IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Berks Area Regional 

Transportation Authority, :

:

Petitioner :

:

 v. : No. 1058 C.D. 2021

: Submitted: February 18, 2022

Lena Katzenmoyer :

(Workers’ Compensation Appeal :

Board), :

:

Respondent :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: November 8, 2022

The Berks Area Regional Transportation Authority, commonly referred 

to as “BARTA” (Employer), petitions for review of an order of the Workers’ 

Compensation Appeal Board (Board) that affirmed an order of a Workers’ 

Compensation Judge (WCJ) granting Lena Katzenmoyer (Claimant) total disability 

benefits under the Workers’ Compensation Act (Act)1for a psychological injury in 

the form of post-traumatic stress disorder (PTSD), that resulted from an abnormal 

working condition. Employer contends that the WCJ and the Board erred by finding 

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

that Claimant met the required burden of proof that she sustained a compensable 

psychological injury as a result of two incidents occurring within a two-month period 

where Claimant’s bus was struck by bullets, constituting an abnormal working 

condition. Employer argues that the WCJ mischaracterized certain evidence of 

record regarding these two incidents to support the finding of an abnormal working 

condition. Upon review, we affirm. 

The relevant facts as found by the WCJ are as follows. Claimant 

worked as a bus driver for Employer since 2014. On October 19, 2018, Claimant 

was driving when she heard and saw shots being fired in her rear view mirror

(October incident). Reproduced Record (R.R.) at 135a. Claimant saw people 

running up the sidewalk and screaming. Id. Claimant saw the offender shoot several 

times behind her bus, and she later learned that the offender shot and killed the 

victim. Id. Her bus was struck twice by bullets. Id. Claimant returned to the bus 

depot, and she informed her supervisor, Sharon Stephens, about the incident the next 

day. Id. Claimant cried after the incident, but she returned to work because she 

thought she could deal with her symptoms. Id. Claimant did not seek treatment after 

the October incident. Id. 

Two months later, on December 19, 2018, there was a second incident 

involving Claimant’s bus being shot at and struck by bullets (December incident). 

R.R. at 135a. Claimant was driving when a big window on the passenger side of the 

bus was “shot out.” Id. The driver’s side windshield above Claimant’s head was 

also struck with bullets. Id. Claimant pulled over and called 911. Id. Claimant 

refused to drive the bus back to the depot, and her supervisor drove the bus. Id. 

After the December incident, Claimant began to experience symptoms including 

sensitivity to reflections, lights, sounds, and unexpected events. Id. Claimant 
3

informed her supervisor about the symptoms that she was experiencing and that she 

felt she should not be driving a bus. Id. Claimant sought treatment on January 2, 

2019, and began to receive therapy. Id. at 136a. Claimant has not returned to work

since January 4, 2019. Id. Claimant continues to receive therapy for symptoms 

including nightmares, panic attacks, an extreme startle response, lack of 

concentration, and fears of being around people. Id. Claimant was not aware of any 

other incidents where shots were fired at buses. Id. Claimant received training 

regarding dealing with vehicles being struck by bullets or other projectiles, but she 

did not recall the training. Id. Claimant’s bus was struck by bullets once before, in 

2016, but she did not have long-term effects from that incident. Id. The October 

incident was different because Claimant saw a life being taken. Id. Claimant was 

in fear of serious bodily injury and felt her life was threatened in both incidents. Id. 

On December 5, 2019, Claimant filed two claim petitions, one alleging 

psychological injury from the October incident, and one alleging psychological 

injury from the December incident, both of which Employer denied. R.R. at 1a-10a, 

135a. Hearings were held before the WCJ at which Claimant presented her own 

testimony and the deposition testimony from Dr. Christopher Royer (Claimant’s 

expert). Employer presented deposition testimony from Ms. Stephens, its manager 

of training and safety (manager), and the deposition testimony from Dr. Robert 

DeSilverio (Employer’s expert). 

Claimant’s expert, a licensed psychologist, opined that Claimant 

suffered from PTSD based on the October and December incidents. R.R. at 137a. 

Claimant’s expert opined that Claimant met the criteria for PTSD because she 

experienced or witnessed two events of either actual or threatened death or serious 

injury. Id. Claimant’s expert opined that Claimant was unable to return to work 
4

because she still had a lot of symptoms, including that “she is cautious, anxious, and 

distrustful. She has anticipatory anxiety.” Id. Claimant’s expert opined that “[i]t is 

unsafe for her to be in that mindset. She has a lack of sleep and reflexive reactions 

which would be a problem while driving a bus.” Id. 

