IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Roosevelt McDaniel, :

Petitioner :

: No. 797 C.D. 2016

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 History

Claimant worked for Maramont 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 the 
2

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, Claimant 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 drug testing. Claimant worked 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 an 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 deposition 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 director 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 the 
3

motor vehicle accident; and medical records from Temple University Hospital. 

(Supplemental Reproduced Record (S.R.R.) at 1a-8a.) 

By decision and order circulated January 27, 2012, WCJ Santoro granted 

Claimant’s claim petition. 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 analyze 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 February 15, 2012, WCJ Santoro issued an amended/corrected 

decision, still granting Claimant’s claim petition, but including additional findings 

relating to the deposition testimony of Dr. Kuntz, Dr. Stahlman, and the medical 

records from Temple University Hospital. (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 with the Board arguing that 

WCJ Santoro’s sua sponte issuance of an amended/corrected decision 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

omission 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 argument 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, 2013, 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 rendering its decision, the Board 

noted 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 27a.) 

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 termination 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 decisions in Varkey v. Workers’ Compensation Appeal 

Board (Cardone Industries), 827 A.2d 1267 (Pa. Cmwlth. 2003), and Butcher v. Workmen’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 

recusing [herself] from this case based upon the Remand and my conversation 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 Employer’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 claim petition was officially reassigned to 

WCJ Young on November 17, 2014. (S.R.R. at 34a-38a.)

By decision and order circulated March 6, 2015, WCJ Young granted 

Claimant’s claim petition in part, concluding that Claimant had sustained his burden 

of proving that he sustained a compensable work injury on July 21, 2010, in the 

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 

injuries. 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 suspension of Claimant’s benefits effective July 21, 2010. Id. Further, 

accepting the testimony of Dr. Levin as credible that Claimant had fully recovered 
6

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, arguing that WCJ Young’s 

findings were not supported by substantial evidence and that the Board lacked the 

authority to remand the matter to a new WCJ. (S.R.R. at 53a-57a.) Nonetheless, the 

Board affirmed WCJ Young’s decision. (S.R.R. at 58a-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)5to 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 set 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 not 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 question 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. Workmen’s Compensation Appeal Board

(Delphi Co.), 560 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 insurability. 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 it a statutory prohibition on remanding the matter to a new 

referee. Furthermore, we note that the Board did not direct that the matter be 

transferred to a new WCJ, it only recommended that such action be taken, and the 

 

6

Pursuant to sections 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 asserts 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 do not 

agree.

In her original decision, WCJ Santoro merely 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 decision, 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 or 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 novo 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 affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge
IN 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 20th day of December, 2016, the April 20, 2016

order of the Workers’ Compensation Appeal Board is affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge