K. Frankiewicz v. WCAB (Kinder Morgan, Inc.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kenneth Frankiewicz, :
:
Petitioner :
:
v. : No. 20 C.D. 2017
: Submitted: September 1, 2017
Workers’ Compensation Appeal :
Board (Kinder Morgan, Inc.), :
:
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: November 14, 2017
Kenneth Frankiewicz (Claimant) petitions for review from an order of
the Workers’ Compensation Appeal Board (Board) that affirmed a Workers’
Compensation Judge’s (WCJ) decision denying Claimant’s Petition for Workers’
Compensation Benefits (Claim Petition), Petition to Review Medical Treatment
and/or Billing (Review Medical Petition), Petition to Review Compensation
Benefits (Review Petition), and Petition for Penalties (Penalty Petition) filed against
Kinder Morgan, Inc. (Employer). Claimant contends that the WCJ erred by
improperly applying the mental-mental standard, as opposed to the physical-mental
standard, to his mental disability claim. Discerning no error, we affirm.
I. Background
On May 23, 2012, Claimant filed a Claim Petition alleging that he
sustained an injury on April 20, 2012, in the nature of dizziness, headaches,
shortness of breath, and a sinus infection from exposure to a diesel leak from a
nearby Hess facility, while in the course and scope of his employment as a chemical
operator with Employer. Certified Record (C.R.) at 9. A year later, Claimant filed
a Penalty Petition and Review Medical Petition alleging Employer violated the
Workers’ Compensation Act (Act)1 by not paying for his emergency room treatment
on the date of the injury and by not issuing a denial until six months after the incident.
Claimant also filed a Review Petition alleging an incorrect description of his injury
and a worsening of his condition. Specifically, Claimant claimed he suffered cellulitis
caused by staphylococcus and/or streptococcus (blood infection). C.R. at 86.
Employer filed timely answers denying the material allegations in the petitions. The
petitions were consolidated and assigned to a WCJ, who held hearings. WCJ’s
Opinion, 10/2/15, Finding of Fact (F.F.) No. 5.
In support of his petitions, Claimant testified that, on Friday, April 20,
2012, he was working on a loading dock on the Delaware River in Philadelphia
where he perceived an odor of fuel all day. He also noticed fuel floating on the water
from a discharge of diesel fuel from a plant a mile away. He experienced headache,
nausea, violent vomiting, choking, a runny nose and watery eyes. He also developed
symptoms of sweating and shaking, throat pain and abdominal pain. He was taken
to Hahnemann University Hospital’s emergency room and was discharged three-
and-one half hours later and advised to visit his family doctor if he did not feel better.
Claimant did not work the following day, but he returned to work on Sunday. On
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501-2708.
2
Monday, Claimant went to his family doctor, who did not prescribe medication or
refer him to another doctor. A week later, Claimant got a sinus infection. His doctor
recommended over-the-counter sinus medicine (Claritin). Claimant believes that his
sinus problems were caused by the April 20, 2012 work incident. Claimant also
testified that since the incident, he has experienced digestive issues, including
vomiting and acid reflux, for which he takes medicine, as well as breathing
problems, chest pains, and fatigue. Although Claimant continued to work after the
incident, he started to wear a respirator, rubber suit and hardhat with a shield as
protection. Claimant testified that he experiences panic attacks, anxiety, and
depression, as well as problems with his wife and parenting, which he attributed to
the work incident. He takes Lorazepam for his nerves, an inhaler for his breathing
problems, Hydrocodone for his neck pain, medication for nausea, medication for
stomach and esophageal corrosion, as well as Cialis or Viagra. Reproduced Record
(R.R.) at 52a. Claimant stopped working on September 15, 2012. However, he
testified his symptoms have not improved. He is still dealing with sinus issues, sore
throat, occasional nausea, and labored breathing if he climbs stairs. In November
2014, Claimant developed a serious blood infection, which hospitalized him for
eight days. F.F. Nos. 4, 10b, 16-18.
Both parties submitted expert medical evidence. Claimant presented
the deposition testimony of his family physician, Theodore Porter, D.O. Dr. Porter
diagnosed Claimant with insomnia, sinusitis, esophageal/gastric erosion, headaches,
dysphagia, shortness of breath, thoracic compression, neurasthenia, erectile
dysfunction, back pain, bilateral shoulder strain, vomiting, pancreatitis, pulmonary
insufficiency, and possible sleep apnea. Dr. Porter attributed these issues to the
exposure of fuel vapors over his 15-year career with Employer and Claimant’s
3
history. He also diagnosed Claimant with post-traumatic stress disorder (PTSD),
pulmonary problems, and sleep issues and related them to his employment with
Employer. He opined that Claimant is not able to return to work. F.F. Nos. 13, 14.