Employer’s manager testified, in relevant part, regarding Employer’s 

training for its drivers, including Claimant. Manager worked with Employer since 

2004, and as of 2014, worked as Employer’s manager of safety and training. R.R. 

at 138a. Manager testified that Employer provided training on how employees 

should respond if various projectiles hit a bus. Id. Manager testified that in the last 

three- to four-year period, “there were more busted windows by pellet guns, rocks 

thrown, and various types of gunshots.” Id. 

Employer’s expert, a board-certified psychiatrist and neurologist, 

opined that Claimant did not suffer from PTSD, because the October incident, the 

December incident, or both incidents together “do not qualify as traumatic events.” 

R.R. at 137a. Employer’s expert opined that the October incident, where Claimant 

“witnessed a gunshot from a parked car behind her bus,” was not enough to trigger 

PTSD “because [Claimant] was not in danger herself.” Id. at 138a. Employer’s 

expert opined that Claimant’s lack of improvement over time “is a subjective 

worsening of someone who does not want to go back to work.” Id. Employer’s 

expert opined that he found “the DSM-5 criteria for [PTSD] to have been watered 

down for social and political reasons,” and that it was incumbent on Employer’s 

expert “to stand for something.” Id. DSM-5 refers to the Diagnostic and Statistical 

Manual of Mental Disorders, Fifth Edition. 

In her decision dated November 25, 2020, the WCJ granted Claimant’s 

claim petitions, concluding that, “[b]ased on the combination of events, Claimant 
5

sustained a work[-]related injury of PTSD on December 19, 2018 [the December 

incident], resulting in a disability commencing January 4, 2019, [Claimant’s last day 

of work,] and ongoing.” R.R. at 139a. The WCJ found Claimant’s testimony to be 

credible, stating: 

There is no dispute that the two shooting events occurred. 

While Employer may argue, and [Employer’s expert] may 

advocate that a shooting at or near a public bus may not be 

an abnormal working condition, the undersigned finds that 

two such incidents within eight weeks of each other, 

particularly where the windshield was shot just over 

Claimant’s head, compounded with a shooting two years 

prior, is an abnormal working condition.

R.R. at 138a. 

The WCJ found the testimony of Employer’s manager credible, “but 

insufficient to establish that Claimant’s experiences were other than abnormal 

working conditions.” R.R. at 138a. The WCJ found that Employer’s manager 

asserted that in the past three to four years, there had been 

more busted windows, but provided no information as to 

whether they were busted when the driver was in the bus, 

or any definitive statistics about how many gunshots were 

fired at buses, and particularly how many repeated events 

were experienced by one driver. 

Id. 

The WCJ further found the opinions of Claimant’s expert “more 

competent and credible” than those of Employer’s expert. R.R. at 138a. The WCJ 

found that Employer’s expert downplayed the value of certain tests performed by 

Claimant’s expert, instead “preferring his skills at divining truth via eye contact.” 

Id. The WCJ also found that Employer’s expert’s testimony was not “professionally 

based, and is based on his own admission that it is incumbent upon him to take both 

a social and political stand against the ‘watering down of the DSM-5.’” Id. 
6

Employer appealed the WCJ’s decision to the Board, on the basis that 

Claimant failed to prove that she suffered from PTSD and that her mental disability 

was caused by abnormal working conditions. The Board affirmed the WCJ in a 

decision dated August 31, 2021. R.R. at 141a-151a. The Board reviewed Claimant’s 

testimony regarding the October and December incidents, noting that Claimant’s 

problems “got worse after the second incident[, the December incident,] to the point 

where she could not go places, such as eating out or going to the drug store, because 

she did not trust other people and loud noises set her off.” Id. at 146a. The Board 

also reviewed the testimony of Employer’s manager, specifically involving bus 

driver training. Manager testified that

Claimant underwent new hire training as a driver that 

included various topics, including a classroom portion that 

covers bus fires, medical emergencies, and projectiles 

being thrown at the bus. It specifically went into various 

types of vandalism that can occur including paint balls, 

pellet guns, rocks, and bullets. [Manager] testified they 

have had an increase in the number of busted bus windows 

over a period of a couple years. 

Id. (internal citations omitted). 

