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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Curren,

:

Petitioner

:

:

v.

: Nos. 1045 & 1046 C.D. 2004

: Submitted: September 3, 2004
Workers' Compensation Appeal Board :
(City of Chester),

:

Respondent

:
BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge

HONORABLE ROBERT SIMPSON, Judge
HONORABLE
CHARLES P. MIRARCHI, JR., Senior Judge
OPINION BY JUDGE SMITH-RIBNER FILED: December 21, 2004

In No. 1046 C.D. 2004 John Curren petitions for review of an order of
the Workers' Compensation Appeal Board (Board) that reversed an order of the
Workers' Compensation Judge (WCJ) and denied Curren's October 13, 1993 claim
petition alleging work-related chest pains and coronary artery disease. Curren
questions whether the WCJ's findings that the physical exertion of his job as a
police officer caused an aggravation of his coronary artery disease are supported
by substantial evidence; whether the Board usurped the WCJ's fact finding power
by concluding that Curren actually suffered a "psychic" injury caused by mental
rather than physical stress; and whether Curren was required to establish that the
aggravation of his coronary artery disease was caused by abnormal working
conditions. In No. 1045 C.D. 2004 Curren petitions for review of an order of the
Board that affirmed the denial of Curren's penalty petition. The Court sua sponte
consolidated the cases by order of September 29, 2004.
I

In a decision circulated on December 17, 2001, WCJ Sarah C. Makin
found that Curren was hired in the 1970s as a patrol officer for the City of Chester

(City) and ultimately attained the rank of Sergeant. In May 1993 he was running a
patrol division, which entailed supervisory as well as patrol officer duties. He
made several arrests and numerous foot pursuits. He worked mandatory overtime
of a minimum of twelve additional hours per week in the year and one-half
preceding May 1993; the police force was severely short of a full complement even
though the City was drug-infested with many shootings and stabbings. From 1992
to May 1993 Curren had symptoms of what he thought was indigestion
approximately six times when he was involved in struggles, trying to subdue
individuals, physical fighting and foot pursuits. Specifically, he experienced
burning pain in the area of his sternum and sweating. He sought treatment on four
occasions at Crozer-Chester Medical Center for similar symptoms during the night.

Curren was off work and was receiving workers' compensation due to
a back injury when he again experienced cardiac symptoms on July 4, 1993. He
underwent an angioplasty; he then came under the care of Kenneth Mendel, M.D.,
a board-certified cardiologist, who determined from examination and review of
records that Curren had advanced significant coronary artery disease, hypertension
and hypercholesterolemia. He recommended that Curren not work as a police
officer because of these conditions. Dr. Mendel continues to treat Curren for
coronary artery disease, and he opined that Curren endured sufficient work-related
stress in quality and quantity, with signs and symptoms manifested while working,
to significantly accelerate and worsen his coronary artery disease and to place him
at significant risk of debilitating injury if he worked after May 1993. The City
presented the testimony of Dr. Robert B. Kleinman, who examined Curren and
reviewed medical records. Dr. Kleinman agreed with Dr. Mendel's diagnoses, but
he stated that hypertension, high cholesterolemia and cigarette smoking before
2

1992 caused Curren's coronary artery disease. He stated that stress has been linked
to development of heart attacks and unstable angina, but not to the underlying
process of development of arteriosclerosis and coronary artery disease.

WCJ Makin credited Curren's testimony and credited Dr. Mendel's
testimony over that of Dr. Kleinman where they conflicted. The WCJ concluded
that Curren sustained a compensable injury to his heart in the course and scope of
his employment, that he became disabled on July 23, 1993 and that he was entitled
to compensation and payment of related medical expenses. She also concluded
that because Curren continued to receive total disability benefits for the back
injury, compensation for his work-related cardiac condition should not begin until
the other compensation ended or was reduced.

