IN THE COMMONWEALTH COURT OF PENNSYLVANIA Delmer L. Morris, : Petitioner : : v. : No. 1172 C.D. 2014 : Submitted: January 16, 2015 Workers Compensation Appeal : Board (Ball Corp. and Sedgick : CMS, Inc.) : Respondents : BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: June 11, 2015 Delmer L. Morris (Claimant) petitions for review of an adjudication of the Workers Compensation Appeal Board (Board) that reversed the decision of the Workers Compensation Judge (WCJ) to grant Claimant compensation. The Board did so because it concluded that Claimant did not give his employer proper notice of his physical work injury and did not prove that his psychological injury was caused by abnormal working conditions. For the reasons that follow, we affirm in part and reverse in part. Background Claimant worked as an electrician for Ball Corporation (Employer). On April 13, 2011, Claimant suffered a panic attack and left work. He has not returned.
In September 2011, Claimant filed a claim petition alleging that his job duties caused a physical injury to his back and a psychological injury that included anxiety and panic attacks. Claimant sought total disability benefits as of April 14, 2011, and payment of his medical bills. Employer filed a timely answer denying the allegations. The matter was assigned to a WCJ who held hearings. Both parties appeared and presented evidence. Claimant testified about his work with Employer, which manufactures three-piece aerosol cans in a plant with 22 electronic production lines. Claimant was responsible for the electrical maintenance of the equipment. The job required him to stand for long periods, lift up to 50 pounds and work in cramped spaces, which sometimes required him to be almost a contortionist by bending, twisting, kneeling, crawling, sitting and reaching. Reproduced Record at 41a (R.R. ). Claimant testified that when he began working for Employer in April 2008, his health was good. Initially, he worked with other electricians, but in 2009, he began working by himself in 12-hour shifts anywhere from 36 to 60 hours per week. 1 At that point, Claimant began to develop low back and leg problems that progressively worsened. Specifically, standing for a long time caused painful tingling in his leg; sitting for a long time made it difficult to stand straight; and kneeling at length made it difficult to get up. Claimant attributed these physical problems to his repetitive work activities and not to a particular incident. When Claimant began working for Employer, there were five electricians. By August 2010, there were four electricians on shift. On January 11, 1 Claimant worked a rotating schedule of three 12-hour days one week, four 12-hour days the next and five 12-hour days the next. His schedule was governed by Employer s collective bargaining agreement with the union. 2
2011, Claimant had a panic attack at work, for which his doctor prescribed psychotropic medication. In February 2011, an electrician went on medical leave, leaving three electricians. Claimant s schedule changed to 8-hour shifts Monday through Friday and 10-hour shifts on Saturday and Sunday, for a total of 60 hours per week. Claimant testified that he would work 19 days in a row and then had off for a weekend. In March 2011, Employer moved Claimant from the day shift to the 3:00 p.m. to 11:00 p.m. shift. Claimant testified about the events of April 13, 2011, his last day of work. Upon his arrival, the assembly manager informed Claimant there was a problem with production line six, which prompted Claimant to feel pressured. Claimant got the part needed for the repair and headed back to line six, his anxiety increasing. Claimant made the repair, but his hands were shaking the entire time. When Claimant got the laptop computer to do the settings for line six, he completely lost it. R.R. 338a. He did not know what was happening, his breathing was shallow and he was stuttering. A co-worker helped him load the settings into line six and start the production line. Claimant then heard a report of a problem with line one. Claimant called his fiancée and told her he was having a panic attack and asked her to make an appointment with his doctor. Claimant next went to see his supervisor, Jonathan Bejuki. Claimant was still stuttering, shaking and breathing shallow and was, in his own words, a basket-case at that point. R.R. 52a. After calming himself with a breathing technique, Claimant talked to Bejuki. Claimant told Bejuki that he was beaten down and hurting [p]hysically and mentally and that he was taking medication for panic attacks. R.R. 340a. Bejuki did not respond or ask if Claimant needed medical help. 3