The Board summarized the testimony of Claimant’s expert, Employer’s 

expert, and the WCJ’s credibility determinations, noting that “determinations of 

credibility and weight to be accorded evidence are the prerogative of the WCJ, not 

this Board.” R.R. at 148a. The Board concluded that the WCJ did not err “in finding 

that Claimant had sustained a work-related psychological injury as a result of 

abnormal working conditions.” Id. The Board explained that Claimant met her 

burden of establishing that she had a psychological condition caused by her 

employment through the unequivocal medical testimony of Claimant’s expert, as 

credited by the WCJ over the testimony of Employer’s expert. Id. The Board also 
7

concluded that Claimant met her burden of proving that her psychological injury was 

a result of abnormal working conditions, as required by the applicable mental-mental 

standard. Id. at 149a. In evaluating the October incident, the Board stated: 

Instantly, the WCJ found there were two specific 

extraordinary events that occurred at work which caused 

Claimant trauma and rose to the level of abnormal working 

conditions. The first event occurred on October 19, 2018, 

when Claimant witnessed a man in the street shooting, 

including hitting her bus twice, and then murdering a 

person in a car within her view. This was a traumatic event 

that was outside the usual situation a bus driver would be 

expected to experience. While [manager] testified that 

drivers have a short classroom training on various 

projectiles hitting the bus and vandalism, Claimant’s 

situation was far more severe than merely vandalism or 

rocks being thrown at the bus. Her bus was shot at and the 

shooter murdered another person immediately afterwards, 

while Claimant witnessed the event occur. We conclude 

this situation rises to the level of an abnormal working 

condition.

Id. 

In evaluating the December incident, the Board stated: 

The second event occurred on December 19, 2018, when 

Claimant’s bus was shot at multiple times, blowing out the 

passenger window and hitting the windshield within close 

range of hitting her head. There were also other 

passengers on the bus at the time who began to panic at the 

situation, and Claimant was forced to flee the scene with 

her bus and call the police. This again amounts to a[] 

unique and unusual situation that would be unexpected for 

a bus driver to experience. It was not mere vandalism but 

actual gunfire being directed at a bus full of people, 

shooting out a window and almost hitting Claimant in the 

head if the windshield had not stopped the bullet. We 

conclude this situation rises to the level of an abnormal 

working condition. 

R.R. at 150a. 
8

The Board concluded that although each individual event could alone 

rise to the level of an abnormal working condition, “the combination of the two 

within two months of each other even more clearly establishes abnormal working 

conditions.” R.R. at 150a. The Board explained that although “a city bus driver 

could potentially experience events such as vandalism or projectiles being thrown at 

the bus, these two events both were far more severe and were highly unusual and 

traumatic, far outside what bus drivers would be expected to experience at their 

jobs.” Id. 

Employer then petitioned this Court for review.2 Employer did not seek 

review of Claimant’s PTSD diagnosis and focused its arguments on the Board’s 

alleged error in concluding that the two incidents constituted an abnormal working 

condition. 

In addition to the Court’s usual review in a workers’ compensation 

appeal, when the matter involves a mental-mental injury, we must also consider 

whether Claimant sustained her burden of proof that the mental injury she suffered 

is something other than a subjective reaction to normal working conditions, i.e., that

Claimant’s mental injury is a result of abnormal working conditions. Payes v. 

Workers’ Compensation Appeal Board (Pennsylvania State Police), 79 A.3d 543 

(Pa. 2013); Pennsylvania Liquor Control Board v. Workers’ Compensation Appeal 

Board (Kochanowicz), 108 A.3d 922 (Pa. Cmwlth. 2014). 

2 Our scope of review in a workers’ compensation appeal is limited to determining whether 

an error of law was committed, whether constitutional rights were violated, or whether necessary 

findings of fact are supported by substantial evidence. Bloom v. Workmen’s Compensation Appeal 

Board (Keystone Pretzel Bakery), 677 A.2d 1314, 1318 n.4 (Pa. Cmwlth. 1996). Substantial 

evidence means such relevant evidence as a reasonable mind might accept as adequate to support 

a conclusion. Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board (Skirpan), 612 

A.2d 434, 436 (Pa. 1992).
9

In Payes, the Supreme Court held that a state police trooper sustained 

his burden of proving that an abnormal working condition existed and that he was 

entitled to benefits for a mental-mental injury3 when he accidentally struck and killed 

a pedestrian with his police car, and attempted to revive her while attempting to 

divert traffic from hitting him and the pedestrian. Payes, 79 A.3d at 556-57. As our 

Supreme Court stated, the determination of whether Claimant’s mental injury is a 

result of abnormal working conditions is a “mixed question of law and fact.” Id. at 

549. Mental or psychic injuries are highly fact sensitive, and for the actual working 

conditions to be considered abnormal, they must be considered in the context of 

specific employment. Id. at 552. Such a fact-sensitive inquiry “‘requires deference 

to the fact-finding functions of the WCJ,’” and, therefore, review of those factual 

findings is limited to determining whether they are supported by substantial

evidence, and they may only be overturned “‘if they are arbitrary and capricious. 