The Board agreed with the City in its appeal that the WCJ erred by not
applying the standards set forth in Davis v. Workmen's Compensation Appeal
Board (Swarthmore Borough), 561 Pa. 462, 751 A.2d 168 (2000). The Supreme
Court held there that where a claimant asserts a psychic injury that has manifested
itself through psychic and physical symptoms, the standard to be applied is the
same standard that the court articulated in Martin v. Ketchum, Inc., 523 Pa. 509,
568 A.2d 159 (1990). Namely, the claimant must prove by objective evidence that
he or she has suffered a psychic injury and that the psychic injury is other than a
subjective reaction to normal working conditions.1 The Board vacated and
remanded for further consideration and the application of the Davis standards.

1The Board disagreed with the City's contention that the underlying condition could not
be compensable, noting that it had been held that even if underlying disease that affects a
claimant's heart is not caused by his or her employment, the claimant is not disqualified if work-
related exertion causes the victim to suffer a heart attack or to suffer other disabling symptoms
that may result from the heart disease, citing Borough of Media v. Workmen's Compensation
Appeal Board (Dorsey), 580 A.2d 431 (Pa. Cmwlth. 1990).
3

On remand, the case was considered by WCJ Carl M. Lorine. WCJ
Lorine again found Curren's testimony to be credible in its entirety, and he found
the testimony of Dr. Mendel to be more credible and persuasive than that of
Dr. Kleinman to the extent that they were inconsistent. WCJ Lorine found that
Dr. Mendel's explanation of the causal nexus between Curren's work-related
activities and his coronary artery disease was consistent with Curren's testimony
regarding the temporal development of his symptoms and was more plausible in a
medical sense. The WCJ concluded that Curren had met his burden of proof and
that his injuries were of the "physical/physical" or "physical/mental" types and that
they had been shown to cause temporary total disability and to place him at
substantial risk for serious additional injury if he were to return to his police work.

On the City's second appeal the Board reversed the WCJ, stating that
the finding that Dr. Mendel opined that Curren's work-related physical activities
were a significant, worsening factor in the continuing development of his coronary
artery disease was not supported. It said that a complete reading of Dr. Mendel's
testimony indicates that "although he stated that the physical aspects of Claimant's
job helped accelerate his condition, the atmosphere, 'adrenaline-related issues,' and
stress caused the worsening of his condition." Board Decision, April 30, 2004, at
pp. 5 - 6. The Board concluded that the WCJ erred in finding that this was a
physical/physical or physical/mental case; rather, the Board asserted that it was a
mental/physical case because a psychological stimulus caused a physical injury.2

2The Court's review of the Board's decision is limited to determining whether there were
constitutional violations or errors of law, whether a practice or procedure of the Board was not
followed and whether the necessary findings of fact are supported by substantial evidence in the
record. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Gunter v. Workers'
Compensation Appeal Board (City of Philadelphia), 573 Pa. 386, 825 A.2d 1236 (2003).
4

Curren first stresses that he did not allege a psychic injury and that the
WCJ did not find that he suffered a psychic or mental/physical injury caused by a
psychological stimulus. Curren quotes Finding of Fact No. 8 from WCJ Makin's
decision, which states that while in the course of performing his physical duties
Curren suffered cardiac symptoms and that his testimony supported a finding that
the physical exertions of his job, including struggling with suspects and engaging
in foot pursuits, caused an aggravation of his coronary artery disease. Curren notes
that the Board's appellate role is to determine if the WCJ's findings are adequately
supported by the evidence as a whole, with credibility solely a matter for the WCJ,
Bethenergy Mines, Inc. v. Workmen's Compensation Appeal Board (Skirpan), 531
Pa. 287, 612 A.2d 434 (1992), and that the Board may not change the WCJ's
findings that Curren's physical activity caused his coronary artery symptoms.

