IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jason McGlory, : Petitioner : : v. : : Workers' Compensation Appeal : Board (A.W. Golden, Inc. Chevy/ : Cadillac and AmeriHealth Casualty : Insurance Company), : No. 2018 C.D. 2013 Respondents : Submitted: March 7, 2014 BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: July 8, 2014 Jason McGlory (Claimant) petitions for review of a Workers Compensation Appeal Board (Board) Order which affirmed the Workers Compensation Judge s (WCJ) decision that dismissed Claimant s Reinstatement Petition and denied Claimant s Modification Petition. I. Background. On November 10, 2009, Claimant and the insurer AmeriHealth (AmeriHealth) stipulated to the following: 2. Claimant originally injured his back on February 25, 2002 (the 2002 injury ), and liability for this injury was accepted by Defendant Universal Underwriters by means of a Temporary Notice of Compensation Payable and subsequent Supplemental Agreements. Claimant subsequently filed a Claim Petition on March 7, 2005, alleging that Claimant suffered a substantial aggravation
of his pre-existing low back injury on October 7, 2004, after installing a glove box in an Oldsmobile Alero at work (the 2004 injury ). Defendant AmeriHealth Casualty Service was on the risk for the 2004 injury. On December 15, 2005, WCJ David R. Weyl circulated a decision which essentially allocated the liability for Claimant s disability after October 7, 2004 to Defendant AmeriHealth. 3. After an appeal, the WCAB [Board] issued a decision dated October 30, 2006, which affirmed that portion of WCJ Weyl s decision apportioning liability for Claimant s ongoing injuries to Defendant AmeriHealth, but reversed the award of total disability benefits after August 3, 2005, as being unsupported by the record. 4. Defendant AmeriHealth ceased all payments to Claimant upon receipt of the October 30, 2006 Order. Claimant then filed a Petition for Penalties on November 20, 2006, alleging that Defendant AmeriHealth violated the Act by unilaterally ceasing payments to Claimant and seeking reinstatement of total disability benefits. Defendant AmeriHealth then started paying Claimant at the partial rate he was receiving based on his last few weeks of earnings in July of 2005 before he went out for surgery. 5. WCJ Perry denied Claimant s Penalty Petition by Order circulated May 11, 2007, finding that Claimant failed to sustain his burden to show that Defendant violated the terms and provisions of the Act, and holding that medical evidence Claimant submitted in support of the Petition was excluded on the basis of hearsay. 6. Claimant then filed a Reinstatement Petition on May 14, 2007. Defendant AmeriHealth moved to dismiss the Reinstatement Petition, arguing that it was barred by res judicata or collateral estoppel. 7. WCJ Perry circulated an Order on January 25, 2008, in which Judge Perry denied Defendant s motion to dismiss, holding that despite having filed a prior penalty petition, the humanitarian nature of the Act requires that 2
Claimant be permitted to present medical evidence to prove that he is entitled to a reinstatement of his benefits. Defendant AmeriHealth appealed WCJ Perry s Order and the matter was remanded to Judge Perry by the WCAB by Order circulated June 29, 2009. Stipulation, November 10, 2009, Nos. 2-7; Reproduced Record (R.R.) at 124a- 125a. (emphasis added). At a hearing on October 1, 2009, Claimant testified that he returned to light duty in December 2004 and continued to work until August 3, 2005, and stopped on the advice of Dr. David Abraham. Notes of Testimony, October 1, 2009, (N.T.) at 11-12; R.R. at 92a-93a. Claimant underwent surgery on October 27, 2006, by Dr. Alexander R. Vaccaro, M.D. (Dr. Vaccaro). N.T. at 16; R.R. at 97a. Claimant continued to receive benefits through October 30, 2006. N.T. at 17; R.R. at 98a. The parties stipulated to a report by Dr. Vaccaro which placed restrictions on Claimant and limited lifting, pushing, pulling, bending, stooping, twisting. N.T. at 23; R.R. at 104a. On April 21, 2010, the WCJ granted Defendant s Motion to Dismiss the remanded Reinstatement Petition pursuant to collateral estoppel and res judicata and denied the Modification Petition. WCJ Decision, April 20, 2010, at 4; R.R. at 141a. Claimant appealed. On March 4, 2011, the Board remanded for the WCJ to address this Board s concerns regarding the parties ability to present evidence in relation to the 3
previous remand, and to address Claimant s allegations regarding litigation of the reinstatement issue. Board s Order, March 4, 2011, at 7; R.R. at 149a. On January 26, 2012, the WCJ affirmed the remanded dismissal of Claimant s Reinstatement Petition which sought reinstatement as of August 5, 2005. The WCJ also affirmed the denial of the Modification Petition of the April 20, 2010, decision. On October 16, 2013, the Board affirmed. II. Present Controversy. Claimant raises 1 four issues on appeal. First, Claimant contends that the Board erred when it affirmed the WCJ s decision that found AmeriHealth liable but reversed the award of total disability benefits after August 3, 2005. Second, Claimant argues that the Board erred when it denied Claimant s petitions based on the doctrines of res judicata and collateral estoppel. Third, Claimant argues that the Board erred when it did not reinstate and modify benefits when they were neither terminated nor suspended and Claimant returned to work at a lower weekly wage. Finally, Claimant contends that the Board erred because it reversed the prior decision of a WCJ who previously denied Employer s Motion to Dismiss. 1 This Court s review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen s Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991). 4