Claimant then went to help a co-worker with a different problem, during which he was tense and apprehensive. Bejuki then paged Claimant and asked if any of his medications had warnings about being around machinery. When Claimant responded affirmatively, Bejuki stated, I m going to send you home, Larry. Come back tomorrow, and we ll start fresh. R.R. 341a. Claimant never returned. Claimant explained that he saw his family doctor the next day about the panic attack. He did not mention back problems to his doctor at that time because he was focused on his mental state, not physical pain. R.R. 61a. Claimant testified that his back problems and his anxiety and panic attacks prevent him from doing his regular job, although he believed he could work 40 hours a week on day shift. On April 18, 2011, Claimant went to Employer s human resources department to pick up the paperwork for a leave of absence. Claimant met with Bejuki and Steve O Connell, Employer s human resources manager. Claimant testified that he told them that he was physically and mentally beaten down, and having problems with his back and legs because of the number of hours he was working. R.R. 54a. O Connell gave Claimant papers to fill out. When he got home, he discovered that the papers related to non-work-related disability benefits, not workers compensation benefits, as he expected. Claimant tried to contact Bejuki, but he did not respond. Claimant completed the forms and collected sickness and accident benefits until September 1, 2011. Claimant submitted the medical deposition of David Weiss, D.O., an orthopedic specialist, who began treating Claimant on October 13, 2011, for stiffness and pain in his low back and pain and numbness in his right leg. Claimant 4
told Dr. Weiss that his repetitive work duties involved kneeling, crawling, bending and heavy lifting. A September 2011 MRI showed osteoarthritis of Claimant s spine, disc desiccation, facet joint arthritis, foraminal narrowing, and disc herniations at L4-5 and L5-S1. 2 Dr. Weiss ordered an EMG, and it showed a rightsided lumbar radiculopathy. Based on Claimant s history, the MRI and EMG results and physical examination, Dr. Weiss diagnosed Claimant with cumulative repetitive trauma disorder, occupational low back syndrome, aggravation of pre-existing osteoarthritis and degenerative disc disease, disc herniations and radiculopathy. Dr. Weiss has treated Claimant conservatively with physical therapy and medication. Epidural blocks or surgery may be done in the future. Dr. Weiss opined that Claimant s back disables him from performing his pre-injury electrician job. Claimant could do sedentary or possibly light-duty work. Claimant also submitted the deposition testimony of Sherri Landes, Ph.D., a psychologist who first saw Claimant on October 11, 2011. Dr. Landes diagnosed Claimant with a generalized anxiety disorder with panic attacks, a condition marked by sleep disturbance, shakiness, dazing off into space, feeling lost and feeling overwhelmed. Dr. Landes opined that Claimant s psychological condition was caused by his work with Employer, stating as follows: [T]he cause [of Claimant s anxiety disorder with panic attacks] was the mounting stress in his work environment, the work schedule, the mandatory hours, and the physical pain that he experienced as a result of trying to do his job. 2 Claimant had received some medical treatment through the Veterans Administration before seeing Dr. Weiss. 5
R.R. 158a; Notes of Testimony at 24 (N.T. ). Dr. Landes explained that Claimant s psychological condition was based on his subjective reaction to perceived work events. R.R. 160a; N.T. 31-32. Dr. Landes noted that Claimant takes psychotropic medication and opined that Claimant requires ongoing psychotherapy to treat his anxiety and self-esteem issues, which have developed because of his inability to work. Dr. Landes testified that Claimant has improved but continues to have anxiety problems. Dr. Landes would not allow Claimant to return to the same work schedule with Employer but thought that he could do some work. Employer presented the deposition testimony of L. Richard Trabulsi, M.D., a board certified orthopedic surgeon who did an independent medical examination of Claimant on December 21, 2011. Dr. Trabulsi diagnosed Claimant with advanced degenerative