Huddy v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Judge LEADBETTER.

I agree with the majority that the WCJ erred in requiring employer to pay only 50% of the cost of claimant’s psychiatric treatment. Under the circumstances presented here, employer must be liable for payment of all such expenses, to the extent they are work-related, or none at all, to the extent they are not. I also agree that the Board erred in holding that the record did not support an award of such benefits.

I must respectfully dissent, however, from the majority’s outright reversal of the Board’s decision. Based upon conflicting medical evidence, the WCJ found:

The claimant’s contention that he is and has been experiencing behavioral difficulties warranting the treatment provided by Dr. Geer (previously), and Dr. Richardson, is accepted, however his contention that this treatment has been necessitated exclusively as the result of work injuries giving rise to this claim is not accepted, and the credible evidence of record supports a determination that there have been numerous substantial contributing factors to the difficulties he has been experiencing, such that- these difficulties are not attributable exclusively to the work injuries giving rise to this claim, but rather attributable to, among other things, a familial predisposition to these difficulties, other non-work related stressful and troubling developments in the claimant’s life, inclusive of the death of siblings, and finally, his other non-work related medical difficulties, inclusive of the development of cancer.

*595 Given these considerations, the testimony of Dr. Richardson to the effect that the work injuries giving rise to this claim have contributed to the claimant’s current behavioral difficulties is accepted; but Dr. Burstein’s contention that the other developments, as reviewed above, have played a significant role in the claimant’s current behavioral difficulties, and as such constitutes substantial contributing factors, is also accepted, and is also supported by credible testimony and evidence of record.

WCJ’s opinion at 2, Finding of Fact No. 5. On appeal, the Board reversed the award of psychiatric benefits, holding that:

When a claimant’s mental condition is the result of both work-related and non-work-related factors, the claimant must prove that his physical work injury was a substantial contributing factor among the non-work-related causes in bringing about his mental injury. See Taulton v. Workers’ Compensation Appeal Board (USX Corp.), 713 A.2d 142 (Pa.Cmwlth.1998). It is insufficient to show that the claimant’s physical work injury was merely a contributing factor. See Id.

[W]e have determined that the credible evidence does not establish Claimant’s 1993 work injury was a substantial contributing factor to his psychological condition of depression, and have reversed the Judge’s Decision granting in part the Review Petition based on the fact that both Dr. Richardson and Dr. Bur-stein testified merely that Claimant’s 1993 work injury was a contributing factor among other non-work-related and personal stressors, not a substantial contributing factor, as Claimant is required to show in order to meet his burden of proof on the Review Petition.

The Board’s statement of law is correct, ie., that claimant has the burden of proving that the work-related injury is a substantial contributing, not just a contributing, factor. Nonetheless, I believe the testimony could support either conclusion, and that the talismanic significance the Board has placed on the use — or non-use — of the word “substantial” is misplaced. That said, whether a factor substantially contributes to the claimant’s condition is a question of fact, and the WCJ’s language provides little basis to determine with any degree of certainty which he has found. 1 Accordingly, I believe that the case should be remanded so that the WCJ can clarify his findings.

Judge COHN JUBELIRER and Judge LEAVITT join this dissenting opinion.

. At first blush, the majority’s interpretation appears to be supported by the WCJ’s comment that his 50% allocation was "an equitable assessment of liability for the payment of the treatment and medication under review, given the numerous substantial contributing factors to the claimant's prior and current difficulties, inclusive of both those which are work related as well as non-work related.” WCJ’s opinion at 3, Finding of Fact No. 5 (emphasis added). However, since it is undisputed that claimant’s prior psychiatric difficulties were significantly work-related, I find this statement indeterminate as well.