IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Roosevelt McDaniel
, :

Petitioner :

: No. 7 97 C

. D. 201 6
v. : : Submitted: September 23 , 2016 Workers’ Compensation Appeal : Board ( Maramont Corporation), :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON , Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN , Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: December 20, 2016

Roosevelt McDaniel (Claimant) petitions for review of the April 20,
2016 order of the Workers’ Compensation Appeal Board (Board), which affirmed a Workers’ Compensation Judge’s (WCJ’s) decision granting his claim petition in part

.

Facts and Procedural His tory Claimant worked for Maramo nt Corporation ( Employer ) as a delivery assistant and his job duties consisted of loading and unloading trucks and making
deliveries. On July 21, 2010, Claimant was the passenger in a delivery truck that was traveling 10

- 15 miles per hour down a one

- way street. The truck swerved to the right to avoid hitting a pedestrian and sideswiped a car. As a result, Claimant was jerked
forward and back
, striking his head on the dashboard and his right elbow on the2

armrest. Claimant immediately reported the accident to his supervisor, Perry Pilson, who advised him to contact the police. Claimant did so and thereafter finished his
deliveries for the day. (WCJ’s 3/6/15 Decision, Findings of Fact Nos. 1(a)

- (e).)

The next day, C laiman t called off work and sought treatment at the Temple University Hospital Emergency Room for complaints of neck , elbow, and back pain. On July 23, 2010, Claimant reported to WorkNet upon the instruction of
Pilson , at which time he was required to undergo d rug testing. Claimant work ed a few days following the incident but was eventually laid off when his drug test returned a positive result for marijuana . Claimant had difficulty performing his job duties prior to his layoff because of back and elbow pain. Claimant believed that he would be working for Employer the entire summer. (WCJ’s March 6, 2016 Decision, Findings of Fact Nos. 1(e)

- (g), (j)

- (l) .)

On September 8, 2010, Claimant filed a claim petition alleging that he was totally disabled as a result of the injuries he sustained to his lower back and elbow on July 21, 2010. (WCJ’s January 27, 2012 Decision, Finding of Fact No. 1.) Employer filed a n answer denying the allegations of Claimant’s petition. (WCJ’s January 27, 2012 Decision, Finding of Fact No. 2.) The matter was assigned to WCJ Pamela Santoro, who proceeded with hearings. In support of his claim petition
, Claimant submitted his own d eposition testimony as well as the deposition testimony
of Michael Schina , M.D. In opposition, Employer submitted into evidence the deposition testimony of Claimant’s supervisor, Pilson; the deposition testimony of
David Kuntz , Ph.D. , the executive directo r of the lab that performed Claimant’s drug test; the deposition testimony of I. Howard Levin , M.D. , who performed an independent medical examination of Claimant ; the deposition testimony of Roy
Stahlman , M.D. , the WorkNet physician who evaluated Claimant two days after the3

motor vehicle accident; and medical records from Temple University Hospital. (Supplemental R eproduced Record (S.R

. R.) at 1 a

- 8a .)

By d ecision and o rder circulated January 27, 2012, WCJ Santoro granted
Claim ant’s claim p etition

. Id. In rendering her decision, WCJ Santoro credited the testimony of Claimant and Dr. Schina, and rejected Dr. Levin’s testimony as neither credible nor persuasive. Id. Employer appealed to the Board, arguing that WCJ
Santoro failed to review and/or analyz e the substantial evidence it presented, namely the deposition testimony of Pilson, Dr. Kuntz, Dr. Levin, and Dr. Stahlman, and the medical records from Temple University Hospital. 1 (S.R.R. at 9a

- 10a.) Further, Employer argued that WCJ Santoro failed to address the crucial issue in this case, i.e., whether Claimant’s loss of earnings was the result of his termination following a positive drug test. Id. Rather, Employer contended that WCJ Santoro merely adopted Claimant’s proposed findings. Id.

On Fe bruary 15, 2012, WCJ Santoro issued an a mended/ c orrected
d ecision
, still granting Claimant’s claim petition, but includ ing additional findings relating to the deposition testimony of Dr. Kuntz, Dr. S tahlman, and the medical records from Temple University H ospital. (S.R.R. at 11a

- 19a.) However, WCJ
Santoro again failed to review or analyze the deposition testimony of Pilson or Dr.
Levin , or address the issue of Claimant’s positive drug test. Id.