disc disease of the lumbar spine from L3 to S1. Dr. Trabulsi disagreed with Dr. Weiss opinion that Claimant has a herniated disc. Dr. Trabulsi opined that Claimant s condition was neither caused nor aggravated by his work activities, noting that Claimant did not seek treatment for his back until several months after he left work. Employer also presented the deposition testimony of Wolfram Rieger, M.D., a board certified psychiatrist who performed an independent psychiatric evaluation of Claimant on January 25, 2012. Dr. Rieger diagnosed Claimant with a panic disorder that was not work-related, noting that Claimant did not identify the triggers for his anxiety and panic other than talking vaguely about work stress. R.R. 400a; N.T. 20. Dr. Rieger opined that Claimant simply reacted to normal work demands in a highly subjective, idiosyncratic fashion and that Claimant was not disabled from a psychiatric standpoint. R.R. 402a; N.T. 28. In 6
fact, Claimant told Dr. Rieger that he would be willing to return to work for Employer if he could be limited to 40 hours per week on day shift. Employer presented the deposition testimony of Steve O Connell, who explained that Claimant worked the same schedule as the rest of the electricians, as set forth in the union contract. It was normal for Employer to have three or four electricians on staff and there was nothing unusual about the electricians workload in the months leading up to April 13, 2011. O Connell testified that two electricians were actually working more hours and days than Claimant. O Connell stated that he was not aware Claimant was alleging a work injury until he filed the claim petition in September 2011. The WCJ accepted as credible the testimony of Claimant about his physical and psychological problems, and that he notified Bejuki and O Connell of his work injury. The WCJ rejected O Connell s testimony as not credible where it conflicted with Claimant s testimony. The WCJ credited the testimony of Dr. Weiss and Dr. Landes over that of Dr. Trabulsi and Dr. Rieger. 3 The WCJ found that on April 13, 2011, Claimant sustained physical work injuries including cumulative repetitive trauma disorder, occupational low back syndrome and aggravation of pre-existing lumbar degenerative disc disease, and a psychological work injury described as an aggravation or worsening of his generalized anxiety disorder with panic attacks. The WCJ found that Employer had notice of the injuries and that Claimant was disabled as of April 14, 2011. Accordingly, the WCJ granted the claim petition and awarded ongoing total disability benefits. 3 The WCJ has complete authority over questions of credibility, conflicting medical evidence and evidentiary weight. Sherrod v. Workmen s Compensation Appeal Board (Thoroughgood, Inc.), 666 A.2d 383, 385 (Pa. Cmwlth. 1995). 7
Employer appealed, and the Board reversed. The Board determined that Claimant s physical work injury was not compensable because Claimant did not give Employer the notice required by the Workers Compensation Act 4 (Act). The Board also determined that the WCJ erred in granting the claim for a psychological injury because Claimant did not establish that it was caused by abnormal working conditions. Claimant then petitioned for this Court s review. 5 On appeal, Claimant argues that the Board erred in denying his claim petition for two principal reasons. 6 First, Claimant asserts that he provided Employer with the statutorily required notice of his physical work injury. Second, Claimant argues that the Board erred in concluding that he was required to show abnormal working conditions in order to prevail on his psychological injury claim. I. In his first issue, Claimant argues that the Board erred in holding that he did not give Employer notice of his physical work injury. 7 Claimant contends that his conversations with Bejuki and O Connell satisfied the Act s notice requirements. 4 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. 1-1041.4, 2501-2708. 5 This Court s review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or an error of law was committed. Cytemp Specialty Steel v. Workers Compensation Appeal Board (Crisman), 39 A.3d 1028, 1033 n.6 (Pa. Cmwlth. 2012). Substantial evidence has been defined as such relevant evidence that a reasonable mind might accept as adequate to support a finding. Mrs. Smith s Frozen Foods Company v. Workmen s Compensation Appeal Board (Clouser), 539 A.2d 11, 14 (Pa. Cmwlth. 1988). 6 Claimant lists four separate issues, but they encompass two main issues. 7 The Board did not conclude that Claimant failed to provide adequate notice of his psychological injury. Therefore, we address only notice of the physical work injury. 8