Claimant also submitted the deposition testimony of Brian Raditz,
Ed.D., an unlicensed psychologist and doctor of education, who diagnosed Claimant
with pain disorder and attendant anxiety, depression, irritability, and sleep difficulty.
Dr. Raditz testified Claimant’s psychological condition is disabling and is a direct
result of the April 20, 2012 work incident. F.F. No. 15.
Claimant also offered the deposition of Frank Spisak, a pump operator
for Employer, who confirmed the fuel leak and described the length and strength of
the fumes. He also observed Claimant’s decline in health following the incident.
F.F. No. 19. Finally, Claimant’s wife testified regarding the changes she observed
in her husband following the incident. F.F. No. 20.
Employer presented the deposition testimony of John Cohn, M.D., who
is board certified in internal medicine, in pulmonary medicine, and in allergy and
immunology. After examining Claimant and reviewing his records, he could not
identify a work-related condition. Dr. Cohn could not identify Claimant as being
disabled as a result of his exposure from the April 20, 2012 incident, nor could he
identify any specific medical treatment that was required as a result of his exposure.
He testified that Dr. Porter’s list of ailments was so long that it was difficult to tell
which ones were keeping him from working. Dr. Cohn opined that Claimant seemed
to be having complaints in excess of what could be objectively demonstrated. F.F.
No. 11.
Employer also presented the deposition testimony of Wolfram Rieger,
M.D., a board certified psychiatrist, who examined Claimant and took a history from
4
him. He opined that Claimant did not have a psychiatric disorder related to any
work-related incident. Rather, he concluded that Claimant is suffering from pre-
existing depression that was not aggravated by the work incident. F.F. No. 12.
Given the complexity of Claimant’s health issues, the WCJ appointed
an independent medical examiner, Michael Greenberg, M.D., at the Bureau of
Workers’ Compensation’s expense to examine Claimant and issue an impartial
report. Dr. Greenberg is the Chief of the Division of Medical Toxicology at Drexel
University within the Department of Emergency Medicine and is board-certified in
Occupational/Environmental Medicine and Medical Toxicology and in Emergency
Medicine. Dr. Greenberg examined Claimant and his medical records and issued a
32-page report. His comprehensive evaluation of Claimant was normal. Claimant’s
complaints were consistent with anxiety and depression in the context of symptom
magnification as well as insomnia and somatic complaints. However, Dr. Greenberg
opined that there was no evidence of: (1) acute or chronic toxic exposure syndrome;
(2) toxicological illness or injury; (3) reactive airways dysfunction syndrome
(RADS); or (4) acute or chronic pharyngitis. He described Claimant’s alleged
exposure as “extremely brief, if not fleeting.” F.F. No. 10(g). He opined there was
no evidence of a completed exposure pathway. The perception of odor did not
constitute an effective or valid exposure pathway. “There was no evidence of an
exposure source for any specific chemical or chemicals, there was no evidence of a
medically important exposure or medically important dose, and there was no
documentation of a relevant or recognized medical adverse outcome.” F.F. No.
10(h). In essence, he found no evidence of any injury or illness as a result of the
April 20, 2012 incident. According to Dr. Greenberg, the most likely diagnosis for
5
all of Claimant’s symptoms was anxiety/depression in the context of symptom
magnification and obstructive sleep apnea. F.F. Nos. 8-10.
The WCJ found the opinions of Dr. Greenberg and Dr. Cohn to be more
credible than the opinions of Dr. Porter. F.F. No. 21. He also found the testimony
of Dr. Rieger more credible than that of Dr. Raditz. F.F. No. 24. The WCJ credited
Claimant’s testimony. F.F. No. 23. The WCJ detailed his reasons for making his
credibility determinations. F.F. Nos. 21, 23, 24.