Employer thereafter filed a second appeal w ith the Board ar guing that
WCJ Santoro’s sua sponte issu anc e of an a mended/ c orrected d ecision was improper and inconsistent with section 131.112 of the Special Rules of Administrative Practice and Procedure Before Workers’ Compensation Judges, 34 Pa. Code §131.112 (providing that a WCJ may correct a typographical or clerical error, or obvious

1 WCJ Santoro did review a report submitted by Dr. Levin, but not his deposition testimony.4

omiss ion or error on her own motion or upon the motion of a party, but that any other corrections requires the written agreement of the parties). (S.R.R. at 20a

- 22a.) Employer reiterated its argu m e nt that WCJ Santoro failed to review or analyze the deposition testimony of Dr. Levin or the issue of Claimant’s positive drug test. Id. Further, Employer argued that the WCJ’s findings were not supported by substantial evidence and actually contradicted the evidence of record. Id.

By decision dated October 16, 2 013, the Board vacated both decisions by WCJ Santoro and remanded for further proceedings, de novo , relating to Claimant’s claim petition. (S.R.R. at 23a

- 28a.) The Board specifically recommended that the matter be assigned to a new WCJ. Id. In renderin g its decision, t he Board

no t ed that this Court has previously held that the “[i]ssuance of an Amended Order by the WCJ without written agreement of the parties that did not correct a typographical or clerical error or oversight, but obviously evidenced a change in analysis which affected the substantive rights of the parties was

. . . null and void.” 2 ( S

. R

. R

. at 2 7 a .)
The Board concluded that “the WCJ’s attempt to rehabilitate her earlier decision by referencing the omitted exhibits in her Amended/Corrected Decision did not accomplish that purpose” and made “substantive changes to the earlier Decision.” Id.
The Board further held that the WCJ erred by not reviewing all evidence of record and by failing to address Employer’s defense of term ination for cause, i.e., Claimant’s positive drug test. Id.

Despite the recommendation of the Board, the matter was reassigned to WCJ Santoro, who conducted a hearing on April 8, 2014. Following a lengthy pre

-

2 The Board cited our previous decisio ns in Varkey v. W orkers’ C ompensation Appeal Board (Cardone Industries) , 827 A.2d 1267 (Pa. Cmwlth. 2003) , and Butcher v. W orkm en’s Compensation Appeal Board (Treadway Resort Inn) , 517 A.2d 1023 (Pa. Cmwlth. 1986).5

trial conference with respective counsel for the parties, WCJ Santoro announced her agreement with the Board’s recommendation to reassign this matter to a new WCJ. (S.R.R. at 31a

. ) WCJ Santoro noted that “[b]oth counsel have agreed with [the reassignment].” (S.R.R. at 32a.) She went on to state that she was “ officially

re c using [her self

] from this case based upon the Remand and my c onversation with
Counsel ” and “given the series of events that have happened.” Id. She then noted
that “ [ b ] oth counsel have agreed to my recusal.” Id.

The matter was subsequently reassigned to WCJ Erin Young , who had previously been assigned a protective termination petition filed by Employer during the pendency of its appeals relating to Claimant’s claim petition

. At a hearing held with respect to Empl oyer’s termination petition on October 17, 2014, counsel for the parties reiterated that neither objected to the reassignment of the remanded claim petition to WCJ Young. The remanded c laim p etition was officially reassigned to WCJ Young on November 17, 2 014. ( S. R. R. at 34a

- 38a.)

By decision and order circulated March 6, 2015, WCJ Young granted
Claimant’s c laim p etition in part, concluding that Claimant had sustained his burden of proving that he sustained a compensable work injury on July 21, 2010, in t he
nature of a cervical and lumbar strain and sprain

. ( S.R. R. at 39a

- 52a.) However, WCJ Young further found that Claimant failed to meet his burden of proof with respect to disability resulting from the work injury or his allegations of additional injuri es. Id. The WCJ explained that Claimant returned to work following his injury and his subsequent loss of wages was the result of his termination from employment
for a cause wholly unrelated to his work injury. Id. Thus, the WCJ granted Employer a suspe nsion of Claimant’s benefits effective July 21, 2010

. Id. Further, accepting the testimony of Dr. Levin as credible that Claimant had fully recovered6

from his work injury as of the date of his examination of Claimant, January 6, 2011, WCJ Young granted Employer a termination of benefits effective as of that date. Id.

Claimant thereafter appealed to the Board , a rguing that WCJ Young’s findings were not supported by substantial evidence and that the Board lacked the authority to remand the mat ter to a new WCJ. ( S.R. R. at 53a

- 57a.) Nonetheless , t he
Board affirmed WCJ Young’s d ecision

. ( S.R. R. at 5 8 a

- 69a.)

