473. While at least
one co-worker testified that comments of this type were
common, the WCJ, who had the benefit of viewing the
witnesses, was within his discretion to rely upon the
testimony of the several who testified that Rossi’s
comments went beyond the normal joking and horseplay
present in the mine, rather than the one, who disagreed.
Accordingly, we conclude that the Commonwealth Court failed
to review properly the factual findings of the trial court.

Given that the Commonwealth Court’s decision was based on
a misapprehension of the relevant facts, we need not
consider its application of those facts to the legal
question before us. Instead, we independently consider
whether the facts as found by the WCJ establish Claimant’s
right to compensation pursuant to Martin v. Ketchum, 568
A.2d 159 (Pa. 1990). Accordingly, we must determine whether
the aggravation of Claimant’s PTSD resulted from “abnormal
working conditions.” Id.

A brief review of the development of our case law
regarding compensable psychic injuries provides a necessary
backdrop to our consideration of this question. In 1972,
the General Assembly altered the definition of the term
“injury” from one requiring “violence to the physical
structure of the body” to “an injury to an employee,
regardless of his previous physical condition, arising in
the course of his employment and related thereto.” 77 P.S.
§ 411. As a result of this amendment, this Court
held that mental illness, which prior to the 1972 Amendment
was not cognizable under the Act, could be a compensable
injury. Martin, 568 A.2d 159.[fn9]

This Court, however recognized the inherent difficulty in
establishing causation in psychic injury cases, because
such maladies are intrinsically subjective. Consequently,
we recognized the need to “distinguish psychiatric injuries
that are compensable because the necessary causal
relationship between the employment and mental disability
has been established from those psychiatric injuries that
arise from the employee’s subjective reactions to normal
working conditions.” Id. at 164. Thus, in contrast to
physical injuries, which merely require that the injury
arise in the course of employment, we held that a claimant
seeking benefits for a psychic injury must meet a higher
standard for causation by proving that (1) he suffered a
psychic injury and (2) his psychic injury was more than a
subjective reaction to normal working conditions, i.e., his
working conditions were “abnormal.” See Panyko, 888 A.2d at
730, Martin, 568 A.2d at 165.

In classifying working conditions as normal or abnormal, we
do not employ a bright line test or a generalized standard,
but instead, consider 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. See
Wilson, 669 A.2d at 343. Consequently, we deny compensation
for injuries resulting from events that are expected in the
relevant working environment, whether it is an office
worker’s change in job title or responsibility, see id. at
344, or a police officer’s involvement in life-threatening
situations, see Davis, 751 A.2d 168. Additionally, we do
not expect employers to provide emotionally sanitized
working conditions. “In assessing whether work conditions
are abnormal, we must recognize that the work environment
is a microcosm of society. It is not a shelter from rude
behavior, obscene language, incivility, or stress.”
Philadelphia Newspapers, Inc. v. W.C.A.B. (Guaracino), 675
A.2d 1213, 1219 (Pa. 1996).

In the case at bar, the WCJ followed our dictates and
considered what was normal for the mine. After
painstakingly detailing the testimony of long-time miners
distinguishing Rossi’s comments from the normal horseplay
occurring in the mine, the WCJ concluded that the
statements were “more than mere uncivil, crude, joking
behavior,” but were evidence of “a course of conduct on the
part of a supervisory employee clearly calculated to cause
severe emotional distress.” WCJ Slip Op. at 10. We agree.

This case involves a series of sexually harassing comments
by a supervisor that, as Rossi acknowledged, violated the
United Mine Worker’s contract, resulting in disciplinary
action by the employer, and arguably constitutes criminal
harassment. We thus agree with the WCJ’s legal conclusion
that Claimant established that Rossi’s comments constituted
abnormal working conditions. Accordingly, because the WCJ
credited the medical testimony establishing a causal link
between the statements and the aggravation of Claimant
pre-existing PTSD, we conclude that Claimant has
established a compensable injury.

In so concluding, we necessarily reject two of the
Commonwealth Court’s bases for denying compensation. First,
the Commonwealth Court stated, “the medical evidence
established Claimant had an injured psyche and was
predisposed to mental problems.” Hopton, 850 A.2d at 839.
The Commonwealth Court failed to provide any reason for
treating claimants with pre-existing mental injuries
differently from claimants with pre-existing physical
injuries. While we apply an elevated standard of proof
relating to the causal element of workers’ compensation
benefits in psychic injury cases, we have never barred
otherwise deserving claimants from recovery due solely to
their pre-existing condition. Under our caselaw, in
worker’s compensation, as in tort law, “an employer [takes]
an employee as he comes.” Pawlosky v. WCAB, 525 A.2d 1204
(Pa. 1987) (holding that job-related aggravation of a
pre-existing disease may be an injury under the Act, even
if the disease is not an occupational disease). A claimant
with a pre-existing injury, whether mental or physical, is
entitled to benefits so long as he shows that his injury
has been aggravated, reactivated, or accelerated by a
working condition to the point of disability. Id. at 1209.
If a claimant is able to satisfy the test set forth in
Martin, the pre-existing nature of the injury does not
disqualify him from receipt of compensation. Thus, to the
extent that the Commonwealth Court relied on the
pre-existing nature of Claimant’s mental injury to justify
reversing the lower tribunals’ decisions, it erred.

Moreover, we reject the Commonwealth Court’s reliance on
this Court’s decision in Philadelphia Newspapers, Inc. v.
WCAB (Guaracino), 675 A.2d 1213, 1218 (Pa. 1996), to
support its conclusion that Mr. Rossi’s comments were too
infrequent to constitute abnormal working conditions.
Hopton, 850 A.2d at 839. Guaracino involved a newspaper
delivery driver who suffered psychological distress
following a single incident of criticism by his supervisor,
who used vulgar language and arguably menacing behaviors in
reprimanding the employee for losing a bundle of
newspapers. While the language and the situation were
undeniably unpleasant, there was no testimony that the
supervisor’s behavior deviated from normal disciplinary
conduct in that employment context. Id. at 1218. In
contrast, this case involves a series of similar comments,
which testimony demonstrated to be unusual in the mine that
did not show any sign of ending or decreasing in intensity
or frequency.[fn10]

While any one of Rossi’s comments may or may not have been
enough to create an abnormal working environment in
isolation, the WCJ was within his discretion factually, and
correct in application of the facts to the legal construct,
when he determined that Rossi’s comments “demonstrate a
course of conduct by a supervisory employee clearly
calculated to cause severe emotional distress.” WCJ Slip
Op. at 10.

Accordingly, we reverse the Commonwealth Court’s order,
which reversed the WCJ’s award of benefits to Claimant, and
remand for reinstatement of the WCJ’s order.

Mr. Chief Justice Cappy, and Messrs. Justice Castille,
Saylor and Eakin join the opinion.

Former Justices Nigro and Newman did not participate in the
decision of this case.