The Pennsylvania Superior Court has ruled that a psychiatric facility is not liable for negligence in a case where one of its counselors was sexually assaulted by a patient.

A three-judge panel consisting of Judges Jack Panella and Eugene Strassburger, along with Senior Judge James Gardner Colins, affirmed the trial court's granting of judgment on the pleadings in favor of defendant Carelink Community Support Services in plaintiff Michelle Grabowski's lawsuit.

Grabowski had previously been awarded $75,000 in workers' compensation benefits and received an additional $40,000 from the defendant as part of a compromise and release agreement, according Colins' precedential March 9 opinion. Later, she filed a negligence suit against the company on the basis that it was negligent and liable under the Workers' Compensation Act's third-party attack and personal attack exceptions.

Carelink argued that the burden of proof as to whether the exception applied was on the plaintiff, and she could not do so because the workers' compensation benefits proceedings bar the action. The Superior Court agreed.

While passive receipt of workers' compensation benefits does not necessarily bar a negligence claim, Colins said, "Where, however, there [is a] final adjudication in a workers' compensation proceeding that the injury is covered by the WCA, the employee is estopped from claiming that the personal animus/third party attack exception applies."

"This estoppel applies not only where there is an adjudication of a workers' compensation claim petition filed by the tort plaintiff," Colins said, "but also where a workers' compensation decision is issued in proceedings on other types of petitions and the employee is represented by counsel in those proceedings."

And in this case, the plaintiff did not just passively receive workers' compensation benefits, Colins said.

"Plaintiff also affirmatively sought and obtained $40,000 in additional benefits through the C&R agreement based on the position that the attack was a work injury and that agreement was approved by a WCJ adjudication," Colins said. "A petition to terminate plaintiff's workers' compensation benefits and a petition to suspend her benefits had been filed by employer and were pending at the time that plaintiff entered into the C&R agreement. The C&R agreement gave plaintiff benefits that she would not receive if the termination petition or suspension petition was granted and that she could not receive if the attack was excluded from WCA coverage by the personal animus/third party attack exception."

But even if the lawsuit hadn't been barred by estoppel, Colins continued, it would have failed on the merits.

Grabowski had cited two Superior Court cases—Krasevic v. Goodwill Industries of Central Pennsylvania and Schweitzer v. Rockwell International—along with the U.S. District Court for the Eastern District of Pennsylvania's ruling in Pryor v. Mercy Catholic Medical Center to bolster her argument that sexual attacks could not be considered work-related.

But Colins disagreed with that premise.

"None of these cases hold that sexual assaults are necessarily excluded from WCA coverage or that a sudden assault by a non-employee with whom the plaintiff was required to interact in the performance of her job falls within the personal animus/third party attack exception," Colins said. "Rather, Krasevic, Schweitzer, and Pryor all involved sexual conduct by co-workers that either involve a pattern of behavior directed specifically at the plaintiff or some evidence that the attacker had a personal fixation on the plaintiff."

Colins said that in order for her claims to fall under the personal animus/third-party attack exception to the WCA, Grabowski was required to show not just that the attack on her was intentional but that it was motivated by purely personal reasons and not related to her work.

"Plaintiff's complaint averred that she was attacked in the performance of her job duties by a patient with whom she was required to work and that the attack was sudden and for no known reason," Colins said.

Grabowski is represented by Joseph Cappelli of Marc J. Bern & Partners in Conshohocken, who did not respond to a request for comment.

Joan Daly of Marks, O'Neill, O'Brien, Doherty & Kelly represents Carelink.

"We were obviously pleased with the court's ruling and based on the law and the record which was established in the lower court it was the proper decision," she said.