Curren also argues that Dr. Mendel's testimony supports a finding that
Curren's physical work activities significantly accelerated his coronary artery
disease. Curren quotes from Dr. Mendel's response to a hypothetical question
describing Curren's angina symptoms both in connection with chases and struggles
and at night, his additional duties as a shift commander and the anguish he suffered
when an officer he sent to serve a warrant was killed by a shotgun blast:
Cholesterol plaque is not the normal lining substance for
the blood vessels. Those abnormal lining plaques if you
will, are subject to injury based on the sheer forces of the
rapid blood flow rushing by.

The more the demand, that is a person is running,
chasing, whatever, the more rapid that rate of flow, the
greater the likelihood of irritation, hemorrhage into that
area of irritation with plaque. . . .

. . . .

[F]rom the nature of the work, the symptoms that
you were describing he was experiencing, it would
certainly fit into my definition for reasonable medical
5

certainty that this was a causal or at least a -- I don't want
to say a causal factor, but a permissive or disease
modifying factor.

Q. The word I used was an accelerating factor.

A. Yes, accelerating.
Deposition of Dr. Mendel at pp. 20 - 21.

Finally, Curren argues that Davis is distinguishable and that he does
not have to show the existence of abnormal working conditions. In Davis a long-
serving police officer filed a claim alleging that he suffered a psychic injury in the
form of post-traumatic stress disorder and specific work inhibition resulting from
repeated stressful and life-threatening experiences over the course of his career,
with physical manifestations. Curren, however, presented evidence that he
suffered an acceleration of his coronary artery disease as a result of his physical
work activities. In Haddon Craftsmen v. Workers' Compensation Appeal Board
(Krouchick), 809 A.2d 434 (Pa. Cmwlth. 2002), where a forklift operator with
lifting duties and deteriorating strength suffered a fatal heart attack when the plant
where he worked for many years closed, the Court concluded that Davis-type
analysis did not apply when physical work demands were shown to contribute.

The City argues that the Board did not review the credibility of any
witness nor reweigh evidence; rather, it determined that there was not substantial
evidence to support the WCJ's finding that an aggravation of Curren's coronary
artery disease was brought about by physical stimulus and overexertion at work.
The City asserts that the Board's decision is supported by substantial evidence,
noting that Curren testified to episodes of angina when he was sleeping, and it
quotes, among other things, the hypothetical question noted above, emphasizing
the reference to the stress and mental anguish caused by the officer's killing. It
concludes that the testimony does not support a finding that Curren's injury was
6

due to physical activities at work. The City contends that Curren did not meet the
Davis burden of establishing abnormal working conditions.

The Court agrees with Curren that the Board erred in this case. As is
clearly articulated in Haddon Craftsmen, the mere fact that some mental stress may
have been involved in causing cardiac injury does not require disregarding
substantial, credited evidence that physical work activity contributed as well:

Although psychological stress was a factor in
causing Decedent's heart attack here, it was not the sole
factor. To the contrary, the medical evidence establishes
the physical demands of Decedent's work substantially
contributed to his fatal heart attack. Unlike Erie Bolt
[Corp. v. Workers' Compensation Appeal Board
(Elderkin), 562 Pa. 175, 753 A.2d 1289 (2000) (reversing
based on Davis a grant of benefits where fatal heart
attack was attributed solely to stress at work and the
shock of termination)], here the WCJ found that the
physical requirements of Decedent's job, coupled with
the emotional stress of termination, triggered Decedent's
cardiac death. Therefore, because Decedent's heart attack
was not simply a physical manifestation of psychological
symptoms, Erie Bolt does not compel a reversal.
Haddon Craftsmen, 809 A.2d at 441. Although Dr. Mendel referred to the
emotional stress of a police officer's job, there is no question that his testimony was
that the physical activities involved in Curren's work triggered individual episodes
of angina and contributed to the acceleration of his coronary artery disease. The
issue is not, as the City seems to argue, whether the Board's findings are supported,
but rather whether the WCJ's findings are supported. In this case two WCJs made
essentially the same findings based upon credited medical evidence. The Board
erred in insisting that the WCJs analyze the case under Davis when Curren did not
claim psychic injury and when credited medical evidence established physical
7

work activities as a significant contributing factor in the acceleration of a physical
injury of coronary artery disease. Haddon Craftsmen.
II