Section 311 of the Act requires a claimant to inform his employer of a work injury within 120 days of its occurrence. It states, in relevant part, as follows: Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his behalf, or some of the dependents or someone in their behalf, shall give notice thereof to the employer within twenty-one days after the injury, no compensation shall be due until such notice be given, and, unless such notice be given within one hundred and twenty days after the occurrence of the injury, no compensation shall be allowed. 77 P.S. 631. Section 312 of the Act enumerates what information must be included in the notice. It states: The notice referred to in section 311 shall inform the employer that a certain employe received an injury, described in ordinary language, in the course of his employment on or about a specified time, at or near a place specified. 77 P.S. 632 (internal footnote omitted). In Gentex Corporation v. Workers Compensation Appeal Board (Morack), 23 A.3d 528 (Pa. 2011), the Pennsylvania Supreme Court considered the degree of specificity required by Section 312. It held that notice need not be letter perfect in order to satisfy Section 312. Id. at 535. The claimant need only describe an injury in ordinary language, taking into consideration the context and setting of the injury. Id. at 537. Further, the claimant is not required to give notice in a single conversation; notice may be provided through a series of communications. Id. Whether notice is adequate is a mixed question of fact and law. Id. at 534. However, because the issue is heavily fact-intensive, our Supreme Court has instructed that a reviewing court should give significant deference to a 9
determination by the WCJ regarding adequate notice. Id. at 534 n.10. Once the claimant satisfies Section 312 of the Act, the employer s duty to promptly investigate each injury reported or known to the employer imposed by Section 406.1(a) of the Act, 77 P.S. 717.1(a), is triggered. 8 In Gentex, 23 A.3d 528, the claimant worked as a helmet inspector for 40 years. In 2003, her inspection duties increased and she began working more hours in order to complete her work. She developed pain and swelling in her hands. In January 2005, she informed her supervisor that she had to leave work because she could no longer tolerate the pain in her hands. When her doctor diagnosed her with repetitive trauma injuries, including tendonitis and carpal tunnel syndrome attributable to her work duties, the claimant called and left a message telling her employer that she had work-related problems. Id. at 537. The Supreme Court concluded that the claimant s statement to her supervisor that she had hand pain at work coupled with the subsequent message reporting workrelated problems was sufficient to fulfill Section 312 s notice requirement and trigger the employer s statutory obligation to further investigate. Id. at 537-38. 9 In this case, Claimant testified that he said to Bejuki on April 13, 2011, I m beaten down. Physically and mentally, I m hurt. I m hurting here. 8 Section 406.1 was added by the Act of February 8, 1972, P.L. 25. It states, in relevant part: (a) The employer and insurer shall promptly investigate each injury reported or known to the employer and shall proceed promptly to commence the payment of compensation due on forms prescribed by the department and furnished by the insurer. 77 P.S. 717.1(a). 9 See also Workmen s Compensation Appeal Board v. Potomac Edison of Pennsylvania, 350 A.2d 914, 916 (Pa. Cmwlth. 1976) (meter reader claimant s statement to her supervisor that she felt a pain in her neck as she was getting out of her truck satisfied the statutory notice requirement). 10