Thus, . . . appellate review of this question [is] a two-step process of reviewing the 

factual findings and then the legal conclusion.’” Id. (quoting RAG (Cyprus) Emerald 

Resources, L.P. v. Workers’ Compensation Appeal Board (Hopton), 912 A.2d 1278, 

1284 n.6 (Pa. 2007)). 

Here, Employer argues that the Board erred in describing the October 

incident, and relying on its inaccurate description to support finding an abnormal 

3 As the Supreme Court explained:

For purposes of determining compensation under the Act, 

mental or psychic injuries are divided into three categories: mentalmental, whereby a mental or psychic condition is caused by a 

psychic stimulus; mental-physical, whereby psychic injury 

manifests itself in some physical form; and physical-mental, 

whereby a physical injury results in psychic distress. 

Payes, 79 A.3d at 550. Here, Claimant is asserting a mental-mental injury. 
10

working condition. Employer objects to the Board’s characterization of the October 

incident as one where “Claimant witnessed a man in the street shooting, including 

hitting her bus twice, and then murdering a person in a car within her view.” R.R. 

at 149a. Specifically, Employer argues that Claimant did not witness the October 

incident as the Board describes, because Claimant testified that she heard, but did 

not see, the offender fire a gun behind her bus; Claimant did not learn until the next 

day that the offender killed someone; and Claimant did not actually view the bullet 

holes in her bus. Claimant responds that the Board did not mischaracterize the 

October incident, when Claimant testified she heard and saw seven gunshots, which 

she described “like fire.” Id. at 19a. Claimant further responds that Employer’s 

manager later discussed the October incident with Claimant, describing details of 

the incident captured on the bus video, and confirming that the bullet holes in the 

bus “were big” and not made by a “grandma’s gun.” Id. at 22a. 

On this point we discern no error in the Board’s description of the 

October incident, based on Claimant’s testimony as credited by the WCJ. We are 

mindful that in workers’ compensation cases, “the WCJ is the ultimate fact-finder 

who must determine credibility and evidentiary weight. In this role, the WCJ freely 

evaluates the evidence offered and can accept or reject any witness’[s] testimony, in 

whole or in part, including that of medical witnesses.” Davis v. Workers’ 

Compensation Appeal Board (City of Philadelphia), 753 A.2d 905, 909 (Pa. 

Cmwlth. 2000). As this Court noted, “[w]hile this Court can and should consider 

the competency and sufficiency of evidence presented before a WCJ, the WCJ’s 

assessment of witness credibility is not subject to our review on appeal.” Id.

Furthermore, in a substantial evidence analysis where, as here, both parties presented 

evidence, “it does not matter that there is evidence in the record which supports a 
11

factual finding contrary to that made by the WCJ, rather, the pertinent inquiry is 

whether there is any evidence which supports the WCJ’s factual finding.” 

Hoffmaster v. Workers’ Compensation Appeal Board (Senco Products), 721 A.2d 

1152, 1155 (Pa. Cmwlth. 1998). This Court “may overturn a credibility 

determination only if it is arbitrary and capricious, so fundamentally dependent on a 

misapprehension of material facts, or so otherwise flawed, as to render it irrational.” 

West Penn Allegheny Health System, Inc. v. Workers’ Compensation Appeal Board 

(Cochenour), 251 A.3d 467, 475 (Pa. Cmwlth. 2021) (citation omitted). 

Employer does not dispute that Claimant’s bus was shot at and struck 

by bullets, or that Claimant heard and saw multiple gunshots take place behind her 

bus during the October incident. The fact that Claimant did not learn until the next 

day that a person was killed in the incident, or that she did not view the bullet holes 

in her bus, does not render the Board’s description inaccurate. We also discern no 

error in the Board’s finding that the October incident constituted an abnormal 

working condition, based on this description. We acknowledge that mental injuries 

as a result of abnormal working conditions present a mixed question of law and fact. 

