S. Russo v. Upper Darby Twp. (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Steve Russo, :

Petitioner :

:

v. : No. 1093 C.D. 2024

:

Upper Darby Township (Workers’ :

Compensation Appeal Board), :

Respondent : Submitted: June 3, 2025

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE MATTHEW S. WOLF, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY

JUDGE WOLF FILED: December 8, 2025

Steve Russo (Claimant) petitions this Court for review of an August 2, 2024

order of the Workers’ Compensation Appeal Board (Board), which affirmed a

decision by WCJ Kathleen DiLorenzo denying Claimant’s petition for workers’

compensation benefits (Claim Petition) and his petition to amend the injury

description listed on a Notice of Temporary Compensation Payable (NTCP) (Review

Petition). Claimant argues that WCJ DiLorenzo misinterpreted controlling authority

governing the so-called physical/mental and mental/mental burdens of proof for

psychological injuries, and that she reached a conclusion inimical to the

humanitarian purposes of the Workers’ Compensation Act.1 Because WCJ

DiLorenzo relied on factual determinations without support in the record and

consequently reached a decision that was both unreasonable and unjust, we reverse.

1

Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.

I. Background

Claimant was a 14-year veteran officer of the Upper Darby Township

(Township) Police Department when, on November 20, 2020, he was involved in a

violent struggle that concluded with the death of a wanted suspect. See Certified

Record (C.R.), Item No. 18, Incident Report. The Township issued an NTCP, which

converted by operation of law to a medical-only Notice of Compensation Payable

(NCP) on February 19, 2021.2 Therein, the Township listed the work injuries as a

strain or tear to one or both shoulders and unspecified injuries to the throat, neck,

left hand, and shoulder. C.R., Item No. 19, NTCP. Claimant returned to work on

March 1, 2021, but was placed again on administrative leave on December 15, 2021.

C.R., Item No. 26, Evaluation Form.

Through the August 9, 2022 Review Petition, Claimant sought to add post-

traumatic stress disorder (PTSD), depression, and an injury to the right elbow to the

list of accepted work injuries. C.R., Item No. 2. Claimant filed his Claim Petition

on the same day seeking wage loss benefits. C.R., Item No. 5. The Township filed

timely answers to both petitions, in which it denied that Claimant suffered from a

work-related disability and that an amendment of the injury description was

warranted. C.R., Item Nos. 4, 7.

In support of his Claim and Review Petitions, Claimant testified at hearings

before WCJ DiLorenzo and presented the deposition testimony of Dr. Mark Paiste,

an orthopedic surgeon, and of Dr. Lee Solomon, a clinical psychologist. In its

defense, the Township presented the hearing testimony of Timothy Bernhardt, its

2

Section 406.1(d)(6) of the Workers’ Compensation Act (Act), added by Section 3 of the Act

of February 8, 1972, P.L. 25, 77 P.S. § 717.1(d)6), provides that an employer who does not provide

notice of a discontinuance of medical payments within 90 days of issuing an NTCP “shall be

deemed to have admitted liability and the [NTCP] shall be converted to a[n NCP].”

2

Superintendent of Police, and the deposition testimony of Dr. Noubar Didizian, an

orthopedic surgeon.

A. Claimant’s Testimony

At a September 14, 2022 hearing, Claimant stated that he was 48 years old

and a 24-year law enforcement veteran. C.R., Item No. 13, 9/14/2022 Hr’g Tr. at 6-

7. Since 2006, Claimant had been working for Employer as a canine patrol officer.

Id. at 7.

On the morning of November 20, 2020, during roll call, Claimant and fellow

Township police officers were instructed to be on the lookout for Jeffrey Laudermilt

II, an “armed and dangerous” man who was alleged to have recently “beat[en] up

his girlfriend pretty bad” before fleeing from Township police. Id. at 12. Mr.

Laudermilt was also wanted in several jurisdictions elsewhere in the United States.

Id. at 12. At approximately 12:30 that afternoon, while patrolling the area near the

Cobbs Creek Golf Club, Claimant observed Mr. Laudermilt standing in front of a

house. Id. at 12-13. Claimant informed him that he was under arrest and

admonished him not to run, but Mr. Laudermilt slipped into an alleyway. Id. at 12.

With Claimant pursuing him on foot, Mr. Laudermilt ran for several blocks until

“jump[ing] off a pretty steep embankment . . . covered in vegetation,” into which

Claimant followed him. Id. at 13-14. Claimant caught up with and cornered Mr.

Laudermilt in the embankment and shouted again that he was under arrest, but Mr.

Laudermilt replied, “I’m not going back to jail. I’m going to fucking kill you.” Id.

at 15. After Claimant made a final plea for cooperation, Mr. Laudermilt charged at

him; Claimant deployed his taser, which struck Mr. Laudermilt in the chest, but Mr.

Laudermilt pulled the electrodes off of his body and charged again at Claimant. Id.

Fearing that Mr. Laudermilt could gain control of the taser and use it against him,

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Claimant threw it away and opted for hand-to-hand combat. Id. When Mr.

Laudermilt charged at him again, Claimant grabbed Mr. Laudermilt’s legs and

shoved him against a tree trunk, but Mr. Laudermilt managed to place Claimant in a

headlock; Claimant began choking. Id. at 16. Mr. Laudermilt’s grip was forceful

enough that Claimant could feel that his feet were coming off the ground. Id.

Claimant heard the sound of fellow officers nearby but knew that they could not see

or hear him in the dense vegetation of the embankment. Id.

With his head and neck still firmly in Mr. Laudermilt’s grip, Claimant reached

with his right arm toward his left waist, where his radio handset should have been,

but discovered that his entire duty belt had come loose and his holster undone. Id.

at 17. Claimant noted that his service weapon was protected by a triple retention

holster, which is “very hard” to break, yet Mr. Laudermilt had managed to begin

prying the service weapon out. Id. at 18. Nonetheless, Claimant managed to emerge

from Mr. Laudermilt’s grasp and place himself atop Mr. Laudermilt’s body while

they continued to fight for control of the firearm. Id. Finally, Claimant placed his

right hand on the firearm’s grip; Mr. Laudermilt grabbed the muzzle and moved it

sideways. Id. at 18. Fearing that his own death would be imminent if he did not

“stop this threat,” Claimant aimed the barrel at Mr. Laudermilt’s torso, with Mr.

Laudermilt’s hand still on the muzzle, and fired a single shot into Mr. Laudermilt’s

chest. Id. at 19. Mr. Laudermilt still tried to fight off Claimant in spite of the bullet

wound; meanwhile, the spent casing from the shot Claimant fired did not fully eject,

making a second shot impossible. Id. at 19. Claimant continued to struggle with the

bloodied Mr. Laudermilt until the arrival of Philadelphia police officers who were

radioed for assistance. Id. at 19, 30. The officers jumped into the embankment and

4

immediately tased Mr. Laudermilt, which finally weakened him enough that he was

taken into custody. Id.

With Mr. Laudermilt subdued, Claimant and the Philadelphia officers called

for an ambulance and carried Mr. Laudermilt out of the embankment, fearing that it

would be inaccessible to paramedics. Id. at 30. Sensing that Mr. Laudermilt was

dying, Claimant undid his handcuffs and lifted Mr. Laudermilt’s shirt. Id. Claimant

observed a hole in Mr. Laudermilt’s chest, from which so much blood was emerging

that it was as though “somebody turned a fountain on.” Id. The stream of blood

“almost hit me in the face,” Claimant recalled. Id. Claimant attempted to perform

cardiopulmonary resuscitation (CPR) on Mr. Laudermilt but quickly recognized it

to be futile. Id. Mr. Laudermilt was taken by patrol vehicle to Lankenau Medical

Center, where he was pronounced dead at 1:48 p.m. Id.; see also Incident Report at

2.

For his own injuries from the incident, Claimant was transported to the

emergency room (ER) at Penn Presbyterian Medical Center. Id. at 21, 44-45. Notes

compiled by ER staff indicate that Claimant had been caught in a chokehold for

approximately 30 seconds and presented with neck soreness, shoulder soreness, back

pain, wrist pain, and hand pain, and that ER staff released him that afternoon. See

C.R., Item No. 25, Hospital Records.3 Consistent with the Township’s employment

policies, Claimant was also examined by its panel psychologist, Dr. Marla

McLaughlin, one week after the incident. 9/14/2022 Hr’g Tr. at 45. Claimant

recalled that the primary purpose of the evaluation was to determine whether he was

3

The notes by Penn Presbyterian ER staff were admitted by WCJ DiLorenzo at the request of

both parties. See WCJ Decision, F.F. No. 8. At Claimant’s request, WCJ DiLorenzo also admitted

photographs taken on the afternoon of November 20, 2020, showing his broken duty belt as well

as scrapes and scratches on both of his hands. See C.R., Item Nos. 21-24.

5

still fit for duty, and that Dr. McLaughlin determined Claimant to be fully fit. Id. at

49. Nonetheless, Claimant was placed on administrative leave while the Delaware

County District Attorney’s Office investigated the November 20, 2020 incident. Id.

at 35. Claimant continued to see Dr. McLaughlin weekly during his administrative

leave. Id. at 46.

While on administrative leave, Claimant recalled, he “couldn’t wait to get

back” to work. Id. at 36. When he was finally returned to full duty, on March 1,

2021, the Township promoted him to the rank of sergeant, which placed him in

charge of a platoon of officers. Id. Nonetheless, Claimant began “running into some

issues” involving his mental state during certain work situations. Id. The first

involved the discovery of a dead body in a car, which left Claimant with a peculiar

feeling and the suspicion that his “decision making was off.” Id. At the time,

Claimant attributed the unusual reaction to his long absence from work and reminded

himself that, now that he was a supervisor, it was permissible for him to be “kind of

a little hands[-]off” in his management of the situation. Id.

In April 2021, Claimant and fellow officers responded to a call regarding a

homicide suspect who barricaded himself inside a building, necessitating a thorough

search of the building. Id. at 37. During the search, Claimant saw the suspect’s feet

behind a curtain and, with his service weapon pulled, instructed him to come out.