R.R. 340a. Claimant also testified that when he spoke with Bejuki and O Connell on April 18, 2011, about taking a leave from work, I told them that I was physically and mentally beaten down, from [m]y back, to my hands, to my legs nothing worked. I said to them, this is because of all these hours that I m working, this is work related[.] R.R. 54a. Claimant testified that talking to Bejuki and O Connell about the cause of his problems was like I was talking to a deaf ear. R.R. 360a. fact regarding notice: The WCJ found Claimant credible and made the following findings of The Claimant s testimony is particularly credible as to his work activities, their nature and hours worked and a Finding of Fact [is made that] when he left work on April 13, 2011 he was having the upsets he testified to, as well as physical problems with his lower back and indicated he told Jonathan Bejuki on April 13, 2011 he had physical and psychological problems and was beaten down and Jonathan did not address or inquire if the Claimant needed medical help or assistance. The Claimant s testimony is particularly credible and a Finding of Fact [is made that] on April 18, 2011 he went to the Employer s Human Resource Department[,] met with Steve O Connell and Jon Bejuki[,] received paperwork from the Employer (Ball Corporation) and indicated during the visit that he was physically and mentally beaten down, from his back to his hands and legs because of all these hours that I m working, this is work-related. WCJ Decision, July 2, 2012, at 20; Finding of Fact No. 11. Claimant argues that these findings are supported by substantial evidence and support the WCJ s conclusion that Claimant complied with the notice requirements in Section 312. He argues that the Board capriciously reweighed the evidence in reversing the WCJ on notice. Employer rejoins that the Board 11
properly decided the case based on the legal insufficiency of Claimant s evidence. 10 The Board focused on Claimant s testimony that he told Employer, both on April 13 th and April 18 th, that he was physically and mentally beaten down. Board Adjudication at 9. The Board concluded that this was insufficient to fulfill the Act s notice requirement. In doing so, the Board ignored other portions of Claimant s testimony as well as the WCJ s findings. Claimant testified that he told his supervisor, Bejuki, that he was hurting physically on April 13, 2011. R.R. 340a. Then on April 18, 2011, Claimant told Bejuki and O Connell that he was physically beaten down, citing his back and leg problems. Claimant specifically stated that this is because of all these hours that I m working, this is work related[.] R.R. 54a. The WCJ credited all this testimony. The WCJ is the ultimate fact finder and has complete authority over questions of credibility. Davis v. Workers Compensation Appeal Board (City of Philadelphia), 753 A.2d 905, 909 (Pa. Cmwlth. 2000). Claimant s reports are similar to those made by the claimant in Gentex, who reported pain and work-related problems in two separate communications with her employer. Claimant has a repetitive trauma injury involving his back, which he described as being beaten down and as having problems with his back and legs that are work related. Based on the evidence credited, the WCJ correctly concluded that Claimant provided adequate notice of 10 Employer also argues that Claimant s receipt of sickness and accident benefits, which he could receive only for a non-work-related condition, required a reversal of the WCJ s decision as a matter of law. However, there is nothing preventing a claimant who receives sickness and accident benefits from filing a claim petition and proving that the injury was actually workrelated. 12
his physical work injury under Section 312. Bejuki and O Connell were obligated under the Act to investigate after receiving notice by at least asking follow-up questions, but they did not comply with this duty. Section 406.1(a) of the Act, 77 P.S. 717.1(a). The Board, therefore, erred in reversing the grant of the claim for a disabling physical work injury. 11 II. With respect to Claimant s psychological injury, the WCJ found that on April 13, 2011, Claimant suffered an aggravation of generalized anxiety disorder with panic attacks. In doing so, the WCJ credited the testimony of Claimant and Dr. Landes but did not address whether Claimant s psychological injury was attributable to abnormal working conditions. The Board reversed after concluding that Claimant was required to show abnormal working conditions but did not. Claimant argues that the Board erred, explaining that he presented a mixed claim where both a physical injury and a stressful work environment caused his psychological injury. Claimant contends that because this is not purely a mental/mental claim, he was not required to prove that his psychological injury 11 Employer argues that even if Claimant met the notice requirement, this Court should affirm the Board s order because Claimant failed to establish a physical work injury through competent medical