A. Whether The Board Erred When It Failed To Address Its Earlier Remand Order Which Directed Defendant To Reinstate Total Disability Benefits. Claimant contends that the Board capriciously disregarded the record when it failed to address its October 30, 2006, Order, or more specifically, footnote No. 2 of that Order that stated if Claimant s total disability as a result of the October 2004 work injury did reoccur on August 3, 2005 following surgery, Additional Defendant [AmeriHealth] should reinstate total disability benefits as of this date and issue a Supplemental Agreement. Board s Order, October 30, 2006, n. 2 at 8; R.R. at 41a. Claimant argues that the footnote was directed to AmeriHealth because the original defendant, Universal Underwriters, met its burden of proving that Claimant s injury and subsequent disability were due to an aggravation of the previous work injury when AmeriHealth was on the risk for Claimant s disability. However, Claimant did not establish that he was entitled to total disability benefits as of August 3, 2005. WCJ Puhala concluded that because neither party appealed the Board s reversal of the award of total disability benefits as of August 5, 2005, ongoing, the Board s reversal put to rest the question of Claimant s entitlement to total disability on and after August 5, 2005. WCJ s Decision, January 25, 2012, Conclusion of Law No. 6 at 5; Claimant s Brief at 47. Therefore, the Board properly affirmed the January 25, 2012, decision of the WCJ. 5
B. Whether The Board Erred When It Denied Claimant s Petitions On The Basis of Res Judicata Or Collateral Estoppel. Claimant next contends that the Board erred when it denied Claimant s Reinstatement Petition on the basis of res judicata because the issues raised in the Reinstatement Petition were different than those raised in the Penalty Petition. Claimant also argues that collateral estoppel does not apply because Claimant s entitlement to a reinstatement of benefits was not actually litigated during the penalty proceedings. In Weney v. Workers Compensation Appeal Board (Mac Sprinkler Systems, Inc.), 960 A.2d 949 (Pa. Cmwlth. 2008), appeal denied, 971 A.2d 494 (Pa. 2009), this Court recounted the criteria necessary to establish res judicata and collateral estoppel: Initially, we note that technical res judicata and collateral estoppel are both encompassed within the parent doctrine of res judicata, which prevents the relitigation of claims and issues in subsequent proceedings. Henion [v. Workers Compensation Appeal Board (Firpo & Sons, Inc.)], 776 A.2d at 365 [(Pa. Cmwlth. 2001)]. Under the doctrine of technical res judicata, often referred to as claim preclusion, when a final judgment on the merits exists, a future suit between the parties on the same cause of action is precluded. Id. In order for technical res judicata to apply, there must be: (1) identity of the thing sued upon or for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or sued. Id. at 366. Technical res judicata may be applied to bar claims that were actually litigated as well as those matters that should have been litigated. Id.. Generally, causes of action are identical when the subject matter and the ultimate issues are the same in both the old and the new proceedings. Id. 6
The doctrine of collateral estoppel, often referred to as issue preclusion, is designed to prevent litigation of an issue in a later action, despite the fact that the later action is based on a cause of action different from the one previously litigated. Pucci v. Workers Compensation Appeal Board (Woodville State Hosp.), 707 A.2d 646, 647-48 (Pa. Cmwlth. 1998). Collateral estoppel applies where: (1) the issue decided in the prior case is identical to the one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the doctrine is asserted was a party or in privity with the party in the prior case and had a full and fair opportunity to litigate the issue; and (4) the determination in the prior proceeding was essential to the judgment. Id. at 648. Weney, 960 A.2d at 954. (emphasis in original). In the present case, Claimant s entitlement to benefits from August 5, 2005, to the present was addressed on two previous occasions. Initially, WCJ Weyl awarded total disability benefits to Claimant. However, the Board s October 30, 2006 Order, reversed that part of the decision and found that there was no evidence contained in the record supporting the award of total disability benefits as of August 3, 2005. Board s Order, October 30, 2006 at 8; R.R. at 41a. Claimant did not appeal this Order. Thereafter, Claimant again sought an award of total disability benefits in his Penalty Petition. That was denied by WCJ Perry on May 11, 2007. Again, Claimant did not appeal this determination. Then, Claimant filed a Reinstatement Petition and requested the same relief. Employer filed a Motion to Dismiss based on res judicata in response to Claimant s Reinstatement Petition. WCJ Perry denied Employer s Motion to Dismiss and Employer appealed. The Board remanded and noted, [i]f Claimant is here seeking, as it appears, a 7
