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New Enterprise Stone & Lime Co., Inc., and Pma Management Corporation v. Workers' Compensation Appeal Board (Kalmanowicz

December 6, 2012

NEW ENTERPRISE STONE & LIME CO., INC., AND PMA MANAGEMENT CORPORATION, PETITIONERS
v.
WORKERS' COMPENSATION APPEAL BOARD (KALMANOWICZ), RESPONDENT



The opinion of the court was delivered by: Anne E. Covey, Judge

Submitted: November 16, 2012

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge

HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE COVEY

New Enterprise Stone & Lime Co., Inc.*fn1 and PMA Management Corporation (collectively, Employer) petition this Court for review of the Workers' Compensation Appeal Board's (Board) July 10, 2012 order affirming the Workers' Compensation Judge's (WCJ) decision granting Anthony Kalmanowicz's (Claimant) claim petition. There is essentially one issue for this Court's review: whether the Board erred by determining that Claimant proved a physical/mental injury. We affirm.

Claimant was employed as a lowboy/equipment operator for Employer since April 2002. His duties included moving road construction equipment from job to job on a tractor trailer, and occasionally operating the equipment. On June 1, 2009 at 4:00 p.m., Claimant was operating a tractor attached to a trailer (known as a "lowboy") for Employer westbound on Route 6 in Wyalusing Township, Bradford County at approximately 55 miles per hour. While proceeding through a gradual turn, Claimant noticed a vehicle in the oncoming lane. The oncoming car's driver appeared to be putting something down or picking something up, then sat upright and veered into Claimant's lane. Claimant drove onto the shoulder up to the guardrail in order to avoid impact, but the vehicle struck his trailer head-on. The driver of the oncoming vehicle was pressing himself toward the windshield of his car and looking at Claimant when the vehicle and the tractor trailer collided.*fn2 The other driver died upon impact.

The collision forced Claimant's truck down an embankment and into some trees. After hearing people tell him to get out of the trailer before it caught fire, he slowly exited the trailer. Claimant refused medical treatment at the scene. After nearly four hours at the accident scene, Claimant was taken to the emergency room by Employer's secretary, Nikki Brewer, where he was examined. Claimant was diagnosed with left-sided chest wall and right wrist contusions and left shoulder tenderness/discomfort, and was released.

Claimant continued to work for Employer. As a result of the accident, Claimant's trailer was destroyed and, because Employer had no other truck for him to drive for nearly six weeks, he did not drive during that time. When Employer replaced the truck, Claimant resumed his pre-accident driving duties until December 2, 2009, when he experienced his normal winter lay-off period. In March 2010, Claimant began treatment for post-traumatic stress disorder (PTSD). He returned to work April 28, 2010 as a laborer at a lower hourly wage.*fn3

Claimant filed a claim petition alleging that he sustained the PTSD as a result of the June 2009 work-related accident. Employer denied Claimant's allegations. Hearings were held before a WCJ on May 24, 2010, September 21, 2010, and May 10, 2011. In a decision issued October 13, 2011, the WCJ awarded Claimant benefits for physical/mental injury manifested as PTSD resulting from the "triggering physical event" of the June 1, 2009 accident. WCJ Op. at 5. By opinion issued July 10, 2012, the Board affirmed the WCJ's decision. Employer appealed to this Court.*fn4

Employer argues that the Board erred by applying the standard for a physical/mental injury, as opposed to a mental/mental injury, and that Claimant failed to prove either. Employer specifically contends that a physical/mental injury cannot be established based upon fear of serious injury and knowing that someone died, but Claimant must also have suffered physical injuries that required medical treatment.

"In an original claim petition, as here, the claimant has the burden of proving all elements necessary to support an award." B & T Trucking v. Workers' Comp. Appeal Bd. (Paull), 815 A.2d 1167, 1170-71 (Pa. Cmwlth. 2003). "This burden includes establishing a continuing loss of earning power caused by a work-related injury." Putz v. Workers' Comp. Appeal Bd. (Lupini Constr. Co.), 727 A.2d 1192, 1194 (Pa. Cmwlth. 1999). "Disabilities caused by psychological/mental elements may be considered injuries which are compensable under the Workers' Compensation Act if all the elements needed to establish such a claim are present." Ryan v. Workmen's Comp. Appeal Bd. (Cmty. Health Servs.), 550 Pa. 550, 557-58, 707 A.2d 1130, 1133 (1998); see also Section 301(c) of the Workers' Compensation Act.*fn5

Psychological injuries fall into three categories: "(1) mental/physical- where a psychological stimulus causes physical injury; (2) physical/mental-where a physical stimulus causes a psychic injury; and (3) mental/mental-where a psychological stimulus causes a psychic injury. These categories require different standards of proof, the last being the most rigorous, requiring proof of abnormal working conditions." Washington v. Workers' Comp. Appeal Bd. (State Police), 11 A.3d 48, 52 n.2 (Pa. Cmwlth. 2011) (quoting City of Phila. v. Workmen's Comp. Appeal Bd. (Brasten), 682 A.2d 875, 878 n.4 (Pa. Cmwlth. 1996), aff'd per curiam, 556 Pa. 400, 728 A.2d 938 (1999) (citation omitted)). "Because psychological injuries are highly subjective, the occurrence of the injury and its cause must be adequately established." Washington, 11 A.3d at 55.

The issue here is whether Claimant proved a physical/mental injury. To substantiate a physical/mental injury claim, the psychological injury must be the result of a triggering physical event and the injury must arise in the course of employment. If the casual [sic] relationship between the claimant's work and the injury is not clear, the claimant must provide unequivocal medical testimony to establish the necessary relationship.

Bartholetti v. Workers' Comp. Appeal Bd. (School Dist. of Phila.), 927 A.2d 743, 746 (Pa. Cmwlth. 2007) (citation and footnote omitted). "Unequivocal medical testimony is a medical expert's testimony that in his professional opinion the claimant's condition . . . did [in fact] ...


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