The WCJ opined that the determination of whether exposure to a diesel
oil spill caused Claimant’s symptoms and diagnoses was not obvious; Claimant
needed to prove causation by expert medical evidence. The WCJ found that
Claimant did not meet his burden. Relying predominantly on the report and medical
opinions of Dr. Greenberg, the WCJ found that the medical evidence does not
support a finding that Claimant’s exposure to diesel fumes was the cause of his
symptoms or the reason for his disability on September 15, 2012. In short, the WCJ
found that Claimant did not suffer a physical work injury as a result of his exposure
to diesel fumes on April 20, 2012. F.F. Nos. 21-23.
Significantly, however, the WCJ found that Claimant appeared to have
suffered a psychological injury from the incident. F.F. No. 24. “Almost every
doctor, including Dr. Greenberg[,] believes Claimant is suffering from a
psychological injury.” Id. But, because Claimant did not prove that his physical
symptoms were caused by the work incident, the WCJ did not apply the physical-
mental standard. Rather, the WCJ applied the mental-mental standard to his claim,
which requires a claimant to prove abnormal working conditions. The WCJ found
that Claimant did not meet his burden of proving an abnormal working condition to
support his alleged psychiatric disability. Although the diesel spill was an unusual
6
event, there was no evidence presented that this was an abnormal working condition
for a chemical operator such as Claimant. Ultimately, the WCJ concluded that
Claimant did not sustain a work-related injury due to an exposure to diesel fumes on
April 20, 2012. F.F. No. 24. Thus, the WCJ denied each of Claimant’s petitions.
WCJ’s Opinion, Conclusions of Law, Nos. 2-4.
From this decision, Claimant appealed to the Board, which affirmed.
Claimant now petitions this Court for review.2
II. Issue
On appeal, Claimant argues that the WCJ and the Board erroneously
applied the “mental-mental” or “abnormal working conditions” standard to this
matter as opposed to the “physical-mental” standard. Under the physical-mental
standard, a claimant must prove a triggering work-related physical stimulus caused
his mental injury. Claimant contends he met this burden by showing that his
exposure to the diesel spill at work caused a physical injury, including headache,
nausea, and vomiting, which necessitated immediate medical treatment. This
physical injury was the triggering stimulus that caused his mental disability. Almost
all of the medical experts agreed that Claimant has suffered a psychiatric injury as a
result of the work incident. Claimant asserts that reversal is warranted because the
WCJ denied his Claim Petition based solely on the lack of “abnormal working
conditions.”
III. Discussion
2
Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed or whether constitutional rights
were violated. Department of Transportation v. Workers’ Compensation Appeal Board
(Clippinger), 38 A.3d 1037, 1042 n.3 (Pa. Cmwlth. 2011).
7
With respect to a claim petition, the claimant bears the initial burden of
proving that his injury arose in the course of employment and was related thereto.
Wachs v. Workers’ Compensation Appeal Board (American Office Systems), 884
A.2d 858, 862 (Pa. 2005) (citing Krawchuk v. Philadelphia Electric Co., 439 A.2d
627, 630 (Pa. 1981)). Generally, if there is no obvious relationship between the
disability and the work-related cause, unequivocal medical testimony is required to
meet this burden of proof. Fotta v. Workmen’s Compensation Appeal Board (U.S.
Steel), 626 A.2d 1144, 1146 (Pa. 1993); Lewis v. Workmen's Compensation Appeal
Board, 498 A.2d 800, 802 (Pa. 1985). The medical witness must testify that, in his
or her professional opinion, the injury came from the work incident. Lewis, 498
A.2d at 802.
Mental injuries fall into three categories: “[(1)] mental-mental,
whereby a mental or psychic condition is caused by a psychic stimulus; [(2)] mental-
physical, whereby a psychic injury manifests itself in some physical form; and [(3)]
physical-mental, whereby a physical injury results in psychic distress.” Payes v.
Workers’ Compensation Appeal Board (Pennsylvania State Police), 79 A.3d 543,
550 (Pa. 2013); accord Ryan v. [Workmen’s] Compensation Appeal Board
(Community Health Services), 707 A.2d 1130, 1133–34 (Pa. 1998); Murphy v.
Workers’ Compensation Appeal Board (Ace Check Cashing Inc.), 110 A.3d 227,
234 (Pa. Cmwlth.) (en banc), appeal denied, 126 A.3d 1286 (Pa. 2015).
If a claimant’s mental disability was caused by a psychological
stimulus, the mental-mental standard applies. Payes, 79 A.3d at 550; Murphy, 110
A.3d at 235. To prevail under the mental-mental standard, a claimant must prove
abnormal working conditions. Payes, 79 A.3d at 550.