Id. “[T]hankfully,” Claimant recalled, the suspect “came out and everything was

okay,” yet Claimant’s hands were “shaking uncontrollably.” Id. Claimant again

reassured himself that he would “get through” whatever was happening to his state

of mind. Id.

Throughout the summer of 2021, Claimant observed that the changes he was

noticing in his mental state got “progressively worse.” Id. Asked to describe those

6

changes in detail, Claimant responded that there was often “a feeling that . . . . [his]

heart would never beat,” accompanied by shortness of breath. Id. at 38. Claimant

began to encounter difficulty concentrating and a deep aversion toward conflict,

which left him doubtful of his ability to protect himself and others in violent

situations. Id. at 40. In contrast to the enthusiasm that he had formerly shown for

his job, Claimant began lying down for a couple of hours before his shift with the

goal of taking a nap but would instead “just stare at the ceiling.” Id. at 41. The

knowledge that his shift was about to begin “would drive [Claimant] crazy,” he

recalled. Id.

At home, Claimant recalled, he began to drink “severely” and “to the point

where . . . it really affected [his] family.” Id. at 41. Claimant recounted one morning

when he had an argument with his teenaged daughter about homework; after she left

for school, Claimant grabbed the television from her bedroom and threw it into his

front yard. Id. at 42. The strain on the family caused by Claimant’s behavioral

changes caused his wife to visit a psychiatrist on her own. Id. at 41. Claimant

testified that he had not previously experienced problems of this magnitude in his

marriage or with his alcohol consumption. Id. at 42.

Over time, the connection between the changes in Claimant’s mental state and

the fatal November 20, 2020 incident became obvious. Id. at 30-31. Claimant

explained that he could not get out of his mind certain images from that day, such as

the way in which Mr. Laudermilt’s t-shirt “puffed up” when Claimant fired his

service weapon or the look on Mr. Laudermilt’s face the instant when he was shot.

Id. at 29. At night, Claimant began having dreams several times a week in which

Mr. Laudermilt appears in a blood-drenched t-shirt, looking directly at Claimant. Id.

at 32. Claimant tended to awaken from these dreams at 1:30 or 2 o’clock in the

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morning and feel the need to walk around the house. Id. In an effort to get back to

sleep, Claimant often went back inside to watch television but tended to be “up for

the rest of the night” after the dreams of Mr. Laudermilt. Id.

From his March 1, 2021 return to work until October 2021, Claimant

continued to see Dr. McLaughlin twice monthly. Id. at 46. In October, in response

to the worsening of Claimant’s symptoms, Dr. McLaughlin referred Claimant to a

clinical psychologist who could “better suit[ his] needs,” by which she meant a

PTSD specialist. Id. at 54. Consequently, Claimant began treatment with Dr.

Solomon. Id. at 55. In December 2021, changes in Claimant’s professional

performance caused his supervisors to express their concern to Dr. McLaughlin, who

took Claimant out of work on December 17, 2021.4 Id. at 46. Claimant then returned

to paid administrative leave. Id. at 34.

With Claimant once again off work, a friend expressed interest about hiring

Claimant part-time at a funeral home the friend owned. Id. at 59. Claimant, who

was “going kind of stir crazy at home,” eagerly accepted the offer. Id. at 59-60.

After Dr. McLaughlin advised Claimant that she found working part-time to be an

“excellent” idea, Claimant began working there in January 2022. Id. at 59.

Claimant’s duties included driving to hospitals, obtaining death certificates, and

helping vendors and contractors set up funerals. Id. at 60. After feeling considerable

4

In an evaluation form submitted to the Commonwealth’s Municipal Police Officers’

Education and Training Commission on December 17, 2021, Dr. McLaughlin indicated her

“professional opinion that [Claimant] IS experiencing symptoms of [PTSD] and is NOT

CLEARED to perform the full duties of a police officer in Pennsylvania at this time.” C.R., Item

No. 26 (emphasis in original). In an accompanying letter, Dr. McLaughlin explained the

distinction between Acute Stress Disorder (ASD), the symptoms of which are exhibited within a

month of a traumatic event, and PTSD, the symptoms of which are characterized by their

“persistent and disruptive nature.” Id. at 2. While Claimant showed no signs of ASD and could

therefore function normally in the months following the fatal incident, “his symptoms have

increasingly and significantly interfered with his ability to safely execute his job duties.” Id.

8

discomfort in that environment, however, Claimant paused working there after 10 or

15 shifts. Id. Claimant acknowledged that he failed to notify Township officials of

his employment at the funeral home in spite of a policy requiring him to do so

because of his administrative pay. C.R., Item No. 14, 11/2/2022 Hr’g Tr. at 30.

When Superintendent (Supt.) Bernhardt learned that Claimant was working for the

funeral home, he informed Claimant that holding another job while on administrative

leave was frowned upon. Id. Because of that conversation and the aforementioned

difficulties with the work environment, Claimant decided not to resume work at the

funeral home. Id.

At a November 2, 2022 hearing before WCJ DiLorenzo, Claimant recounted

that his full-pay administrative leave ended on September 13, 2022. C.R., Item No.

14, 11/2/2022 Hr’g Tr. at 35. On that date, Claimant received a letter from the

Township informing him that he was being placed on sick leave, as his workers’

compensation claim had recently been denied. Id. Claimant also underwent elbow

surgery by Dr. Paiste on October 13, 2022, and a slow recovery from that operation

rendered Claimant further doubtful of his ability to return to full-duty work. Id. at

40.

B. Supt. Bernhardt’s Testimony

At an April 26, 2023 hearing, Supt. Bernhardt testified that he had served as

Superintendent, the Township’s top-ranking police official, since 2019. C.R., Item

No. 15, 4/26/2023 Hr’g Tr. at 6. Supt. Bernhardt explained that all Township police

officers must undergo yearly firearms training, which is based on whatever handgun

or rifle the officer is assigned. Id. at 8. Officers are also required to undergo use-

of-force training, which is designed to assist officers in handling “individuals who

don’t want to comply” and in de-escalating situations of noncompliance. Id. Supt.

9

Bernhardt noted that the canine division undergoes an additional round of training

to handle their dog companions, and that Claimant served as a trainer and instructor

in that division. Id. at 8.

Recounting the events of November 20, 2020, Supt. Bernhardt explained that

he first became aware of Mr. Laudermilt’s presence in the Township one week

before, when he received word that Mr. Laudermilt could be in the area, was wanted

on “multiple outstanding warrants,” and was “known to be violent.” Id. at 9.

Regarding the violent encounter between Mr. Laudermilt and Claimant, Supt.

Bernhardt testified that it was “something that police officers in [the] Township are

trained to deal with.” Id. at 10. Supt. Bernhardt characterized the incident as

“normal” for Township officers, particularly in recent years, as he believes lethal

encounters between officers and suspects have become more common nationwide.

Id. at 10. On cross-examination, Supt. Bernhardt acknowledged that the death of

Mr. Laudermilt was the only occasion since he became Superintendent that a

Township officer was forced to take someone’s life. Id. at 32. At that point in the

cross-examination of Supt. Bernhardt, WCJ DiLorenzo interrupted Claimant’s

counsel to make the following remark:

[Counsel,] are you going to argue that when a police officer discharges

a firearm in pursuit of a suspect, that’s an unusual and abnormal

working condition? Is that where you’re going with this? Because I’m

Philadelphia born and raised[,] I’ve been living out here for quite a

while, and to me, that does not seem, in this area, [] to be unusual and

abnormal.

Id. at 32-33. Claimant’s counsel responded that he was not asking about the

abnormality of the need to discharge a firearm but of the need to kill a suspect. Id.

at 33. Counsel then asked Supt. Bernhardt how many times he has discharged a

10

service firearm in his 27 years as an officer; Supt. Bernhardt acknowledged that he

never has discharged a service firearm while on duty. Id.

C. Dr. Solomon’s Testimony

During a March 1, 2023 telephone deposition, Dr. Solomon testified that he

is a licensed clinical psychologist specializing in behavioral medicine. C.R., Item

No. 28, Solomon Dep. at 5. Dr. Solomon summarized his understanding of the

November 20, 2020 incident as follows:

[Claimant] came across a suspect wanted on a warrant. He pursued the

actor on foot. When he caught up to him[,] he instructed the actor to

put his hands up. The actor responded, “I’m going to kill you.” . . .

[Claimant] tased the actor. A violent struggle with this actor ensued

with the suspect attempting to take [Claimant’s] service revolver.

[Claimant] shot and killed the actor [and] sustained physical injuries to

his left shoulder, right elbow and neck.

Id. at 9-10. It was Dr. Solomon’s understanding that Dr. McLaughlin “deemed

[Claimant] fit for duty” immediately following the incident. Id. at 11. Dr. Solomon

went on to explain that “[Claimant] reported he initially self-medicated at that time

with increased alcohol consumption.” Id. Following a December 17, 2021

reevaluation of Claimant’s mental state, Dr. McLaughlin found Claimant no longer

“psychologically fit for a return to duty.” Id. at 11-12. Dr. Solomon recalled that

Claimant “initially self-medicated” during the intervening period but “was

eventually able to return to his premorbid level of alcohol consumption.” Id. at 11.

In Dr. Solomon’s view, Claimant was taken off work because he “presented a

symptom complex consistent with a diagnosis of [PTSD] and a depressive disorder.”

Id. at 12.

Following a March 28, 2022 initial evaluation, Dr. Solomon concluded that

Claimant exhibited a “symptom complex” similar to the one described in Dr.

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McLaughlin’s evaluation from the previous December. Id. Specifically, Dr.

Solomon found the following symptoms to be present in Claimant: (1.) feelings of

depression; (2.) nightmares; (3.) flashbacks or intrusive memories of the traumatic

event; (4.) frequent crying; (5.) significant mood swings; (6.) anxiety; (7.)

psychological distress “to cues that symbolize some aspect of the traumatic event”;

(8.) avoidance of stimuli that were associated with the traumatic event; (9.) an

inability to experience positive emotions with activities that had previous elicited

those emotions; (10.) irritability; (11.) decreased libido; (12.) hypervigilance; (13.)

an exaggerated startle response; (14.) difficulty with concentration; (15.) sleep

dysfunction; and (16.) a sense of impending danger. Id. at 19. Dr. Solomon

explained that the foregoing symptoms are precisely of the kind recognized in his

field as warranting further investigation for a possible PTSD diagnosis. Id. at 20.

Accordingly, Dr. Solomon administered a PTSD Checklist 5 (PCL-5) test,

which is routinely used to make a more formal determination of whether a patient

suffers from PTSD. Id. at 20-21. Dr. Solomon explained that any PCL-5 score of

30 or more “is considered clinically significant”; Claimant’s score was 41. Id. at 21.

Following the PCL-5, Dr. Solomon administered a generalized anxiety disorder 7

(GAD-7) test, also customary in his field, which revealed “significant levels of

symptoms of anxiety” in Claimant. Id. at 23. After the GAD-7 test, Dr. Solomon

administered a patient health questionnaire 9 (PHQ-9) test to screen for symptoms

of depression; Claimant’s score was found “to be clinically significant.” Id. at 23.

Dr. Solomon juxtaposed these findings with the lack of any psychiatric issues in

Claimant’s medical history before 2020. Id. at 21-22. In Dr. Solomon’s view, “a

consistent picture” was forming of “multiple symptoms” consistent with PTSD. Id.

at 21. Following his initial findings, Dr. Solomon has engaged in weekly telehealth

12

sessions with Claimant, which has given Dr. Solomon “the opportunity to see the

significance of these symptoms that [he] listed in [his] initial report[ and] how much

they intrude . . . in his life in all spheres.” Id. at 38.

Based on his review of the records and regular sessions with Claimant, Dr.

Solomon opined that Claimant continues to endure “symptoms consistent with

[PTSD]” and that “the November 20, 2020 violent physical struggle . . . caused the

manifestation of the symptoms of PTSD.” Id. at 36. Dr. Solomon did not believe

that the “delayed onset” of symptoms cast doubt on his diagnosis; to the contrary,

“the day after a trauma occurs—no matter how severe—it would be . . . unusual to

see an individual meet all the criteria for the symptoms required to make that

diagnosis.” Id. at 30-31. It is “more typical,” he explained, that the symptoms begin

to surface “as the days and the weeks go by.” Id. at 31. Dr. Solomon also cautioned

against the assumption that certain events, such as a violent fatality, will

automatically lead to PTSD symptoms, since trauma responses are highly specific

to the individual; yet, in Claimant’s case, Dr. Solomon does “believe that the

outcome of a fatality where [Claimant] had to discharge his service revolver

certainly contributed significantly” to Claimant’s PTSD symptoms. Id. at 36-37. If

Claimant continues to experience chronic physical pain as a result of the encounter,

Dr. Solomon believed that it may “also contribute to the psychological symptoms

that led to the diagnosis of PTSD.” Id. at 33.

Concerning prognosis, Dr. Solomon expressed the hope that with continued

treatment, Claimant’s PCL-5 score will “go down over time,” but admitted that the

score has most recently gone up.5 Id. at 24-25. Because of the persistence of

5

Dr. Solomon was referring to his most recent application of the PCL-5 criteria to evaluate

Claimant, which resulted in a score of 59. Solomon Dep. at 25. However, Dr. Solomon cautioned

(Footnote continued on next page…)

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Claimant’s symptoms at the time of his testimony, Dr. Solomon opined that

Claimant “is totally disabled from returning to his prior work.” Id. at 38. Indeed,

while Dr. Solomon was hopeful that “some form of gainful activity . . . could be a

consideration in the future,” he believed that Claimant was “fully disabled from

working in any capacity” at the time of the deposition. Id. at 39-40.

D. Dr. Paiste’s Testimony

At a February 14, 2023 deposition, Dr. Paiste testified that he is a board-

certified orthopedic surgeon specializing in “surgery of the upper limb from the

shoulders to the hands.” C.R. Item No. 27, Paiste Dep. at 5-6. Dr. Paiste’s

understanding of the November 20, 2020 incident was that Claimant was involved

in a “violent, prolonged[,] and strenuous physical altercation” during which a

suspect “persistently attempted to grab [Claimant’s] service revolver,” as a result of

which Claimant “had no choice but to shoot and kill the suspect in order to save his

own life.” Id. at 12. Since that incident, Claimant has “multiple pain complaints,”

beginning with the neck pain, left wrist pain, and hand pain for which he was treated

at Penn Presbyterian on the afternoon of the incident. Id. at 13.

To treat his continued pain symptoms, Claimant met with Dr. Paiste, who

performed an initial evaluation on March 9, 2022, and found “ongoing left shoulder

pain that was worse with overhead activities, reaching, lifting, and sleeping at

night[,] especially on his left side.” Id. at 13-14. Claimant also exhibited difficulties

with lifting and gripping in his right hand, as well as numbness and tingling that was

“worse at nighttime.” Id. at 14. Dr. Paiste noted that Claimant denied having any

of these issues before the November 20, 2020 incident. Id. Since the initial

against the assumption that Claimant’s condition is necessarily worsening, since PTSD symptoms

“will wax and wane” and are “not going to be at the exact same level each and every week.” Id.

at 24.

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evaluation, Dr. Paiste has continued to treat Claimant on more than a dozen

occasions, most recently on February 3, 2023. Id. at 14-15. Dr. Paiste performed

surgery on Claimant’s right elbow in October 2022, and administered steroid

injections in his left shoulder on April 4, 2022, and October 4, 2022. Id. at 16, 23.

Concerning the etiology of Claimant’s symptoms, Dr. Paiste opined that they

are “post[-]traumatic in nature,” particularly given that Claimant “had no prior left

shoulder problems before the [November 20, 2020] incident.” Id. at 36. Dr. Paiste

further concluded that the surgery he performed on Claimant’s right elbow was

necessitated by that incident. Id. at 42. Concerning prognosis, Dr. Paiste opined

that Claimant “remains symptomatic and still requires ongoing treatment[,]

including surgical intervention.”6 At the time of the deposition, Dr. Paiste was

convinced that Claimant was unable to return, “and remains disabled from

returning[,] to his preinjury job as a police officer.” Id. at 53.

E. Dr. Didizian’s Testimony

At an April 26, 2023 deposition, Dr. Didizian testified that he is a board-

certified orthopedic surgeon whose practice is currently limited to examining

orthopedic patients. C.R., Item No. 36, Didizian Dep. at 9. Dr. Didizian performed

an independent medical examination (IME) of Claimant on September 7, 2022,

which began with a discussion of Claimant’s medical history and the November 20,

2020 incident. Id. at 14-15. Following the examination itself, Dr. Didizian ruled

out the existence of any cervical pathology, chronic damage to Claimant’s shoulders

or arms, carpal tunnel syndrome, or ulnar tunnel syndrome. Id. at 43. Based on his

IME findings as well as the fact that Claimant resumed full-duty work for nine

6

Here, Dr. Paiste was referring to surgery that he planned to perform on Claimant’s left

shoulder to remove “inflamed or frayed or damaged tissue.” Paiste Dep. at 43. Dr. Paiste

attributed the need for that surgery to the November 20, 2020 incident. Id. at 44.

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months in 2021, Dr. Didizian concluded that Claimant “was fully recovered from

the injuries of [November 20, 2020].” Id. at 47. Dr. Didizian opined that, if

Claimant sustained any injuries on the day of the incident, they most likely consisted

of a soft-tissue sprain or strain of soft tissue, which typically resolves within four to

six weeks. Id. at 44, 62-63.

F. WCJ DiLorenzo’s Decision

In a September 15, 2023 decision, WCJ DiLorenzo denied and dismissed the

Review and Claim Petitions. WCJ Decision, Order. Regarding the Review Petition,

WCJ DiLorenzo pointed out that Claimant bore the burden of proving that the NTCP

was materially incorrect. Id., Conclusion of Law (C.L.) No. 5. WCJ DiLorenzo

found that Claimant failed to do so, “particularly [in light of] Dr. Didizian’s

testimony.” Id.

Regarding the Claim Petition, WCJ DiLorenzo first summarized the elements

of a psychological injury claim under the “physical/mental” analysis. WCJ

DiLorenzo then stated that

Claimant didn’t sustain [his] burden and establish his entitlement to

workers’ compensation for the alleged work injury on November 20,

2020[,] under the physical/mental standard and on the basis of his lack

of treatment on or about November 20, 2020, until March 3, 2022[,] by

Dr. Paiste, and before any diagnosis of [PTSD].

Id., C.L. No. 3. WCJ DiLorenzo then summarized the elements of a claim under the

“mental/mental” analysis and concluded that Claimant failed to meet his burden in

that regard as well, particularly in light of Supt. Bernhardt’s testimony. Id., C.L. No.

4.

Regarding the fact witnesses, WCJ DiLorenzo first noted her finding that

Claimant was “credible to an extent,” particularly with regard to his recollection of

16

the November 20, 2020 incident. Id., F.F. No. 18. However, WCJ DiLorenzo found

Claimant not credible with regard to any lingering injuries to his left shoulder or

elbow, since his complaints were not corroborated by the medical records from Penn

Presbyterian, the report completed by Township police immediately following the

incident, or by Dr. Didizian’s testimony. Id., F.F. No. 19. WCJ DiLorenzo also

found Claimant

not credible about his continued visits until April 2022 with Dr.

McLaughlin and worsening mental condition from March 1, 2021[,] to

December 17, 2021[,] because Dr. McLaughlin didn’t testify at all, let

alone about the aforesaid, and because Dr. Solomon didn’t attest to a

worsening of [] Claimant’s condition during [his] work from March 1,

2021[,] to December 17, 2021.”

