Safety and OSHA News

No workers’ comp because having gun held to your head is part of job?

State laws and court rulings have opened the door for workers’ comp benefits for psychological injuries such as post-traumatic stress disorder (PTSD). Despite that, this employer tried to deny benefits to an employee because being a victim of an armed robbery was part of the job.

Gregory Kochanowicz was the manager of a PA Liquor Control Board (LCB) store.

On April 28, 2008, an armed robbery occurred at his store while he was on duty.

A masked gunman approached him with a gun drawn. The gunman also showed Kochanowicz he had a second gun.

Kochanowicz was instructed, with a gun to his head, to remove money from the store safe and place it in a backpack.

The robber also told a store clerk to give him the money in her register and then to go outside to ensure no one was in front of the store.

All this time, the robber held the gun to the back of Kochanowicz’s head.

Kochanowicz and the clerk were both tied to chairs with duct tape. About five minutes after the robber fled, Kochanowicz freed himself from the chair and called police.

Kochanowicz had never been robbed at work during his 30 years with the PA LCB.

No one should be surprised that Kochanowicz sought psychological counseling. The former store manager says he thinks about the robbery almost every day and suffers from disrupted sleep, nightmares, anxiety, stress and difficulty relating to his family. He hasn’t been able to return to work since the incident.

His treating psychologist says Kochanowicz suffers from PTSD and couldn’t return to his pre-robbery job.

Kochanowicz filed for workers’ comp, but the LCB wanted to deny the claim. The reason?

‘Normal working condition’

Pennsylvania requires employees to prove they suffered a mental injury within the course and scope of their employment to receive workers’ comp benefits.

Once an employee does that, he also has to prove the mental injury he suffered is “other than a subjective reaction to normal working conditions.”

And that was the LCB’s argument. The employer didn’t contest that Kochanowicz had suffered from PTSD because of the armed robbery. But the LCB said being robbed while working at a retail liquor and wine store was a normal working condition.

The workers’ compensation judge (WCJ) who heard this case determined armed robbery was not a normal working condition and awarded Kochanowicz comp benefits. The LCB appealed to a state court.

In an attempt to prove its case, the LCB presented testimony from the coordinator of its Employee Assistance Program. The coordinator said:

  • Training was provided to Kochanowicz and other employees on workplace violence on two occasions
  • Kochanowicz received documents on workplace violence and a verbal update from a district manager about three months before the robbery
  • LCB employees are taught that violent events including robberies occur in stores and that all stores are at risk
  • There had been robberies in the area of Kochanowicz’s store, including at a donut shop and a hotel, and
  • Some LCB stores had hired security guards, but Kochanowicz’s store wasn’t provided with one.

In reviewing the previous decision, the court noted the WCJ had described the robbery in question in detail, concluding, “robbery by gunpoint to the back of the head is not a normal working condition.” So, the WCJ had based the award of benefits to Kochanowicz on the actual events that occurred and not on a finding that all robberies were abnormal.

The court also looked at the training given to Kochanowicz about workplace violence. Much of the training focused on workplace violence in general rather than on armed robberies specifically.

And when the training materials did reference armed robberies, it referred to them as infrequent occurrences.

The court also said it was pertinent that Kochanowicz never experienced a robbery in over 30 years as an LCB employee.

For those reasons the court upheld the WCJ’s findings. The specific robbery that Kochanowicz experienced wasn’t a normal working condition. Kochanowicz could receive workers’ comp benefits for his PTSD.

What do you think about the court’s decision? Let us know in the comments.

(PA Liquor Control Board v. Kochanowicz, Commonwealth Court of PA, No. 760 C.D. 2010, 12/30/14)

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Comments

  1. How about the names at the LCB that promoted this view that having a gun held to your head is a normal part of the job. People like this need to be exposed.

    • Will Simpson says:

      If the possibility of getting shot was part of his job, LCB is liable for not providing sufficient training and PPE: Bullet proof vest, helmet, shield, pepper spray, combat training, regular emergency training, adequate security measures etc… Give me a break!… even our police, firemen and combat servicemen are compensated for mental trauma if it affects their ability to continue making a living for their family.The guy should at least get free whisky for the rest of his life!

  2. Safety Mento says:

    I can see where the company was coming from, though lame. If you work in a liquor store chances are pretty good you will be robbed. I do believe that WC benefits should be awarded though. If you are a truck driver chances are pretty good that sooner or later you will be involved in an vehicle accident; if you are a nurse chances are pretty good you will be exposed to illnesses. That doesn’t mean that you should receive WC benefits. After all aren’t WC insurance payments based partly on the type of work you do and the exposures you are subjected to?

  3. If the employee had not been subjected to an armed robbery in 30 years, it can be held that being subjected to one would cause some trauma to the employee because it is an abnormal event. It may be argued that it was a “normal working event” if robberies had occurred much more frequently, say even every year. While adhering strictly to the letter of the law (or policy) that “at some point in your working experience with this store you may experience violence and it may be directed at you” is what the store is aiming for, whatever happened to caring for your employee? Especially a 30 year employee? I agree with the judge that this case should be compensable. If the robber had just waved the gun around, not pointing at a specific person, then I could see the company’s argument. However, the gun was held to HIS head, not anyone else’s, thereby making this an abnormal event. Let the employee (again, he’s worked for the company for an extraordinary length of time in that business) regain his health. Pay for his healthcare. It is due to him.

  4. goddess1012 says:

    This one is tough. PTSD is something that being used freely by the public, these days for almost everything. Being a sufferer of PTSD myself, I am not sure this case should have held up. Having a gun to your head, obviously, is not “normal” daily operation at any job; however, the person was informed and “trained” for such situations. So the person knew the risk they were taking. The legal definition of PTSD needs to be re-written, very, very carefully.

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