8
Where, as here, a claimant asserts a claim under the physical-mental
standard, the claimant must establish that the mental injury resulted from “a
triggering physical stimulus” and arose during the course of employment. Murphy,
110 A.3d at 234 (citing Bartholetti v. Workers’ Compensation Appeal Board (School
District of Philadelphia), 927 A.2d 743, 746 (Pa. Cmwlth. 2007)). Our case law has
interpreted the term “physical stimulus” to mean “a physical injury that requires
medical treatment, even if that physical injury is not disabling under the [Act].”
Murphy, 110 A.3d at 234; accord Ryan, 707 A.2d at 1131; Anderson v. Workers’
Compensation Appeal Board (Washington Greene Alternative), 862 A.2d 678, 685
(Pa. Cmwlth. 2004); Pittsburgh Board of Education v. Workers’ Compensation
Appeal Board (Schulz), 840 A.2d 1078, 1081 (Pa. Cmwlth.), appeal denied, 857
A.2d 681 (Pa. 2004); Donovan v. Workers’ Compensation Appeal Board (Academy
Medical Realty), 739 A.2d 1156, 1161 (Pa. Cmwlth. 1999). “Additionally, the
mental injury must be related to the physical stimulus.” Murphy, 110 A.3d at 234.
In other words, a claimant must prove that a physical work injury
requiring medical treatment caused a psychological injury. Murphy, 110 A.3d at
234. However, “[a] claimant need not prove that he or she suffered a physical
disability that caused a mental disability for which he or she may receive benefits.
Nor must a claimant show that the physical injury continues during the life of the
[mental] disability.” Id. (quoting Donovan, 739 A.2d at 1161 (emphasis omitted)).
Although the physical injury itself is not required to be disabling under the Act, its
presence or lack thereof, and its relationship to the mental injury, is determinative to
whether the physical-mental standard applies. Murphy, 110 A.3d at 237. Unlike
under the mental-mental standard, under the physical-mental standard, a claimant is
not required to show abnormal working conditions. See Murphy, 110 A.3d at 238;
9
Anderson, 862 A.2d at 683. The following cases illustrate how the courts have
applied the physical-mental standard.
In Anderson, the physical stimulus was insufficient to support the
application of the physical-mental standard. There, the claimant worked in a group
home for mentally and physically challenged young adults and filed a claim petition
alleging that she sustained a work-related mental injury as a result of, inter alia, a
client “pulling at [her] hair and pulling at [her] blouse.” Anderson, 862 A.2d at 681.
The claimant argued that the physical-mental standard applied. On appeal, we
disagreed. “[A]lthough there was some physical contact between [the c]laimant and
her clients during the incidents . . . , she did not suffer any physical injury that
required medical treatment.” Id. at 685. Accordingly, this Court concluded that the
matter was “more properly analyzed under the mental/mental standard.” Id. We
affirmed the denial of benefits because the claimant’s exposure to combative
behavior from mentally challenged clients did not constitute an abnormal working
condition. Id. at 686.
In Ryan, the physical-mental standard did not apply because the
physical stimulus did not cause the mental injury. There, the claimant was involved
in a work-related automobile accident in which she sustained physical injuries that
were accepted by her employer. More than a year after the accident, the claimant
learned that the other driver, who had sustained severe injuries, filed a lawsuit
against her. Ryan, 707 A.2d at 1132. Thereafter, the claimant began experiencing
depression; she stopped working; and, she filed a petition for review to expand her
accepted work-related physical injuries from the accident to include a work-related
mental disability. Id. Our Supreme Court concluded that the claimant’s mental
injury was not caused by the work-related physical stimulus -- the accident -- but by
10
a psychological stimulus -- the lawsuit. Id. at 1134-35. Consequently, the physical-
mental standard did not apply. Id. at 1135.
Conversely, in Donovan, the physical-mental standard did apply.
There, the claimant, a janitor whose job duties did not include emptying medical
waste, sustained a mental injury after being pricked twice in the hand by improperly
disposed hypodermic needles in one of the medical offices that he cleaned.