Id. By contrast, WCJ DiLorenzo found Supt. Bernhardt “entirely credible,”

particularly on the subject of “yearly training for firearms and the use of force for

violent subjects.” Id., F.F. No. 20. “With his vast experience and reputable

background and with no expert opinion to the contrary,” WCJ DiLorenzo continued,

“[Supt.] Bernhardt is especially credible when he testified that it’s not uncommon

for a police officer in this day and age to have to discharge a firearm and to take

someone’s life in this country where we live.” Id.

Regarding the medical experts, WCJ DiLorenzo credited Dr. Didizian’s

testimony over Dr. Paiste’s on the ground that the former “has better credentials for

the determination and causation of upper extremity, inclusive of elbow and shoulder,

injuries” such as those allegedly sustained by Claimant. Id., F.F. No. 21. As for Dr.

Solomon’s testimony addressing Claimant’s claim of mental injuries, WCJ

DiLorenzo found it not credible for the following reasons:

17

1.) Dr. Solomon testified that the Claimant sustained physical injuries

to the left shoulder, right elbow, and neck but the [NTCP] listed injuries

to the throat, neck, and left hand and didn’t list the right elbow, the [ER]

records listed complaints about the neck and left wrist, hand, and

shoulder pain and didn’t mention the Claimant’s right elbow and a

diagnosis besides an assault as opposed to injuries, and the [Incident

Report] mentioned alleged injuries to the Claimant’s throat, neck, left

hand, and shoulder and all of those statements negated Dr. Solomon’s

understanding of the Claimant’s alleged injuries; 2.) Dr. Solomon

testified that the Claimant “initially self-medicated” at the time of Dr.

McLaughlin’s examination on November 24, 2020 but the Claimant’s

testimony established self[-]medication with alcohol after the

Claimant’s return to work sometime during the period from March 1,

2021 to December 17, 2021 and didn’t support Dr. Solomon’s history;

and 3.) Dr. Solomon testified that on March 28, 2022, the Claimant

displayed symptoms of anhedonia or lack of positive emotions with

activities with previous positive emotions and decreased libido, among

others, but the Claimant’s testimony didn’t mention any of the aforesaid

and all of Dr. Solomon’s delineated symptoms in support of Dr.

Solomon’s testimony.

Id., F.F. No. 22. Accordingly, WCJ DiLorenzo rejected Dr. Solomon’s conclusion

that Claimant suffered from PTSD and reasoned that there was no “compensable

mental injury as a result of the incident on November 20, 2020.” Id.

Claimant appealed to the Board, arguing, inter alia, that WCJ DiLorenzo

capriciously disregarded Dr. Solomon’s “uncontroverted” testimony, failed to

provide adequate reasoning for her partial rejection of Claimant’s or Dr. Paiste’s

testimony, and erroneously concluded that the NTCP’s injury description was

accurate. C.R., Item No. 9. The Board affirmed by a 4-2 vote. See C.R., Item No.

11. In a dissent, joined by Commissioner Gabig, Commissioner Krebs reasoned that

the injuries acknowledged in the NTCP constitute “a sufficient physical stimulus for

a physical/mental claim.” Id. at 25 (citing Sch. Dist. of Phila. v. Smith (Pa. Cmwlth.,

18

No. 1113 C.D. 2022, filed Aug. 22, 2023) (unreported), 2023 WL 5355360).7

Commissioner Krebs also noted that he “would remand for the WCJ to revisit the

PTSD claim.” Id. This appeal followed.8

II. Issues

On appeal, Petitioner argues that WCJ DiLorenzo erroneously applied the

mental/mental burden of proof to his mental injury claim rather than the appropriate

physical/mental burden of proof. In the alternative, Petitioner asserts that even if the

mental/mental standard had been correctly applied, the record clearly indicates that

he endured abnormal working conditions in the November 20, 2020 incident.

Finally, Petitioner argues that WCJ DiLorenzo’s decision contravenes the Act’s

humanitarian purposes.

7

In Smith, this Court considered the case of a teaching assistant who, while eight months

pregnant, was punched in the stomach by a student after she denied his request to share her lunch

with him. Slip op. at 2-3. After monitoring the claimant for four hours out of concern that her

placenta could rupture, the school nurse sent her home with instructions to take Tylenol for her

pain. Id., slip op. at 3. Although the claimant fully recovered from the physical injury, she was

diagnosed with PTSD due to anxiety, lack of sleep, and flashbacks from the school incident. Id.,

slip op. at 4. The claimant, who did not return to work, prevailed before a WCJ and was awarded

disability benefits on the basis of a physical/mental injury; after remanding for reasons not

pertinent here, the Board affirmed. Id., slip op. at 9-10. On the employer’s appeal, we affirmed,

holding that the physical mental standard does not require a claimant to have “suffer[ed] a

disabling injury” or to have “receiv[ed] extensive and/or repeated medical treatment for a work-

related injury.” Id., slip op. at 18.

Unreported opinions of this Court filed after January 15, 2008, may be cited for their

persuasive value. Pa.R.A.P. 126(b); 210 Pa. Code § 69.414(a).

8

This Court’s review is limited to determining whether the necessary findings of fact were

supported by substantial evidence, constitutional rights were violated, or errors of law were

committed. Borough of Heidelberg v. Workers’ Comp. Appeal Bd. (Selva), 928 A.2d 1006, 1009

(Pa. 2007).

19

III. Discussion

Workers’ compensation claims involving mental injuries fall into one of three

categories: (1) mental/physical injuries, where a psychological stimulus causes a

physical injury; (2) physical/mental injuries, where a physical stimulus causes a

psychic injury; and (3) mental/mental injuries, where a psychological stimulus

causes a psychic injury. Ryan v. Workers’ Comp. Appeal Bd. (Cmty. Health Servs.),

707 A.2d 1130, 1133-34 (Pa. Cmwlth. 1998). When 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 v. Workers’ Comp. Appeal Bd. (Ace Check Cashing, Inc.),

110 A.3d 227, 234 (Pa. Cmwlth. 2015). In other words, a claimant must prove that

a physical work injury requiring medical treatment caused a psychological injury.

Frankiewicz v. Workers’ Comp. Appeal Bd. (Kinder Morgan, Inc.), 177 A.3d 991,

996 (Pa. Cmwlth. 2017). Conversely, a claimant will be entitled to compensation

for a mental/mental injury if he can demonstrate that the injury resulted from

abnormal working conditions, not merely the result of a subjective reaction to

normal working conditions. RAG (Cyprus) Emerald Res., L.P. v. Workers’ Comp.

Appeal Bd. (Hopton), 912 A.2d 1278, 1286 (Pa. 2007). The determination of

whether a claimant established an abnormal work condition is a question of law that

is fully reviewable on appeal. McLaurin v. Workers’ Comp. Appeal Bd.

(Southeastern Pa. Transp. Auth.), 980 A.2d 186, 189 (Pa. Cmwlth. 2009).

A. The Physical/Mental Standard

Claimant first argues that WCJ DiLorenzo “committed clear errors of law by

denying [him] the physical/mental burden of proof in this matter.” Claimant’s Br.

at 21. For factual support, Claimant turns to the Incident Report “confirming the

20

violent struggle” in which he was engaged on November 20, 2020, as well as the ER

records showing that he presented “after an assault at work” with complaints of

“neck pain, left wrist pain, hand pain, and left shoulder pain,” as well as the medical-

only NCP listing work injuries. Id. at 19-20. Given the above documentation,

Claimant maintains that his “physical injuries due to the violent assault cannot be

fairly disputed and he is entitled to the physical/mental standard for the PTSD

claim.” Id. at 26.

In further support, Claimant likens his situation to those of successful

claimants in three prior decisions by this Court: Donovan v. Workers’ Compensation

Appeal Board (Academy Medical Realty) 739 A.2d 1156 (Pa. Cmwlth. 1999);

Bartholetti v. Workers’ Compensation Appeal Board (School District of

Philadelphia), 927 A.3d 743 (Pa. Cmwlth. 2007); and New Enterprise Stone & Lime

Company v. Workers’ Compensation Appeal Board (Kalmanowicz), 59 A.3d 670

(Pa. Cmwlth. 2012). In Donovan, we held that injuries sustained by a dentist’s

office janitor from being stuck in the hand with improperly disposed-of hypodermic

needles, though neither “disabling” nor “prolonged,” constituted “injury caus[ing] a

disability as defined by the Act.” 739 A.2d at 1162. In Bartholetti, this Court

reversed the Board and reinstated a WCJ’s award of benefits to the claimant

elementary school teacher, who sustained non-disabling injuries when a fourth-

grader bit her on the forearm and subsequently developed anxiety and depression.

927 A.2d at 748.

Finally, in Kalmanowicz, a road equipment operator was involved in a head-

on collision with an apparently suicidal motorist who died on impact with the

claimant’s vehicle, as the claimant watched. Id. at 672. The claimant’s vehicle

crashed into an embankment as a result of the collision, but the claimant himself

21

managed to crawl away with only bruising and discomfort. Id. at 673. Subsequently,

however, he began exhibiting symptoms of PTSD and was ultimately awarded a

claim petition for mental disability. Id. at 672. Affirming the Board, this Court

held that a “triggering physical event” was sufficient to satisfy the claimant’s burden

of proof under the physical/mental standard. Id. at 677.

We disagree that any of the foregoing cases controls here, because this Court’s

understanding of the physical/mental standard underwent a significant development

with our subsequent Murphy decision. In that case, the claimant was the manager

of a check-cashing business that was subject to an armed robbery on the morning of

June 19, 2010. 110 A.3d at 230. During the robbery, the claimant was forced at

gunpoint to open the business’s safes before being hogtied by the robber. Id. After

the claimant managed to call 9-1-1 with a mobile phone in her pocket and police

arrived, she was taken to a hospital for chest pains and trouble with breathing and

speaking. Id. Two days later, the claimant visited her family physician with

complaints of pain in her upper back, shoulders, and neck. Id. Meanwhile, her

employer issued a notice of compensation denial, prompting a claim petition by the

claimant. Id. Applying the mental/mental burden of proof, a WCJ denied the claim

petition on the ground that an armed robbery did not constitute an abnormal working

condition. Id. at 233. On appeal, the Board held that the WCJ’s application of the

mental/mental standard was in error but nonetheless affirmed on the ground that the

claimant’s injuries were insufficient for a physical/mental claim. Id. The claimant

appealed to this Court.