reinstatement as of August 4, 2005, then the WCJ erred in denying Defendant s [Employer] Motion as it would appear that Claimant is simply seeking a second bite of the apple. Board s Order, June 29, 2009, at 5; R.R. at 80a. Claimant argues that the doctrine of res judicata does not apply because a Penalty Petition and a Reinstatement Petition do not involve identical claims. Claimant fails to recognize that his Reinstatement Petition sought the same relief as his Claim Petition and Penalty Petition. This Court finds no error on the part of the Board. C. Whether The Board Disregarded Substantial Evidence When It Upheld The Denial Of The Modification Petition. Claimant received total disability benefits from October 26, 2005, through October 30, 2006. 2 Claimant then received partial disability of $395.36 biweekly based on an earning power of $875.00 weekly. Claimant contends that he was entitled to a modification of benefits as of April 21, 2009, the date that he returned to work with Jiffy Lube, a post-injury employer, because his wages were lower. Claimant must prove that his physical disability has changed and that he is unable to perform his light duty job, and therefore, that he has suffered a 2 The Board determined that Claimant still bore the burden to show his physical condition or his power to earn $875.00 weekly change as of April 21, 2009 because of his work injury through no fault of his own. The record lacks such evidence. Board s Order, October 16, 2013, Conclusion of Law No. 8 at 6; Claimant s Brief at 48. 8
further loss of earning power. Volk v. Workmen s Compensation Appeal Board (Consolidation Coal Company), 647 A.2d 624 (Pa. Cmwlth. 1994). This proof must be made by precise and credible evidence which is of a more definite and specific nature than that upon which the initial compensation was based. Klingler v. Workmen s Compensation Appeal Board, 413 A.2d 432 (Pa. Cmwlth. 1980). Only when this burden has been satisfied, does the burden shift to Employer to demonstrate the availability of "lighter" light duty work within Claimant s new physical limitations. In the present case, Claimant was required to establish a worsening of his condition that resulted in work restrictions imposed on him on and after April 21, 2009. The only medical evidence Claimant presented was a Stipulation of Facts which was adopted in WCJ Puhala s November 13, 2009 Decision. The Stipulation indicates that Dr. Vaccaro released Claimant to light duty work on August 22, 2006, and agreed with Defendant s [AmeriHealth] expert s March 18, 2008 opinion that Claimant was capable of performing full-time light duty. Stipulation, November 10, 2009, (Stipulation) at 3; R.R. at 126a. The Stipulation further provided that Dr. Vaccaro continued to restrict Claimant to light duty work as a result of Claimant s October 7, 2004 work injury. Stipulation at 3; R.R. at 126a. Additionally, although Claimant testified that he began working at Jiffy Lube on April 21, 2009, he did not testify as to his physical condition prior to that date and how it worsened such that his earning power decreased. 9
There is no evidence that the light duty restrictions were modified or increased such that a worsening of his condition was established on or after April 21, 2009. Accordingly, Claimant s Modification Petition was correctly denied. D. Whether The Law Of The Case Doctrine Required That WCJ Puhala Follow WCJ Perry s Decision Denying Employer s Motion To Dismiss. Lastly, Claimant contends that the Board erred when it affirmed WCJ s Puhala s grant of AmeriHealth s Motion to Dismiss because WCJ Perry s earlier denial of AmeriHealth s Motion to Dismiss. Claimant bases his argument primarily on the law of the case doctrine which embodies the concept that a court involved in the later phases of a litigated matter should not reopen questions decided by another judge of the same court in the earlier phases of the litigation. National Railroad Passenger Corporation v. Fowler, 788 A.2d 1053 (Pa. Cmwlth. 2001). The Board s June 29, 2009, Order remanded the matter to the WCJ to provide explanation/clarification, based on the present record, as to why he stated the reinstatement being sought is as of October 31, 2006. If the reinstatement is being sought as of August 4, 2005, as alleged in the Petition, then the matter appears precluded by res judicata and/or collateral estoppel. Board s Order, June 29, 2009, at 5; R.R. at 80a. WCJ Puhala determined that reinstatement was being sought as of August 4, 2005. Pursuant to the Board s Opinion, the Reinstatement Petition is 10
barred by collateral estoppel and Claimant is not entitled to benefits. Based on the Board s remand, it did not violate the law of the case. Accordingly, the decision of the Board is affirmed. BERNARD L. McGINLEY, Judge 11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jason McGlory, : Petitioner : : v. : : Workers' Compensation Appeal : Board (A.W. Golden, Inc. Chevy/ : Cadillac and AmeriHealth Casualty : Insurance Company), : No. 2018 C.D. 2013 Respondents : O R D E R AND NOW, this 8 th day of July, 2014, decision of the Workers Compensation Appeal Board in the above-captioned matter is affirmed. BERNARD L. McGINLEY, Judge