Donovan, 739 A.2d at 1159. The claimant received medical treatment in the form
of blood work and booster shots. Id. The claimant became anxious and fearful of
working in that particular office, and he experienced panic attacks, nausea, and
nightmares, which caused him to seek psychiatric treatment. Id. The claimant filed
a claim petition alleging he was disabled as a result of his mental injuries. Id.Applying the physical-mental standard, we determined that claimant established a
compensable mental injury because “[t]he WCJ accepted as fact . . . that [the
c]laimant had twice injured himself on hypodermic needles at work to the extent that
he sought treatment.” Id. His treatment included blood work and booster shots due
to the concern regarding the transmission of disease from the used hypodermic
needles. Id. And, “[the c]laimant’s psychological illness was based directly on these
physical injuries.” Id.Similarly, in Schulz, the claimant was hit on the head with a heavy
object while performing his teaching duties, which caused his head to swell. The
claimant sought treatment at a hospital, and he later developed a mental injury as a
result of the physical injury. The WCJ awarded benefits under the physical-mental
standard, and the Board affirmed. Schulz, 840 A.2d at 1079-80. On appeal to this
Court, the employer argued that the physical-mental standard was not applicable
because the triggering physical event was de minimis and the claimant was not
11
injured. Id. at 1081. We rejected the argument because the claimant was injured.
Claimant was hit on the head; the side of his head swelled; and, he sought treatment
for that injury at the hospital. Id. Thus, we concluded that the physical-mental
standard was applicable under these circumstances and affirmed the award of
benefits under this standard. Id.
Again, in Bartholetti, the physical-mental standard applied. There, the
claimant, an elementary school teacher, intervened in an altercation between two
students, was punched in the shoulder, and bitten on the arm. Bartholetti, 927 A.2d
at 744. The claimant immediately went to the hospital, where a doctor confirmed
she sustained a bite to her arm. Id. Blood tests were required to determine whether
the claimant had contracted HIV or hepatitis. Id. The claimant attempted to return
to work the next day, but was unable to work more than half a day, and she sought
psychological treatment. Id. at 744. The claimant suffered from crying spells,
anxiety, and depression, and experienced “flashbacks of the student fight she
intervened in and in which a student bit her on the arm” and was “frightened to return
to her school to work.” Id. at 744-45. We concluded that substantial evidence
supported the WCJ’s finding that the claimant suffered a disabling mental injury “as
a result of the physical injury she suffered at work” in the nature of a bite to her arm,
and that “her disability was caused by a work injury.” Id. at 747.
More recently, in Murphy, we applied the above analysis to a case in
which the claimant asserted application of the physical-mental standard for her
mental injury, which she sustained as a result of an armed robbery. The claimant
worked as a general manager for a check cashing business when the store was robbed
at gunpoint. The claimant alleged that she sustained a work-related mental PTSD
injury. The claimant asserted that the physical-mental standard applied because she
12
sustained physical bruising to her wrists and ankles from being “hog-tied” during
the robbery. Murphy, 110 A.3d at 238. The claimant testified that she went to the
hospital for treatment because she “started getting chest pains and couldn’t breathe
or speak” and because “[s]he ha[d] high blood pressure.” Id. She did not receive
any treatment at the hospital other than oxygen and medication to calm her down.
The WCJ categorized her physical injuries as “slight” and did not apply the physical-
mental standard. Id. at 232. Instead, the WCJ applied the mental-mental standard
and denied benefits. Id. at 233. On appeal, we concluded that slight bruising that
requires no medical treatment is not the type of physical injury contemplated by
Ryan, Donovan, Schulz, and Bartholetti. Id. at 238. Rather, it was more akin to the
allegations that were found to be insufficient in Anderson. Id. Moreover, we opined
that the claimant’s PTSD was not the result of her physical injury or stimulus, i.e.,
the slight bruising to her wrists and ankles, but to the entire experience of the armed
robbery itself. Id. Thus, we held that the physical-mental standard did not apply
and the claimant was required to prove abnormal working conditions under the
mental-mental standard. Id.Applying the foregoing analysis here, Claimant did not establish that
his mental injury resulted from a work-related, triggering physical stimulus. First,
although Claimant experienced some symptoms immediately following his
exposure, these symptoms were insufficient to support an application of the
physical-mental standard. Similar to the bruise in Murphy or the physical contact in
Anderson, the symptoms he experienced on the day of the incident were transient
and quickly resolved.
More particularly, on the day of the incident, Claimant experienced
vomiting, choking, runny nose, watery eyes, “sweating and shaking,” throat pain,
13
abdominal pain and headache and received medical treatment for his symptoms
following his exposure to work-related diesel fumes. However, his symptoms were
transient and resolved before his discharge from the emergency room. R.R. at 177a-
183a, 224a. According to the emergency room physician and nursing notes, there
were no other pertinent positives on the review of Claimant’s systems; his
examinations and vital signs were normal. R.R. at 224a; see also R.R. 177a-192a.