Vacating the Board’s order, we held in Murphy that the physical injury under

the physical/mental standard need not be disabling, but that it must have required

medical treatment. Id. at 237. We explained that the claimant’s mental injury was

22

attributable to “her entire experience of the June 19, 2010 armed robbery” rather

than the “slight bruising” sustained in the incident. Id. at 238. Thus, we concluded

that minor physical harm which is ancillary to an emotionally upsetting experience

is insufficient to meet the physical stimulus requirement. As Senior Judge

Leadbetter observed in her concurring opinion in Murphy, “the distinction between

physical/mental and mental/mental injuries would be unmanageably blurred if a

‘physical stimulus’ which caused little or no physical injury, and did not cause the

mental injury but only occurred incidental to a traumatic event, would transform a

mental/mental claim into a physical/mental claim.” Id. at 241 (conc.).

In this case, WCJ DiLorenzo correctly pointed out that the files from the Penn

Presbyterian ER recorded only complaints of soreness and pain and that, without any

treatment administered, Claimant was discharged and permitted to walk out on his

own. See WCJ Decision, F.F. No. 17. Thus, WCJ DiLorenzo properly concluded

that Claimant was “overall well on November 20, 2020, and . . . wasn’t diagnosed

with any medical condition” on that day. Id. In other words, Claimant’s pain and

soreness complaints, like the Murphy claimant’s symptoms, were secondary to a

mentally injuring event and were themselves not serious enough to require medical

treatment. We therefore conclude that the physical/mental standard is inapplicable

to the instant matter.9

9

Claimant also relies on Smith, the case cited by Board Commissioner Gabig in his dissent

below. While we acknowledge that the claimant in that case prevailed even though her injuries

were neither prolonged nor serious, we must decline to give credence to Claimant’s arguments on

that basis, since Smith is an unreported decision and not binding on this Court.

Furthermore, Smith’s analysis appears to sidestep this Court’s more recent physical/mental

case law by relying primarily on pre-Murphy precedents, primarily Kalmanowicz. As President

Judge Cohn Jubelirer noted in a dissenting opinion, it is “inconsistent with our case law to hold

that four hours of observation and advice to take over-the-counter medication for discomfort, if

needed,” is sufficient for the physical/mental standard, and that doing so “eviscerate[s] the current

(Footnote continued on next page…)

23

B. The Mental/Mental Standard

We next address Claimant’s argument that, even if the mental/mental standard

is the correct one in this case, he should still prevail. In his Brief, Claimant observes

that an employee who brings a disability claim under the mental/mental standard

must establish that the incident whence the injury arose “was abnormal,” that a

psychological injury has been verified, and that the injury has been traced to an

identifiable source—i.e., the abnormal work event. Claimant’s Br. at 28 (citing

Payes v. Workers’ Compensation Appeal Board (PA State Police) (Payes II), 79

A.3d 543, 555-56 (Pa. 2013)). In Claimant’s view, uncontested evidence “confirms

that the physical life[-]and[-]death struggle that ended with a perpetrator’s death is

objectively an abnormal event” and, furthermore, that Claimant’s disabling PTSD

symptoms are traced to that event. Id. at 31. We therefore evaluate both of these

claims.

1. The Abnormal Working Condition

After this Court held in Murphy that the physical/mental standard was

inapplicable, we remanded with the instruction that a WCJ reconsider the case in

light of our Supreme Court’s then-recent decision in Payes II. In that case, the

claimant was a 12-year veteran state trooper who was driving on an interstate

highway before dawn when his patrol vehicle struck a woman who had suddenly run

into the road. 79 A.3d at 568-69. The trooper rushed out of the vehicle to attend to

the woman and, in a desperate attempt to revive her, administered mouth-to-mouth

medical treatment requirement by essentially enabling any claimant who suffers a work-related

injury . . . to go to a medical professional to have it examined and be inevitably advised to take

something for pain or follow up if needed, to claim recovery for any resulting mental injury

therefrom.” Smith, slip op. at 3 (Cohn Jubelirer, J., dissenting). Accordingly, we believe that

permitting Claimant to avail himself of the physical/mental standard here would represent an ill-

advised deviation from our most recent case law on the subject.

24

resuscitation. Id. at 569. Simultaneously, the trooper—who stopped his patrol

vehicle in a traffic lane—had to direct oncoming traffic to protect himself and the

dying woman. Id. While the woman was pronounced dead at the scene, the trooper

was taken to a hospital for testing connected to his exposure to the deceased

woman’s blood. Id. The trooper returned to work approximately one month later

but left again due to symptoms that were later recognized to be consistent with

PTSD. Id. Applying the mental/mental standard, a WCJ awarded a claim petition

on the ground that “the particular work-related mental stimulus . . . was not one

normally encountered by or expected of state troopers.” Id. at 571. The Board

reversed, holding that, while “being involved in a fatal accident may be traumatic

and not routine for a state trooper, [the Board] cannot agree that [the] incident

constitutes an abnormal working condition.” Id. at 571-72.

Affirming the Board, this Court noted that a state trooper “can be expected to

be witness to horrible tragedy.” Payes v. Workers’ Comp. Appeal Bd.

(Commonwealth of Pa./State Pol.) (Payes I), 5 A.3d 855, 861 (Pa. Cmwlth. 2010).

Reasoning that “it is not beyond the realm of possibility for an officer to have to take

someone’s life,” we noted that a trooper’s attempt to administer mouth-to-mouth

resuscitation “[did] not appear extraordinary for a police officer,” that “a person

dying following a failed attempt at resuscitation is something that can be expected

to occur in a police officer’s line of work,” and that there was “no question that any

resulting psychological injury would not be compensable” had it not been the

trooper’s own patrol vehicle that had struck the deceased woman. Id. at 861. This

Court further pointed out that the record implied the occurrence of one other incident

where someone was fatally struck by a state trooper’s patrol vehicle. Id. at 862.

25

Thus, we concluded that “the facts as a whole show the relative ‘ordinary’ nature of

the events that transpired in this case.” Id.

The trooper appealed to our Supreme Court, which noted that, “[a]lthough the

ultimate determination of whether an employee has established “abnormal working

conditions” is a question of law reviewable on appeal . . . ‘psychic injury cases are

highly fact-sensitive[,] and for actual working conditions to be considered abnormal,

they must be considered in the context of specific employment.’” Payes II, 79 A.3d

at 552 (citing Wilson v. Workmen’s Comp. Appeal Bd. (Aluminum Co. of Am.), 669

A.2d 338, 343 (Pa. 1996)). While analyzing that context, the Supreme Court

expressed displeasure with this Court’s approach in Payes I of breaking the entire

incident into component parts, “where each part, standing on its own, might be safely

determined to be a ‘normal’ working condition for a police officer.” Id. at 554.

Dismissing the notion that the incident was in any way routine for a state trooper,

the Supreme Court held:

The fact that another state trooper had once struck a pedestrian does not

make the incident here a “normal” working condition. Abnormal

working conditions need not be “unique” working conditions. . . .

Indeed, by any measure, and irrespective of [the trooper’s] testimony,

what happened here was an extraordinary event. For this reason, we

hold here that as a matter of law, such a singular extraordinary event is

an “abnormal” working condition.

Id. at 556 n.8 (emphasis added). Accordingly, the Supreme Court reversed this

Court and reinstated the WCJ’s award of benefits. Id. at 557.

In this case, Claimant maintains that his “uncontested diagnosis with PTSD

and disability were caused by rare and objectively abnormal events for a police

officer.” Claimant’s Br. at 35. Claimant likens the November 20, 2020 incident to

the one encountered by the state trooper in Payes, calling his own experience “highly

26

unusual and singular.” Claimant’s Br. at 33 (citing Payes II, 79 A.3d at 556). In

Claimant’s view, Supt. Bernhardt’s testimony actually buttresses this contention,

because Supt. Bernhardt acknowledges that Township police officers “do not shoot

people regularly” and that Supt. Bernhardt himself has never discharged a service

weapon while on duty in his 27 years in law enforcement. Id. Claimant contends

that the only way WCJ DiLorenzo could have reached a contrary conclusion is by

relying on her subjective belief that discharging a firearm “does not seem . . . to be

unusual and abnormal.” 4/26/2023 Hr’g Tr. at 33.

We agree with Claimant. WCJ DiLorenzo’s finding that the November 20,

2020 incident “was a normal[-]type condition for a police officer who works in [the]

Township,” WCJ Decision, F.F. No. 7(e), is erroneous for two main reasons. The

first is that WCJ DiLorenzo focuses on one aspect or another of the incident rather

than the full convergence of events. For example, in Finding of Fact 7(e), WCJ

DiLorenzo characterizes the incident as one in which Claimant “discharged his

firearm.” It has never been Claimant’s contention in this case that the November 20,

2020 incident was abnormal strictly because of the necessity of using his firearm, or

even strictly because of the necessity of taking someone’s life. To frame it as such

is to engage in the flawed reasoning that our Supreme Court cautioned against in

Payes II, because it casts the full incident in a deceptively “normal” light.

The second reason that WCJ DiLorenzo’s conclusion is erroneous is that it is

not even supported by the testimony cited as its basis. Supt. Bernhardt’s bare

assertion that such incidents as the one that occurred November 20, 2020, can be

normal for a Township police officer is belied by his acknowledgement that there

has been no other fatal officer-involved shooting in the Township in the years since

he became Superintendent, that Claimant has only discharged his service weapon on

27

3 or 4 occasions in the past, and that Superintendent has never discharged his own

while on duty in his 27 years as a law enforcement officer. On November 20, 2020,

Claimant not only discharged his service weapon, but was forced into hand-to-hand

combat with Mr. Laudermilt, placed into a chokehold so aggressive that he was lifted

off the ground, was nearly deprived of his duty belt when Mr. Laudermilt pulled it

away with such force that Claimant’s belt loops were torn, and nearly lost control of

his service weapon, which placed him in reasonable fear that his own death was

imminent. Once Claimant reasserted control of his service weapon, he had to shoot

Mr. Laudermilt at such close range that he witnessed changes in Mr. Laudermilt’s

facial expressions and movements in the fabric of his shirt; subsequently, Claimant

tried (like the trooper in Payes II) to perform life-saving measures in an attempt to

keep the bloodied Mr. Laudermilt alive but did not succeed. Nowhere in Supt.