On appeal to this Court, 3 Claimant argues that the Board erred and
exceeded its discretion in remanding the case to a different WCJ for de novo proceedings. 4 We disagree.

Discussion

Claimant acknowledges that the Board has broad discretionary authority under section 419 of the Workers’ Compensation Act (Act) 5 to remand to a WCJ. Section 419 provides as follows:

3 On appeal, our scope of review is limited to determining whether findings of fact are supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704, Meadow Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer) , 894 A.2d 214, 261 n

. 3 (Pa. Cmwlth. 2006).

4 In his petition for review, Claimant reiterated the argument he raised before the Board that WCJ Young’s findings were not supported by substantial evidence. However, in his brief, Claimant abandoned this argument and proceeded solely with the argument s et forth above. Thus, Claimant’s substantial evidence argument is waived. See Muretic v. Workers’ Compensation Appeal Board (Department of Labor & Industry) , 934 A.2d 752, 758 (Pa. Cmwlth. 2007) (holding that issues raised in a petition for review but no t addressed in a brief are waived).

5 Act of June 2, 1915, P.L. 736, as amended , 77 P.S. §852.7

The board may remand any case involving any question of fact arising under any appeal to a referee [ 6 ] to hear evidence and report to the board testimony taken before him or such testimony and findings of fact thereon as the board may order. The department may refer any questio n of fact arising out of any petition assigned to a referee, to any other referee to hear evidence, and report the testimony so taken thereon to the original referee. 77 P.S. §852; see also See Joseph v. W orkmen’s Compensation Appeal Board (Delphi Co.)
, 56 0 A.2d 755 (Pa. 1989). Indeed, in Joseph , our Supreme Court held
that the Board properly remanded a matter to the WCJ where the WCJ admittedly
closed the record prematurely without considering a party’s brief relating to a
determinative issue of insurabil ity. Here, the WCJ failed to consider the bulk of the evidence presented by Employer and, perhaps more importantly, failed to address the crucial issue of Claimant’s entitlement to benefits following the termination of his employment due to a failed drug test.

Moreover, we have previously noted that section 419 of the Act merely states that the Board may remand to “a referee,” and that “this language imposes no requirement that a case must always be remanded to a different referee . . . .” Boyd v. Workmen’s Compensation Appeal Board (Eichleay Corp.) , 631 A.2d 1111, 1113 (Pa. Cmwlth. 1993). The reverse is equally applicable, i.e., the language of section 419 imposes no requirement that the Board remand a matter to the same referee. In other words, section 419 is neither a statutory mandate that a case be remanded to an original referee, nor is i t a statutory prohibition on r emanding the matter to a new
referee

. Furthermore, we note that the Board did not direct that the matter be
transferred to a n ew WCJ, it only recommended that such action be taken, and the

6 Pursuant to s ections 109 and 401 of the Act, 77 P.S. §§29, 701, “referees” are now referred to as “WCJs.”8

record reveals that Claimant explicitly agreed to a remand to a different WCJ during hearings before both WCJ Santoro and WCJ Young. (S.R.R. at 32a, 35a.)

Nevertheless, Claimant ass erts that the Board lacked the authority to
remand the case for a de novo hearing and that such action by the Board amounts to the grant of a rehearing and a second bite at the apple for Employer. We d o not
agree. In her original decision, W CJ Santoro me rely adopted Claimant’s proposed findings and conclusions without addressing the evidence or principal issue submitted by Employer. While WCJ Santoro attempted to correct these substantial
defects via her sua sponte issuance of an amended/corrected decisi on, such decision still failed to consider the bulk of the evidence and the principal issue submitted by Employer and, as the Board held, was null and void. Additionally, contrary to Claimant’s argument, the Board’s remand does not amount to a rehearing o r a second bite at the apple . Rather, the Board’s remand essentially requires a complete review of all of the evidence submitted by the parties, a review that WCJ Santoro failed to conduct when rendering her original decision.

Because a remand for de nov o proceedings was appropriate given our review of the record in this case, and there is no authority prohibiting a remand to a new WCJ, the Board did not err or exceed its discretion.

Accordingly, the order of the Board is affirm ed

.

________________________________ PATRICIA A. McCULLOUGH, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Roosevelt McDaniel, :

Petitioner :

: No. 797 C.D. 2016
v. : : Workers’ Compensation Appeal : Board (Maramont Corporation), :

Respondent :

ORDER

AND NOW, this 20 th day of December , 201 6 , the April 20, 2016 order of the Workers’ Compensation Appeal Board is affirmed.

________________________________ PATRICIA A. McCULLOUGH, Judge