evidence. Employer asserts that Dr. Weiss opinion that Claimant aggravated his symptoms is not supported because Dr. Weiss failed to demonstrate Claimant s baseline condition from which a magnification could be determined. We disagree. A claimant who has asymptomatic degenerative spinal changes has no reason to visit a doctor and have radiographic tests performed that show the baseline condition, nor is it necessary under the Act to do so. Here, Claimant s baseline was established by his pre-employment physical and his testimony that he was in good health and not in pain when he started working for Employer in 2008. Claimant s credible history was a sufficient basis for Dr. Weiss to opine that Claimant s degenerative condition was made symptomatic by his work activities and ultimately disabled him. 13
was the result of abnormal working conditions. Rather, Claimant urges that the claim should be analyzed under the physical/mental standard. by our Supreme Court: Psychological injuries are divided into three categories as described (1) the mental/physical injury where a psychological stimulus causes a physical injury; (2) the physical/mental injury where a physical stimulus causes a psychic injury; and, (3) the mental/mental injury where a psychological stimulus causes a psychic injury. Ryan v. Workmen s Compensation Appeal Board (Community Health Services), 707 A.2d 1130, 1133-34 (Pa. 1998) (internal footnotes and citation omitted). Where work-related stress results in a psychological injury, the mental/mental standard applies. Volterano v. Workmen s Compensation Appeal Board (Traveler s Insurance Company and Allied Corporation), 639 A.2d 453, 458 (Pa. 1994). The degree of proof required in a mental/mental claim is high. Selkow v. Workmen s Compensation Appeal Board (Anchor Davis-Jay Box Co.), 662 A.2d 31, 34 (Pa. Cmwlth. 1995). The claimant must prove that the workrelated stress is caused by actual objective abnormal working conditions, as opposed to subjective, perceived, or imagined employment events. Volterano, 639 A.2d at 458. In a physical/mental case, the claimant must prove that a physical work injury requiring medical treatment caused a psychological injury. Murphy v. Workers Compensation Appeal Board (Ace Check Cashing Inc.), 110 A.3d 227, 237 (Pa. Cmwlth. 2015). The claimant is not required to show abnormal working conditions in a physical/mental case. Anderson v. Workers Compensation Appeal Board (Washington Greene Alternative), 862 A.2d 678, 683 (Pa. Cmwlth. 2004). 14
Based on the record, we reject Claimant s argument that he presented a physical/mental claim. The WCJ found that Claimant s psychological injury occurred on his last day of work, April 13, 2011. Claimant testified that he had a panic attack because of stress at work, staffing issues, his work hours and feeling overwhelmed. Claimant described feeling increasingly anxious as he performed his duties. However, Claimant did not attribute his panic attack to physical pain; he did not mention pain in his testimony. Claimant himself divorced his physical injury from his psychological state, testifying that when he stopped working, I wasn t even thinking about the pain. I was trying to think about what was going on with my mind, why I was crumbling. R.R. 61a. Dr. Landes explained that Claimant s psychological injury was caused by mounting stress in his work environment, the work schedule, the mandatory hours, and the physical pain that he experienced as a result of trying to do his job. R.R. 158a; N.T. 24. Dr. Landes listed pain as one factor but without specifying the role physical pain played. Claimant cites no authority for the proposition that if one factor, of several, in a psychological injury is pain from a physical work injury, then only the physical/mental standard should apply. Treatise authority explains that in physical/mental claims, the substantial contributing factor test applies when there is more than one causative agent in the injury or disability acknowledged. 6 DAVID B. TORREY & ANDREW E. GREENBERG, WORKERS COMPENSATION LAW AND PRACTICE 4:21 (3d ed. 2008). Because Claimant s evidence showed that mental stimuli by and large caused his psychological injury, the Board did not err in determining that Claimant was required to establish abnormal working conditions in order to prevail on his psychological injury claim 15