Bernhardt’s testimony is there support for the notion that this chain of events is of a

kind that a Township police officer, or any police officer, may normally expect to

encounter at the beginning of a workday; to the contrary, his testimony militates

against such a conclusion.

We acknowledge that mental injury cases are “highly fact-sensitive,” Payes II

at 552, and that such a fact-intensive inquiry normally calls for deference to the

WCJ’s factual findings.10 Nonetheless, we reiterate that “the ultimate determination

10

The Dissent contends that the November 20, 2020 event cannot be considered an abnormal

working condition because it “remains within the type of event that law enforcement officers

unfortunately encounter in the performance of [their] duties.” Russo v. Upper Darby Twp.

(Workers’ Comp. Appeal Bd.), ___ A.3d ___ (Pa. Cmwlth., No. 1093 C.D. 2024, filed December

5, 2025) (Fizzano Cannon, J., concurring/dissenting), slip op. at 3. Claimant, in the Dissent’s view,

was engaged in nothing other than “police work” when he was injured—in contrast to the claimant

in Payes II, whose accident “could have happened to any driver on the highway at that moment.”

Id. The Dissent thus likens the fact pattern in this case to those “collected in Payes II where

benefits have been denied to law enforcement officers” who were engaged in similarly foreseeable

(Footnote continued on next page…)

28

of whether an employee has established ‘abnormal working conditions’ is a question

of law reviewable on appeal.” Id. In this instance, the underlying facts are so

egregious, and WCJ DiLorenzo’s effort to maintain a contrary conclusion so lacking

in support, that we hold as a matter of law that Claimant was subject to abnormal

working conditions on November 20, 2020.

activities. Id. These include the case of a police officer who arrived in response to a call upon a

scene where two fellow officers were seriously injured (Rydzewski v. Workers’ Compensation

Appeal Board (City of Philadelphia), 767 A.2d 13, 13 (Pa. Cmwlth. 2001)); that of an officer who

was embroiled in a scuffle with a gun-wielding suspect before subduing him and taking him into

custody (Young v. Workers’ Compensation Appeal Board (New Sewickley Police Dep’t), 737 A.2d

317, 318 (Pa. Cmwlth. 1999)); that of an officer whose fatal shooting of an unarmed suspect was

followed by criminal charges for the officer, a trial, and “a great deal of media scrutiny” (City of

Philadelphia v. Workers’ Compensation Appeal Board (Brasten), 728 A.2d 938, 940 (Pa. 1999));

and that of an officer whose preexisting anxiety and depression were exacerbated by his

involvement in an eight-hour standoff with a barricaded gunman (Parson v. Workmen’s

Compensation Appeal Board (Springettsbury Township), 642 A.2d 579, 580 (Pa. Cmwlth. 1994)).

The Majority rejects the suggestion that any incidents falling within the scope of a law

enforcement officer’s duties cannot also constitute an abnormal working condition. Such a blunt

conclusion would run afoul of our Supreme Court’s clear instruction in Payes II to avoid imposing

“a bright line test or a generalized standard” when classifying working conditions as normal or

abnormal. Payes II, 79 A.3d at 552 (citing RAG (Cyprus) Emerald Res., 912 A.2d at 1288). As

explained supra, the Majority’s conclusion that Claimant experienced an abnormal work event is

based on the full convergence of events that transpired on that day. Rydzewski is distinguishable

because the officer in that case was not involved in the action that left his fellow officers injured.

Young is distinguishable because no lives were lost in the scuffle between the officer and the

suspect in that case. Brasten is distinguishable because the mental injury claim in that case was

focused entirely on “the events subsequent to the shooting,” i.e., the criminal proceeding and media

coverage. 728 A.2d at 940. Parson is distinguishable because that claimant was never engaged

in hand-to-hand combat or placed in reasonable fear for his life.

The learned Dissent’s attempt to place the fact pattern in this case in the above group of

unsuccessful claims only holds water if we were “to disregard the total, singular nature of the event

. . . and to analyze the event as a series of unrelated component parts.” Payes II, 79 A.3d at 548-

49. Such a narrow focus not only runs afoul of our Supreme Court’s clear instruction but loses

sight of the basic question before this Court—i.e., whether what happened in this case “was an

extraordinary event” and therefore “an ‘abnormal’ working condition” as a matter of law. Id. at

586 n.8. And to be clear, the Majority’s conclusion is based on the specific evidence within the

entirety of the record, not just prior case law.

29

2. Claimant’s Medical Evidence

Next, we evaluate Claimant’s contention that he has presented “uncontested”

objective evidence that he suffered a mental injury and resultant disability.

Claimant’s Br. at 36. Generally, a claimant must present unequivocal medical

testimony to establish the causal connection between an alleged injury and the work-

related incident. Indus. Recision Servs. v. Workers’ Comp. Appeal Bd. (Farbo), 808

A.2d 994, 997 (Pa. 2002). As “a fact-sensitive inquiry,” it requires us to defer to the

WCJ’s factual findings, which we may overturn only if they are unsupported,

arbitrary, or capricious. RAG (Cyprus) Emerald Res., 912 A.2d at 1286.

Instantly, WCJ DiLorenzo listed three reasons for her wholesale rejection of

Dr. Solomon’s testimony. First, WCJ DiLorenzo noted discrepancies between the

physical injuries noted by Dr. Solomon and those physical injuries listed on the

NTCP, in the ER records, and in the Incident Report. WCJ Decision, F.F. No. 22.

Second, WCJ DiLorenzo found Dr. Solomon’s chronology flawed when he

recounted “self-medicat[ion]” by Claimant at the time of his first examination on

November 24, 2020, whereas Claimant himself reported self-medication through

alcohol sometime after his March 1, 2021 return to work. Id. Third, WCJ DiLorenzo

found Dr. Solomon not credible because he reported anhedonia, decreased libido,

and other deficits of “positive emotions” in Claimant, while WCJ DiLorenzo did not

recall Claimant addressing that subject in his own testimony. Id.

The reasons cited by WCJ DiLorenzo for rejecting Dr. Solomon’s testimony

are, to put it bluntly, nonsensical. As for the first reason, it is true that there are

discrepancies between Dr. Solomon’s summary of Claimant’s physical injuries and

those given in the ER records, the Incident Report, and the medical-only NCP.

However, there should be no need to point out that Dr. Solomon is a clinical

30

psychologist who has only been called upon to diagnose, treat, and testify on

Claimant’s mental injuries. A reasonable observer would not expect Dr. Solomon

to be deeply familiar with the details of Claimant’s shoulder pain any more than an

orthopedic surgeon would be expected to know Claimant’s PHQ-9 score for

depression symptoms. WCJ DiLorenzo’s critique of Dr. Solomon’s testimony is

even less reasonable in light of the fact that the documents to which she unfavorably

compares Dr. Solomon’s testimony are inconsistent with one another as to

Claimant’s physical injuries.11 In other words, WCJ DiLorenzo applied an arbitrary

level of scrutiny to Dr. Solomon’s testimony that would have been impossible to

satisfy.

The second reason given by WCJ DiLorenzo for rejecting Dr. Solomon’s

testimony stems from a clear mischaracterization of his words. When Dr. Solomon

employed the phrase “at that time” while describing Claimant’s self-medication

through drinking, the context makes clear that he was referring to an indeterminate

point following Dr. McLaughlin’s initial evaluation, not concurrent with that initial

evaluation. WCJ DiLorenzo’s interpretation not only disregards that immediate

context but contradicts a key conclusion of Dr. Solomon’s testimony, which is that

Claimant exhibited a “delayed onset” of PTSD symptoms—that is, surfacing “as the

days and the weeks go by”—rather than in the incident’s immediate aftermath. See

Solomon Dep. at 30-31. Thus, even assuming without conceding that the phrase

cited by WCJ DiLorenzo was a stray inaccuracy, to reject Dr. Solomon’s testimony

on that basis is to disregard “the well-established principle that medical testimony

11

For example, the ER records note “neck soreness” and “shoulder soreness,” while the

medical-only NCP lists a “[s]train or tear” of the shoulder or shoulders and omits any mention of

neck ailments. C.R., Item Nos. 19, 25. Yet, WCJ DiLorenzo credited the former in full, WCJ

Decision, F.F. No. 8, and found the latter “[not] materially incorrect,” F.F. No. 23.

31

and evidence must be viewed as a whole, not as isolated expressions.” Martin v.

Workers’ Comp. Appeal Bd. (Red Rose Transit Auth.), 783 A.2d 384, 389 (Pa.

Cmwlth. 2001).

WCJ DiLorenzo’s third reason for rejecting Dr. Solomon’s opinions betrays

a fundamental misunderstanding of the purpose of expert medical testimony. There

is no principle in our workers’ compensation case law or the Act itself requiring a

claimant to reiterate every point made by his medical witness in his own testimony

in order establish the medical witness’s credibility. That Claimant did not expressly

refer in his testimony to anhedonia—a technical term seldom used in everyday

speech except, presumably, by mental health professionals such as Dr. Solomon—

does nothing to undermine the authority of his expert medical evidence. A

reasonable observer would find it entirely sufficient that Claimant testified at length

about the profound decline in his emotional state before his eventual treatment with

Dr. Solomon. Such elements of Claimant’s testimony corroborate, rather than

undermine, Dr. Solomon’s conclusions.