Payes, 79 A.3d at 549. As guided by Payes, mental injuries are highly fact sensitive, 

and the question of whether the events may be considered abnormal must be 

considered in the context of specific employment. Id. at 552. Such a fact-sensitive 

inquiry requires deference to the fact-finding functions of the WCJ, which may be 

overturned only if they are arbitrary and capricious. Id. Based upon our review of 

the entire record, we discern no error in the WCJ’s or Board’s conclusion that these 

two incidents, either separately or together, constituted abnormal working 

conditions, in the context of Claimant’s job as a bus driver. 
12

Employer also argues that the Board erred in failing to properly account 

for Claimant’s training in determining whether these incidents constituted abnormal 

working conditions. Critical here is the WCJ’s finding that Employer’s manager’s 

testimony was “credible, but insufficient” to establish that Claimant’s experiences 

constituted abnormal working conditions. Employer argues that this Court’s 

decision in McLaurin v. Workers’ Compensation Appeal Board (SEPTA), 980 A.2d 

186 (Pa. Cmwlth. 2009), should govern here, which Claimant disputes. 

In McLaurin, this Court considered whether a bus driver who was 

threatened by a young man with a gun while he was driving the bus, and who 

suffered PTSD, met his burden to prove that his mental injury was caused by 

abnormal working conditions. In McLaurin, the WCJ credited the testimony of the 

employer’s witness, who testified that bus drivers were advised to expect dangerous 

passengers, and bus drivers received specific training on how to deal with dangerous 

passengers. McLaurin, 980 A.2d at 188-89. The WCJ also credited the testimony 

of another employer witness, who presented statistics and incident reports 

documenting the number of passenger disturbances on buses, the number of assaults 

on bus drivers, and the number of bus drivers threatened with a gun, during specific 

time periods. Id. Because this credited testimony showed that bus drivers were 

specifically advised to expect and respond to dangerous passengers, and that threats, 

threats with guns, and assaults occurred with some frequency on buses, the WCJ 

found that the bus driver’s incident was not an abnormal working condition. Id. at

190. This Court explained that the bus driver failed to prove by objective evidence 

that his mental injury was not a subjective reaction to normal work conditions, or 

that his incident “represented something he could not anticipate.” Id. On the other 

hand, the employer “offered evidence showing that such incidents did occur with 
13

enough regularity that handling of them had been built into the operators’ training 

program.” Id. Based on the credited evidence presented, we affirmed the Board’s 

denial of benefits to the claimant for a mental-mental injury because it did not result 

from an abnormal work condition. Id. 

McLaurin is distinguishable from the facts presented here, because the 

record lacks evidence that the events that Claimant experienced occurred with 

enough regularity that she could have anticipated them, or that she received specific 

training on how to respond to them. Claimant credibly testified that she was not 

aware of other drivers being shot at while driving. Employer presented no statistics 

or reports regarding other incidents of its bus drivers being shot at while driving. 

Although Employer’s manager credibly testified that in the last three to four years,

Employer experienced more busted windows from pellet guns, rocks, and various 

types of gunshots, Employer presented no evidence regarding the frequency or 

specifics of these incidents, whether they occurred while drivers were on their buses, 

or whether any other drivers had been shot at while driving. Further, although 

Employer’s manager credibly testified, and Claimant agreed, that Claimant received 

training on how to respond to emergency situations, including those where a 

projectile was aimed at a bus, this general training is insufficient to support a 

conclusion that Claimant should have anticipated, and was trained to respond to, 

being shot at while driving a bus. 

In Kochanowicz, 108 A.3d 922, this Court affirmed the WCJ’s award 

of benefits for a mental-mental injury caused by abnormal working conditions, when 

a manager of a liquor store suffered a mental injury after being robbed at gunpoint. 

Although the claimant in Kochanowicz received training involving workplace 

violence, and robberies had occurred at other liquor stores, we held that “such 
14

training was not entirely relevant, and not dispositive, of whether the armed robbery 

[the c]laimant experienced was a normal working condition.” Id. at 933. In reaching 

this result, the Court distinguished McLaurin and determined that the “specific 

armed robbery” that the claimant experienced was “not a normal working 

condition.” Id. at 934. Similarly here, we find no error in the Board’s conclusion 

that the specific events Claimant experienced in the October incident, the December 

incident, or both, constituted an abnormal working condition. 

For the foregoing reasons, we affirm the Board’s order.

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Berks Area Regional 

Transportation Authority, :

:

Petitioner :

:

 v. : No. 1058 C.D. 2021

: 

Lena Katzenmoyer :

(Workers’ Compensation Appeal :

Board), :

:

Respondent :

O R D E R

AND NOW, this 8

th day of November, 2022, the order of the Workers’ 

Compensation Appeal Board dated August 31, 2021, is AFFIRMED. 

__________________________________

MICHAEL H. WOJCIK, Judge