In the consolidated matter at No. 1045 C.D. 2004, Curren petitions for
review of an order of the Board that affirmed the order of WCJ Lorine dismissing
Curren's penalty petition. Curren filed his penalty petition in June 2002 alleging
that the City violated provisions of the Workers' Compensation Act (Act), Act of
June 2, 1915, P.L. 736, 77 P.S. §§1 - 1041.4, 2501 - 2626, by failing to pay
compensation to him based upon WCJ Makin's December 17, 2001 decision. The
parties presented a stipulation at the hearing, which specified that in March 2000
WCJ Joseph A. Stokes granted the City's modification/suspension petition in
regard to Curren's claim for compensation benefits for his back injury as of
April 15, 1994, based upon his receipt of pension disability benefits. That decision
was affirmed. Curren v. Workers' Compensation Appeal Board (City of Chester)
(Pa. Cmwlth., No. 2261 C.D. 2001, filed July 17, 2002) (holding that disability
pension paid by City was in lieu of compensation benefits and greater than amount
due and that City was entitled to full credit for compensation benefits owed).

The stipulation further set forth the history of Curren's claim petition
for chest pains and coronary artery disease, including the denial of the City's
request for supersedeas following WCJ Makin's decision through the Board's
October 2002 order vacating WCJ Makin's order and remanding. WCJ Lorine
concluded that Curren failed to show by a preponderance of the evidence that the
City violated the Act. On appeal, the Board stated that although the City appealed
WCJ Makin's order and no supersedeas was granted, the Board thereafter vacated
the order. Thus the WCJ did not abuse his discretion in failing to award a penalty.
8

Curren argues that the Court has held that a defendant violates the Act
where it fails to pay compensation after its petition for supersedeas is denied, even
though the defendant ultimately prevails on the merits. Graves v. Workmen's
Compensation Appeal Board (LaFrance Corp.), 680 A.2d 49 (Pa. Cmwlth. 1996).
He asserts that once supersedeas was denied on January 18, 2002, he became
entitled to receive compensation benefits from April 15, 1994 until October 28,
2002, when the Board vacated WCJ Makin's decision. The City cites the principle
that imposition of a penalty under the Act is at the discretion of the WCJ and is not
required, even if a violation is apparent on the record, Candito v. Workers'
Compensation Appeal Board (City of Philadelphia), 785 A.2d 1106 (Pa. Cmwlth.
2001), and it maintains that no violation occurred because it was never obligated to
pay benefits under WCJ Makin's decision. The Court fully agrees with the City
because WCJ Makin's decision stated that the obligation to pay compensation for
Curren's cardiac condition should not begin until the other compensation ends or is
reduced. The other compensation was suspended in view of Curren's receipt of the
disability pension. Hence, Curren failed to establish a violation of the Act.

In conclusion, the Court reverses the order of the Board on appeal at
No. 1046 C.D. 2004, which denied Curren's claim petition alleging work-related
chest pains and coronary artery disease. However, the Court affirms the order on
appeal at No. 1045 C.D. 2004, which denied Curren's penalty petition claiming
that the City violated the Act where it failed to pay Curren benefits from April 15,
1994 until October 28, 2002 when the Board vacated WCJ Makin's decision.

DORIS A. SMITH-RIBNER, Judge
9

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Curren,

:

Petitioner

:

:

v.

: Nos. 1045 & 1046 C.D. 2004

:
Workers' Compensation Appeal Board :
(City of Chester),

:

Respondent

:

O R D E R

AND NOW, this 21st day of December, 2004, the order of the
Workers' Compensation Appeal Board in No. 1046 C.D. 2004 denying John
Curren's claim petition is reversed, and the decision of the Workers'
Compensation Judge is reinstated. The order of the Board in No. 1045 C.D. 2004
denying Curren's penalty petition is affirmed.

DORIS A. SMITH-RIBNER, Judge