Indeed, the notes indicate that Claimant’s head, face and eye exams were normal;
conjunctivae was normal; neck, chest and axilla examinations were normal;
cardiovascular examination was normal; respiratory examination was normal with
no respiratory distress, normal symmetrical respirations, and normal clear breath
sounds; abdominal examination was normal; neurologic examination was normal;
and psychiatric examination was normal. R.R. at 224a; 182a-191a. His pulmonary
results showed that Claimant had dyspnea/shortness of breath and cough while
exercising, but not during rest. R.R. at 182a; 226a. The emergency room treated
him with one liter of normal saline administered intravenously, 650 mg of Tylenol
administered orally, and two doses of 4 mg of Ondansetron (an anti-nausea
medication) administered intravenously. R.R. at 178a; 226a. His symptoms rapidly
improved while in the emergency room, such that by the time of his discharge he
was symptom-free. R.R. at 177a; 226a. His headache and nausea had resolved.
R.R. at 177a; 226a. Claimant returned to work and continued to work that summer.
R.R. at 218a.
Second, although Claimant reported a host of other, more persistent
ailments following the incident, Claimant did not prove that they were work-related.
Although Dr. Porter attributed Claimant’s numerous physical symptoms and
conditions to the work-related exposure, the WCJ rejected this evidence upon
14
finding that Dr. Porter did not offer a credible basis to support his opinion. F.F. No.
21. The WCJ relied instead upon the opinions of Drs. Greenberg and Cohn. F.F.
No. 21.
Dr. Greenberg found no evidence of a causal relationship between the
inhalation of fuel fumes on April 20, 2012, and any of Claimant’s reported
symptoms. Dr. Greenberg testified that it was “unlikely that he actually suffered any
exposure at all. Rather, it is probable he merely perceived odors related to the
chemical spill that occurred at a site distant from the site where he was working on
the date at issue.” C.R. at 1031. He explained that the presence of symptoms
following a potential for exposure did not prove that any toxicant caused the
symptoms. Id. Dr. Greenberg believed that the most likely diagnosis for Claimant’s
symptoms was anxiety/depression syndrome in the context of symptom
magnification and pre-existing obstructive sleep apnea. R.R. at 228a; C.R. at 1035.
In addition, Dr. Cohn could not identify a work-related injury or
condition because of any inhalation exposure. R.R. at 210a. Although Claimant
went to the emergency room following the exposure, there were no objective
findings of difficulty beyond nausea and headache; his symptoms resolved by the
time he left the hospital. C.R. at 923-924. Dr. Cohn could not identify any specific
medical treatment that was required as a result of the fuel exposure. R.R. at 211a.
According to Dr. Cohn, Claimant did not require any medical treatment as the
medical records established a mild, transient problem of nausea and dizziness
possibly from fuel exposure. C.R. at 923-924. Based on the credited evidence, the
WCJ found that Claimant did not prove that his exposure to the diesel fuel spill on
April 20, 2012, caused any of his physical symptoms. F.F. Nos. 22, 23.
15
Moreover, even assuming that Claimant met his burden of proving a
work-related physical injury, Claimant did not prove that his physical injury was the
cause of his mental injury. See Murphy. Like the PTSD in Murphy, Claimant’s
mental injury appears related to the experience of the fuel exposure itself, not to any
physical injury allegedly suffered because of that exposure. See Murphy.
Consequently, the WCJ did not err in concluding that the physical-mental standard
did not apply.3 As a result, we are constrained to conclude that WCJ did not err in
denying his Claim Petition.
Accordingly, we affirm.
MICHAEL H. WOJCIK, Judge
3
In the absence of a physical triggering stimulus, the WCJ properly determined that
Claimant was required to prove an abnormal working condition under the mental-mental standard.
However, Claimant did not meet his burden under this standard. Claimant does not challenge the
absence of an abnormal working condition on appeal.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kenneth Frankiewicz, :
:
Petitioner :
:
v. : No. 20 C.D. 2017
:
Workers’ Compensation Appeal :
Board (Kinder Morgan, Inc.), :
:
Respondent :
ORDER
AND NOW, this 14th day of November, 2017, the order of the Workers'
Compensation Appeal Board, dated December 13, 2016, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge