         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Weis Markets, Inc.,                  :
                  Petitioner         :
                                     :
            v.                       : No. 1628 C.D. 2016
                                     : SUBMITTED: January 20, 2017
Workers’ Compensation Appeal         :
Board (Roman),                       :
                Respondent           :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE HEARTHWAY                     FILED: March 31, 2017


            Weis Markets, Inc. (Employer), petitions for review of the September
7, 2016 order of the Workers’ Compensation Appeal Board (Board), which
affirmed the decision of a workers’ compensation judge (WCJ) following a remand
order issued by the Board. The WCJ granted James Roman’s (Claimant) petition
to review compensation benefits (Review Petition) and his petition to review
medical treatment and/or billing (Medical Petition), and denied Employer’s
petition to terminate and/or suspend (Termination/Suspension Petition) Claimant’s
workers’ compensation benefits. We affirm.
             Since 2009, Claimant worked for Employer as an assistant store
manager. On December 20, 2011, Claimant slipped while working in the meat
department and sustained a work-related injury to his left knee. Employer, in a
temporary notice of compensation payable (TNCP), recognized the injury as a left
knee strain/sprain. The TNCP later converted to a notice of compensation payable
(NCP). Since that time, Claimant had surgery on both knees.


             Prior to the work-related injury, Claimant suffered from mild chronic
depression. Claimant treated with his family physician, who prescribed Citropram.
Claimant was able to work full-time, was never hospitalized for depression, and
was able to engage in hobbies and activities with his family.


             After the work-related injury, Claimant was hospitalized on three
occasions for depression, has undergone numerous courses of electric shock
therapy, and his medications have increased to include Seroquel, Prozac, and
Trazodone. Claimant is considered a high risk of suicide and his depression is
characterized as life threatening.


             On June 21, 2012, Employer filed a Termination/Suspension Petition
alleging that as of May 29, 2012, Claimant had fully recovered from the work-
related injury and work was available on June 11, 2012 at Claimant’s pre-injury
wage. On June 22, 2012, Claimant filed a Review Petition seeking to amend the
description in the NCP to include a right knee injury. On December 26, 2012,
Claimant filed a Review Petition and Medical Petition seeking to have the injury
description modified to include major depressive disorder, post-traumatic stress


                                         2
disorder, and anxiety disorder. Claimant also requested Employer pay medical
bills related to the right knee and psychological injuries.


              On November 14, 2013, the WCJ granted Claimant’s petitions and
amended the injury description to include a complex tear in the posterior horn of
the medial meniscus of the right knee and exacerbation or worsening of major
depression recurrent and chronic pain syndrome. The WCJ denied Employer’s
Termination/Suspension Petition. Employer appealed to the Board.


              On October 16, 2014, the Board remanded the matter to the WCJ to
consider all competent evidence of record in making its determination. On May
19, 2015, the WCJ denied Employer’s Termination/Suspension Petition and
granted Claimant’s Review and Medical Petitions. The WCJ further amended the
NCP to include the left knee injury of a complex tear in the posterior horn of the
medial meniscus and a radial tear in the lateral meniscus, the right knee injury of a
complex tear in the posterior horn of the medial meniscus, and the exacerbation or
worsening of major depression recurrent and chronic pain syndrome. Employer
appealed to the Board, which affirmed. Employer now petitions this Court for
review.1




       1
         Our review is limited to determining whether constitutional rights were violated,
whether the adjudication is in accordance with the law and whether the necessary findings of fact
are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.
C.S. §704. Employer only seeks review with regard to the addition of the psychological injury to
the NCP. It does not contest the addition of the right-knee injury.



                                               3
               Initially, we note that depending on the facts of a particular case, one
of two different standards is used to determine whether a claimant’s mental
disability is compensable under the Workers’ Compensation Act (Act).2                    If a
claimant’s mental disability is caused by a work-related physical injury, the
physical/mental standard applies.          Murphy v. Workers’ Compensation Appeal
Board (Ace Check Cashing, Inc.), 110 A.3d 227, 234-35 (Pa. Cmwlth. 2015).
Under the physical/mental standard, a claimant may be eligible for benefits under
the Act if the claimant establishes “that the mental injury resulted from a triggering
physical stimulus [that] arose during the course of employment.” Id. at 234. The
claimant is not required to establish a physical disability, only an injury, and the
injury does not need to continue during the life of the mental injury. Id. If a
claimant’s mental disability is caused by a psychological stimulus, the
mental/mental standard should be applied. Id. at 235. Under the mental/mental
standard, a claimant may be eligible for benefits under the Act if the claimant
establishes that the mental injury is the result of abnormal working conditions. Id.


               Employer contends that the Board erred as a matter of law in
affirming the WCJ’s determination that the mental injury should be analyzed under
the physical/mental injury standard.            Specifically, Employer argues that the
worsening of Claimant’s depression was not caused by the knee injury and repair,
but arose from his long-standing social and family pressures with the addition of
financial issues, his subjective reaction to being classified as a non-active
employee, and the loss of eligibility for Employer’s health care coverage.

      2
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 – 1041.4, 2501-2708.



                                                4
                When a claimant seeks to amend a NCP pursuant to section 413 of the
Act,3 he has the burden of proving that his disability “has increased and that the
original work-related injury caused the amending disability.” Huddy v. Workers’
Compensation Appeal Board (U.S. Air), 905 A.2d 589, 592 (Pa. Cmwlth. 2006). A
claimant who files a petition seeking to amend the original NCP to include a
mental disability must prove a causal relationship between the work-related injury
and the subsequent psychiatric injury. Commercial Credit Claims v. Workmen’s
Compensation Appeal Board (Lancaster), 728 A.2d 902, 906 (Pa. 1999); see also
Ryan v. Workm[e]n’s Compensation Appeal Board (Community Health Services),
707 A.2d 1130, 1133-34 (Pa. 1998). Where the connection between the work
incident and the injury is not obvious, a claimant must prove by unequivocal
medical evidence that the work incident caused the injury. Jeannette District
Memorial Hospital v. Workmen’s Compensation Appeal Board (Mesich), 668 A.2d
249, 251 (Pa. Cmwlth. 1995). Where medical testimony is needed to establish the
causal connection, the medical witness must testify that, in his professional
opinion, the injury came from the work incident.                         Lewis v. Workmen’s
Compensation Appeal Board, 498 A.2d 800, 802 (Pa. 1985).




      3
          Section 413 of the Act, 77 P.S. §772, provides in pertinent part:

                        A [WCJ] designated by the department may, at any time,
                modify, reinstate, suspend, or terminate a [NCP] . . . upon petition
                filed by either party with the department, upon proof that the
                disability of an injured employe has increased, decreased, recurred
                or has temporarily or finally ceased. . . . Such modification . . .
                shall be made as of the date upon which it is shown that the
                disability of the injured employe has increased. . . .


                                                 5
              Here, Claimant suffered a physical injury to his left and right knee,
both of which required surgery. Claimant testified that he is in constant pain due
to his knee injuries. Dr. Fischbein testified that Claimant suffers “from a major
depression recurrent that had been longstanding but was of less severity prior to his
work injury. . . . Since the accident. . . he had an exacerbation or worsening of his
major depression recurrent.” (Dr. Fischbein’s Depo., at 37-38.) Dr. Fischbein
further testified that Claimant also “suffers from a chronic pain syndrome where he
has chronic pain in both lower extremities. . . . The chronic pain syndrome is
secondary to his work injury of 12/20/11 and the poor outcome on the surgeries
and rehabilitation to try to address those injuries.” (Id. at 38.) Dr. Fischbein
opined that Claimant’s

              major depression recurrent preexisted this event in
              question but clearly was exacerbated and made much
              worse and more difficult to manage as a result of the
              injury of 12/20/11, and [] the chronic pain syndrome for
              the most part would be directly related. He did not suffer
              from a chronic pain syndrome prior to the injury in
              question.

(Id. at 38-39.) The WCJ found Dr. Fischbein and Claimant credible.4 Thus, the
WCJ’s findings of fact were supported by substantial evidence because Claimant
did produce evidence of a causal relationship between the work-related injury and
the subsequent psychiatric injury with expert medical testimony. See Commercial
Credit Claims, 728 A.2d at 906; and Ryan, 707 A.2d at 1133-34. For these



       4
         The WCJ is the ultimate fact finder and credibility determinations are for the WCJ and
not this Court. Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap), 2 A.3d
689, 698 (Pa. Cmwlth. 2010), rev’d, 81 A.3d 830 (Pa. 2013).


                                              6
reasons, we hold that the physical/mental standard is applicable here and the WCJ
was correct in applying such.


            Next, Employer contends that the Board erred in affirming the WCJ’s
determination because the WCJ’s finding that Claimant suffered an additional
injury in the nature of a mental disorder was not supported by substantial
competent evidence.     As stated above, Dr. Fischbein testified that Claimant
suffered an exacerbation of his depressive disorder caused by the work injury and
the WCJ found such testimony credible. Thus, this finding was supported by
substantial competent evidence.


            Finally, Employer contends that the WCJ’s finding that Claimant’s
left knee injury was the physical stimulus for the disabling depression disorder is
not supported by substantial competent evidence. Again, the credited testimony of
Dr. Fischbein supports the WCJ’s finding that Claimant’s exacerbation of his
depressive disorder was caused by his injuries of December 20, 2011.

            Accordingly, we affirm.



                                      __________________________________
                                      JULIA K. HEARTHWAY, Judge




                                        7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Weis Markets, Inc.,                 :
                  Petitioner        :
                                    :
            v.                      : No. 1628 C.D. 2016
                                    :
Workers' Compensation Appeal        :
Board (Roman),                      :
                Respondent          :


                                  ORDER


            AND NOW, this 31st day of March, 2017, the order of the Workers’
Compensation Appeal Board in the above-captioned matter is affirmed.




                                    __________________________________
                                    JULIA K. HEARTHWAY, Judge