It should be emphasized that this Court is generally loath to disturb a WCJ’s

factual findings. We must decline to do so as long as “there is substantial evidence

in the record to support those findings.” City of Phila. v. Bell, 335 A.3d 398, 403

(Pa. Cmwlth. 2025). In this case, Claimant presented unrebutted expert testimony

from a medical professional whose competence was never challenged, whose

conclusions were never called into question by another expert’s conclusions, and

whose credibility no valid reason has been given to repudiate.12 That expert testified

12

We further observe that WCJ DiLorenzo’s findings on Dr. Solomon’s testimony, though

styled only as credibility determinations, appear to address the additional issue of his competence.

A medical witness’s testimony is deemed incompetent if “lacks a proper foundation upon which

[his] conclusion could be based,” City of Williamsport v. Workers’ Comp. Appeal Bd. (Cole

(Footnote continued on next page…)

32

unequivocally that Claimant is unable to return to his preinjury job due to his

struggles with PTSD. The record does not support WCJ DiLorenzo’s findings;

rather, it underscores those findings’ flaws. Accordingly, we find that her rejection

of Dr. Solomon’s testimony constituted reversible error.

C. The Act’s Humanitarian Purposes

We now address Claimant’s argument that WCJ DiLorenzo’s decision was

inimical to the humanitarian purposes of the Act. Claimant observes that this Court

has construed the Act liberally in order to further the objective of benefitting workers

who suffer from work-related injuries. In contrast, Claimant argues, WCJ

DiLorenzo’s decision that the violent struggle for his life occurring on November

20, 2020, constitutes a normal working condition “offends the humanitarian

purposes of the Act and is plainly unjust.” Claimant’s Br. at 36-37. If the

uncontested record evidence in this case “does not support the award of benefits to

[him] for PTSD in this instance . . . [then] police officers are completely and unfairly

excluded from receiving benefits for PTSD,” Claimant argues. Id. at 37.

At the outset, we point out that even a strict construction of the Act militates

in favor of reversing WCJ DiLorenzo’s deeply flawed decision. Thus, while it is

true that we have gravitated toward a liberal construction of the Act in order to favor

(Deceased)), 145 A.3d 806, 812 (Pa. Cmwlth. 2016), or if it is based solely on “inaccurate or false

information,” Am. Cont. Enters., Inc. v. Workers’ Comp. Appeal Bd. (Hurley), 789 A.2d 391, 396

(Pa. Cmwlth. 2001). As a question of law, the issue of a medical witness’s competence is fully

reviewable by this Court on appeal. Sarmiento-Hernandez v. Workers’ Comp. Appeal Bd. (Ace

Am. Ins. Co.), 179 A.3d 105, 111 n.7 (Pa. Cmwlth. 2018).

Instantly, Dr. Solomon testified that his conclusions were founded upon his training and

experience as a clinical psychologist and by his treatment of Claimant for his PTSD symptoms.

Furthermore, notwithstanding WCJ DiLorenzo’s ill-founded conclusions to the contrary, there is

no reason to infer that Dr. Solomon’s testimony was based on inaccurate or false information.

Thus, to the extent that WCJ DiLorenzo’s criticisms of Dr. Solomon’s testimony go to his

competence rather than his credibility, we hold as a matter of law that her determinations are

erroneous in that regard as well.

33

the compensation of workers injured on the job, that principle has no bearing on our

holding here. However, we take this opportunity to register our grave concern with

WCJ DiLorenzo’s cavalier treatment of the facts in this case. This is displayed not

only in her written decision but in her interruption of Claimant’s counsel at the April

26, 2023 hearing to editorialize that the discharge of an officer’s weapon did not

seem to her like an abnormal working condition, based on the utterly irrelevant fact

that she is a native of Philadelphia.

We find WCJ DiLorenzo’s outburst to be of particular concern for two key

reasons. The first is that the Act’s regulations are crystal clear that a WCJ is to

“conduct fair and impartial hearings” and to “maintain order.” 34 Pa. Code §

131.43(a). WCJ DiLorenzo failed to carry out these duties when she disrupted the

examination of a witness on a highly sensitive matter in order to provide her own

arguments on the Township’s behalf.

The second reason is that, by focusing on the narrow question of whether the

discharge of an officer’s weapon is abnormal, WCJ DiLorenzo was, again,

exhibiting exactly the kind of myopic and distorted view of the incident that our

Supreme Court warned against in Payes II. If a law enforcement officer’s mental

injury claim is to be analyzed by breaking a traumatic event into constituent sub-

events—any one of which can be reasonably seen as a normal occurrence in their

occupation—then it is difficult to see how law enforcement officers can ever hope

to prevail under the mental/mental standard. As Claimant suggests, this approach

effectively shuts out law enforcement officers from compensation for mental injuries

simply because certain dangerous incidents, such as scuffles with aggressive

suspects, are relatively routine for them. To avoid this clearly unjust result, we hold

that, when two or more such dangers converge into a highly unusual event such as

34

the one that Claimant experienced on November 20, 2020, the event must be

analyzed as a whole in order to determine whether it constitutes an abnormal

working condition.13 We believe that this approach brings our case law into accord

not only with the holding in Payes II but with the Act’s broader humanitarian

purposes.

IV. Conclusion

Under the so-called mental/mental standard, a workers’ compensation

claimant must establish a verifiable psychological injury and a causal connection to

abnormal working conditions. In this case, Claimant presented uncontroverted

evidence that he sustained PTSD as a result of the November 20, 2020 incident and

that the incident was, as a matter of law, abnormal. WCJ DiLorenzo’s conclusions

to the contrary are arbitrary, capricious, and lacking in support in the record. We

therefore reverse and remand to the Board with instructions to remand to a WCJ for

the entry of an order granting Claimant’s Claim and Review Petitions and assessing

13

While we have determined that the November 20, 2020 incident constituted an abnormal

working condition by any reasonable standard, we also recognize the inherent difficulty facing

first responders—for whom mentally disturbing work experiences are not exceptionally rare—in

meeting the relevant burden of proof. The General Assembly has, fortunately, responded to this

issue with the enactment of Section 301(g) of the Act, added by Act of October 29, 2024, P.L.

1079, No. 121, § 2, effective October 29, 2025, 77 P.S. § 415. Relevantly, Section 301(g)(1)

provides that a post-traumatic stress injury, when claimed by a first responder, “shall not be

required to be the result of an abnormal working condition to be a compensable injury under this

[A]ct.” Id. § 415(1).

35

a proper calculation of wage loss benefits, statutory interest, and any other amounts

due.14

_____________________________________

MATTHEW S. WOLF, Judge

14

When this Court holds that a WCJ or the Board has committed reversible error on an issue

involving questions of fact, our ordinary course is to remand with instructions to conduct additional

findings, reconsider the evidence in the record, or to apply the correct legal standard. See, e.g.,

Puhl v. Workers’ Comp. Appeal Bd. (Sharon Steel Corp.), 724 A.2d 997, 1003 (Pa. Cmwlth. 1999)

(reversing the Board’s denial of claimant’s petition; remanding with the instruction that a WCJ

shall hold a new hearing on medical evidence that the WCJ had previously disregarded). Two

particularities of this case render that step largely unnecessary here. First, since we hold as a matter

of law that Claimant was subject to an abnormal working condition, no further action by a

factfinder is needed on that issue. Second, since the Township offered no expert witness of its

own to counter Dr. Solomon’s competent, unambiguous testimony linking Claimant’s abnormal

working condition to his mental injuries, we deem that issue to be waived. Accordingly, the only

factual question remaining involves the proper award of benefits due to Claimant. Cf. Sewell v.

Workers’ Comp. Appeal Bd. (City of Phila.), 772 A.2d 93, 98 (Pa. Cmwlth. 2001) (reversing the

denial of a claim petition on the ground that the WCJ’s decision was unsupported by substantial

evidence; remanding solely to determine “an appropriate award of benefits”).

Lastly, in light of the fact that Claimant did not appeal from WCJ DiLorenzo’s finding that he

did not sustain a disabling elbow injury as a result of the November 20, 2020 incident, it should

be made clear that the Claim and Review Petitions are only to be granted as to his claim of disabling

mental injuries.

36

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Steve Russo, :

Petitioner :

:

v. : No. 1093 C.D. 2024

:

Upper Darby Township (Workers’ :

Compensation Appeal Board), :

Respondent :

ORDER

AND NOW, this 8th day of December 2025, the order of the Workers’

Compensation Appeal Board in the above-captioned matter, dated August 2, 2024,

is hereby REVERSED. The matter is REMANDED to the Workers’ Compensation

Appeal Board, which is instructed to remand the matter to a Workers’ Compensation

Judge for the entry of an order consistent with the foregoing opinion.

Jurisdiction relinquished.

_____________________________________

MATTHEW S. WOLF, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Steve Russo, :

Petitioner :

:

v. : No. 1093 C.D. 2024

: SUBMITTED: June 3, 2025

Upper Darby Township (Workers’ :

Compensation Appeal Board), :

Respondent :

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE MATTHEW S. WOLF, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

CONCURRING OPINION BY

SENIOR JUDGE LEADBETTER FILED: December 8, 2025

I agree with the well-considered majority opinion. However, as Judge

Fizzano Cannon aptly noted, I said the following in Ganley v. Upper Darby

Township (Workers’ Compensation Appeal Board), ___ A.3d ___, ___ (Pa.

Cmwlth., No. 770 C.D. 2024, filed Oct. 22, 2025) (Leadbetter, S.J., concurring), slip

op. at 1-2:

I write separately simply to note my view as to the

continued viability of the “abnormal working conditions”

doctrine. As noted by the majority, since 1972, Section

301(c)(1) of the Workers’ Compensation Act has provided

that, “An injury to an employee [is compensable],

regardless of his previous physical condition, arising in the

course of his employment and related thereto.” Act of June

2, 1915, P.L. 736, as amended, 77 P.S. § 411(1).

Nonetheless, for decades we have required that a claimant

who suffers a disabling mental injury must show not only

that it was caused by his or her employment, but also that

the cause sprang from some “abnormal” working

condition(s). In other words, in contrast to the physical

injury paradigm, a claimant with a more fragile pre-injury

mental state is treated less favorably than his or her more

resilient colleagues because he or she has had a

“subjective” reaction to the event. We understand mental

injuries better today than we did even a few decades ago

and ancient prejudices borne of lack of understanding are

outdated and wrong. I would posit that all emotional

reactions to disturbing events are “subjective” even though

some reactions are more severe than others.