and reversing that portion of the WCJ s order granting the psychological injury claim. 12 Claimant contends, alternatively, that Employer waived the issue of abnormal working conditions by failing to raise it before the Board. Employer responds that it properly preserved the issue. Section 111.11(a)(2) of the Board s regulations requires the party appealing a WCJ s decision and order to provide the Board with an appeal form containing a statement of the particular grounds upon which the appeal is based. 34 Pa. Code 111.11(a)(2). The regulation further cautions that [g]eneral allegations which do not specifically bring to the attention of the Board the issues decided are insufficient. Id. Issues not properly raised on appeal to the Board are waived. Williams v. Workmen s Compensation Appeal Board (Green Construction Co.), 687 A.2d 428, 430 (Pa. Cmwlth. 1997). In its appeal form, Employer listed, by number, all findings of fact and conclusions of law it challenged. Employer appealed Finding of Fact 12, where the WCJ credited Dr. Landes over Dr. Rieger, and Finding of Fact 15, where the WCJ found that Claimant s work caused a psychological injury. Employer also appealed Conclusion of Law 1, where the WCJ concluded that Claimant met his burden of establishing a work-related psychological injury. Employer also 12 We note that Claimant does not argue that he was subjected to abnormal working conditions. Claimant described general work stress caused by his duties, schedule and hours. These types of things do not amount to abnormal working conditions. Hershey Chocolate Co. v. Workmen s Compensation Appeal Board (Lasher), 682 A.2d 1257 (Pa. 1996). Further, Dr. Landes agreed with Dr. Rieger that Claimant s psychological injury resulted from his own subjective reaction to perceived work events. Such a psychological injury is not compensable under the Act. See Martin v. Ketchum, Inc., 568 A.2d 159, 164-65 (Pa. 1990) (psychological injury caused by the claimant s subjective reaction to and perception of normal working conditions is not compensable). 16
included on the appeal form a written statement of the reason for its appeal which stated that Claimant failed to meet his burden of proving he sustained a mental injury. R.R. 468a. We reject Claimant s assertion that Employer s appeal to the Board did not preserve the issue of whether Claimant suffered a work-related psychological injury. The fact that Employer did not use the words abnormal working conditions on its appeal form is of no moment. In a claim petition, the claimant has the burden to establish all elements necessary to support an award. Selkow, 662 A.2d at 34. In a mental/mental claim, the claimant must prove that he sustained a psychological injury that is other than a subjective reaction to normal working conditions, i.e., is caused by abnormal working conditions. Id. After receiving Employer s appeal form, the Board reversed the grant of the psychological claim because Claimant did not establish that his problems were the result of abnormal working conditions. Employer challenged the psychological injury award with sufficient specificity, and the Board did not err in addressing the issue as it did. 13 Conclusion The Board erred in concluding that Claimant failed to provide Employer sufficient notice of his disabling physical work injury. As to the psychological injury claim, the Board did not err in concluding that the claim must fail because Claimant was required to prove abnormal working conditions but did not do so. Accordingly, we affirm the Board s order denying the claim for a 13 Cf. Jonathan Sheppard Stables v. Workers Compensation Appeal Board (Wyatt), 739 A.2d 1084, 1089 (Pa. Cmwlth. 1999) (employer s appeal to the Board deemed insufficient to properly raise and preserve any issues because it listed only the numbers of the findings of fact and conclusions of law it was challenging and did not include any statement of alleged errors). 17
psychological injury and reverse the Board s order denying the claim for a disabling physical work injury. MARY HANNAH LEAVITT, Judge 18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Delmer L. Morris, : Petitioner : : v. : No. 1172 C.D. 2014 : Workers Compensation Appeal : Board (Ball Corp. and Sedgick : CMS, Inc.) : Respondents : O R D E R AND NOW, this 11 th day of June, 2015, the order of the Workers Compensation Appeal Board dated June 30, 2014, in the above-captioned matter is hereby REVERSED inasmuch as it reversed the Workers Compensation Judge s grant of the claim for a physical work injury and AFFIRMED in all other respects. MARY HANNAH LEAVITT, Judge