From the beginning, the “abnormal working

conditions” doctrine has been unworkable, causing courts

to struggle to draw elusive distinctions concerning what is

normal or expected in any given line of work based on

highly specific factual details, and too often based on

anecdotal testimony regarding the perceived frequency of

such incidents. What may be a “normal” experience for a

police officer or a school teacher or a cashier in

Philadelphia may be quite rare for such a professional in

suburbia or rural areas, but the traumatic injuries can be

the same and are no less real or disabling than physical

injuries merely because we cannot see them. It seems to

me that refusing to compensate a substantial proven injury

is antithetical to the humanitarian purposes of the Act.

In short, while we are certainly bound by the

precedents cited by the majority, I believe it is time to

scrap the “abnormal working conditions” doctrine

altogether and hold that if there is clear proof of a disabling

work-related mental injury, it should be compensable.[FN]1

[FN]1

As noted by the majority, the General

Assembly has abrogated this rule for first

responders, with certain restrictions. See [Ganley,

___ A.3d at ___ n.10, slip op. at 19]. As this case

illustrates, this is a salutary change in the law.

However, I believe any workers experiencing

mental disabilities from traumatic workplace

events should be treated in the same manner and,

since the “abnormal working conditions”

restriction is a judge-made rule, the courts should

eliminate it.

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita

2 - BBL

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Steve Russo, :

Petitioner :

:

v. :

:

Upper Darby Township (Workers’ :

Compensation Appeal Board), : No. 1093 C.D. 2024

Respondent : Submitted: June 3, 2025

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE MATTHEW S. WOLF, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

CONCURRING AND DISSENTING OPINION

BY JUDGE FIZZANO CANNON FILED: December 8, 2025

I agree with the Majority that the lack of post-incident medical

treatment here indicates that Claimant’s physical pain and soreness were

“secondary” to the mental components of his condition and that the physical/mental

standard for a psychological injury was not applicable here. Majority Opinion, slip

op. at 23.

However, I cannot agree with the Majority that the incident here

qualifies as an abnormal working condition sufficient to support benefits under the

mental/mental theory of recovery for psychological injuries. I do not discount the

facts here or seek to improperly break the event into component parts, “where each

part, standing on its own, might be safely determined to be a ‘normal’ working

condition for a police officer,” an approach that our Supreme Court denounced in

Payes v. Workers’ Compensation Appeal Board (Pa. State Police), 79 A.3d 543, 554

(Pa. 2013) (Payes II).

In Payes II, the incident began when the claimant, a state trooper, was

driving his patrol car on a highway on a dark morning. 79 A.3d at 545. A mentally

ill woman dressed in black, and, therefore, even more difficult to see at the time, ran

out onto the road in front of the claimant’s vehicle. Id. He hit her, pulled over, and

unsuccessfully tried to resuscitate her while keeping oncoming traffic diverted. Id.

The claimant had to be tested to ensure that the woman’s blood on him from the

incident did not transfer any communicable diseases. Id. The claimant was out of

work with permission for about a month, then returned briefly but was unable to

continue due to stress and anxiety from the incident. Id. at 546.

Our Supreme Court ultimately upheld the WCJ’s determination that

state troopers “are not in the normal course of their duties exposed to the

circumstances that occurred in this case; to wit[,] a mentally disturbed individual

running in front of a [t]rooper’s vehicle while he is operating the vehicle, for no

apparent reason.” 79 A.3d at 553. I read Payes II as concluding that what happened

there was not intrinsic to the duties of a law enforcement officer and could have

happened to any other driver on the road at that moment. That it happened to a state

trooper made it abnormal working conditions for him.

Here, Claimant was advised to be “on the lookout” for an armed and

dangerous man who had recently beaten up his girlfriend and was wanted in several

other jurisdictions. Majority Opinion, slip op. at 3. Claimant, alone at the time,

came across the man, attempted to arrest him, and a violent struggle ensued in an

isolated area. Id. During the encounter, the two struggled for Claimant’s service

weapon; he reasonably feared for his life and shot the man at very close range. Id.

Even then, the encounter continued for a time until assistance arrived and subdued

CFC - 2

the man; Claimant tried to resuscitate the man, requiring further personal contact,

but the man ultimately died from Claimant’s gunshot. Id. at 4-5.

Acknowledging that this inquiry is both fact-sensitive and a question of

law, I believe that this incident, replete with terrible facts that cannot be minimized,

remains within the type of event that law enforcement officers unfortunately

encounter in the performance of his or her duties. Police officers face the possibility

of life-and-death situations every day as a necessary part of their work. Indeed, it is

the nature of the danger and trauma inherent in their work that engenders our deep

respect for police and other first responders. Id.

Unlike in Payes II, where the accident could have happened to any

driver on the highway at that moment, this incident would be highly unlikely in a

work context had Claimant not been a law enforcement officer. The cases collected

in Payes II bear out this approach. Law enforcement officers have been awarded

compensation where “a street gang, in retaliation for the officer killing a gang

member in a shootout, placed a bounty on the life or health of the officer and his

family” and where an officer was “subjected to false accusations by the chief of

police, public airing of those accusations, suspension, termination, and stripping of

his duties and authority upon reinstatement and deliberate ostracism instigated by

the chief[.]” 79 A.3d at 552-53. These were truly abnormal working conditions for

a law enforcement officer, not events that were, as the Supreme Court stated in Payes

II, “inherent in police work.” Id. at 553 (characterizing basis for award of benefits

in case where the claimant was “exposed to abnormal working conditions, not events

that were inherent in police work”).

By contrast, the more numerous cases collected in Payes II where

benefits have been denied to law enforcement officers all entailed incidents

CFC - 3

occurring while the claimants were engaged in their law enforcement duties:

responding to a call to assist officers who had been shot and seriously injured;

involvement in a physical altercation arising from an attempt to serve a domestic

violence arrest warrant; fatal shooting of an unarmed suspect followed by a grand

jury investigation, indictment, trial and media attention; and involvement in an eight-

hour standoff involving the officer, other officers, and a barricaded gunman. 79

A.3d at 553. The facts here fit more within the latter category rather than the former

and convince me that this case does not present abnormal working conditions for a

police officer in Upper Darby Township.

My conclusion here does not mean that “any incidents falling within

the scope of a law enforcement officer’s duties cannot also constitute an abnormal

working condition” or disregard the “full convergence of events that transpired” in

this case. Majority Opinion, slip op. at 29 n.10. I simply maintain that depending

on the facts of a given case, what may be abnormal and even traumatic for many,

even most, workers may not be abnormal for law enforcement officers in the course

of their duties, which our Supreme Court recognized specifically in relation to

physical struggles with suspects in Payes II:

The Commonwealth Court also asserted: “Indeed, it is not

beyond the realm of possibility for an officer to have to

take someone’s life.” However, the court plainly meant

here that a police officer might be called upon to take the

life of a suspect during the course of a physical struggle in

furtherance of upholding the law and ensuring the peace.

....

[Payes, however,] did not have a “subjective reaction to

[the] ordinary vicissitudes” of his job, but a reaction to a

highly unusual and singular event.

79 A.3d at 582-83 & 586.

CFC - 4

I note as well the Majority Opinion’s reference to new Section 301(g)

of the Workers’ Compensation Act,1 which provides that a post-traumatic stress

injury, when claimed by a first responder, “shall not be required to be the result of

an abnormal working condition to be a compensable injury under this [A]ct.”

Majority Opinion, slip op. at 34 n.12 (citing 77 P.S. § 415(1)). Unfortunately for

Claimant, Section 301(g) expressly applies only to claims filed after October 29,

2025, and cannot be applied to this case where Claimant filed his claim in 2022.

I also note Senior Judge Leadbetter’s Concurring Opinion in Ganley v.

Upper Darby Township (Workers’ Compensation Appeal Board), --- A.3d ----, ----

(Pa. Cmwlth., No. 770 C.D. 2024, filed Oct. 22, 2025) (Leadbetter, S.J., concurring),

slip op. at 1-2 (joining majority determination that firefighter who developed PTSD

after unsuccessfully attempting to resuscitate two infants within a 16-month period

established abnormal working conditions). Judge Leadbetter critiqued the

“continued viability” of requiring all mental/mental claimants to show abnormal

working conditions, not just first responders who will be exempt going forwards in

light of new Section 301(g). Id.

This requirement does not derive from the Act; it is a “judge-made rule”

adopted by the Pennsylvania Supreme Court decades ago when psychological

conditions were more poorly understood and less likely to be accepted as

compensable work injuries than they are today. Id., slip op. at 2 n.1; see Martin v.

Ketchum, 568 A.2d 159, 165 (Pa. 1990) (adopting “abnormal working conditions”

requirement in mental/mental context). Judge Leadbetter suggested that the time has

come to eliminate this rule, which reflects “ancient prejudices borne of lack of

understanding” that are now “outdated and wrong.” Id., slip op. at 2. Here, Claimant

1

Act of June 2, 1915, P.L. 736, as amended, added by the Act of October 29, 2024, P.L.

1079, 77 P.S. § 415 (effective October 29, 2025).

CFC - 5

has not raised and argued the ongoing validity of this rule as it pertains either to first

responders or to all mental/mental claimants regardless of their employment.

However, I agree with Judge Leadbetter in this regard, add my voice to hers, and

would be open to revisiting this rule in a case where the question is properly before

us.2

__________________________________

CHRISTINE FIZZANO CANNON, Judge

2

I recognize, of course, that as an intermediate appellate court, we are “bound by the

decisions of the Pennsylvania Supreme Court and are powerless to rule that decisions of that Court

are wrongly decided and should be overturned.” Zauflik v. Pennsbury Sch. Dist., 72 A.3d 773,

785 (Pa. Cmwlth. 2013) (quoting Griffin v. Se. Pa. Transp. Auth., 757 A.2d 448, 451 (Pa. Cmwlth.

2000)).

CFC - 6