IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scott Rosenberry, : Petitioner :

: v. : No. 446 C.D. 2019
: Submitted: July 26, 2019 Workers' Compensation Appeal : Board (Ramsey Construction, LLC), : Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge 1 HONORABLE MICHAEL H. WOJCIK , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY PRESIDENT JUDGE LEAVITT FILED: November 22, 2019

Scott Rosenberry (Claimant) petitions for review of an adjudication of the Workers’ Compensation Appeal Board ( Board) holding that Claimant’s review petition was barred by res judicata . Claimant contends the Board erred because the claims in his review petition were not decided in an earlier proceeding on his reinstatement and review petitions

. Discerning no error by the Board, w e affirm.

Claimant worked as a laborer for Ramsey Construction , LLC (Employer). On June 4, 2012, while dumping construction debris from a
wheelbarrow , he sustained a back injury. Employer issued a Notice of Temporary Compensation Payable (NT CP), acknowledging t he injury as a thoracolumbar back strain or sprain . P ursuant to the Workers’ Compensation Act (Act)
, 2 Claimant filed

a c laim petition. Thereafter, Employer issued a me dical

- only Notice of

1 This matter was assigned to this panel before September 1, 2019, when Judge Simpson assumed the status of s enior judge.

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

- 1041.4, 2501

- 2710.2

Compensation Payable (NCP) for the work injury acknowledged in the NT CP

. Claimant amended his claim petition to make it a reinstatement petition and also filed a review petition to add a thoracic disc herniation to the description of t he work injury. The reinstatement and review petitions were assigned to WCJ Pamela Briston. In support of his review petition, Claimant offered the deposition testimony of his family doctor, Joanna M. Brady, M.D. She testified that prior to the work
in jury
, Claimant suffered chr onic pain syndrome for brachial plexus of the shoulder
and pre existing lumbar pain. In 2012, Dr. Brady ordered a magnetic resonance imaging ( MRI ) of Claimant’s spine, and it showed a “r ight paracentral herniated
nucleus pulpo sus, although subtle it is encroaching on the right side of the cord on
T

- 9, T

- 10L[,] and min imul bulging on the disc at T

- 7, T

- 8 levels [.]” Brady Deposition, 1/11/2013, at 14; Reproduced Record at 412 a (R.R. __). With respect
to the thoracic disc herniation on the MRI report , Dr. Brady testified that it “could
have occurred at any time ” and she could not be sure it related to the work injury. Brady Deposition at 29; R.R. 415a

. Dr. Brady opined that Claimant could not return to his position with Employer, b ut was capable of per forming sedentary work. Dr. Brady’s restrictions were based on Claimant’s subjective complaints of pain.

Employer presented the testimony of Lucian P. Bednarz, M.D. , who completed an independent medical evaluation (IME) of Claimant on August 17,
2012. Dr. Bednarz found that Claimant suffered a thor acolumbar sprain or strain.
He believed that Claimant would reach full recovery in six weeks and that Claimant was capable o f doing medium

- duty work until he reached full recovery . Dr. Bednarz testified that the MRI did not indicate a stenosis or any condition that need ed

treatment. Rather, the MRI showed a nearly normal lumbar spine

.3 The WCJ granted Claimant’s reinstatemen t petition. In her decision, WCJ Briston found, in relevant part, as follows:

Based upon a review of the foregoing, as well as all evidence of record, I find that [Claimant] has met his burden of proof in the reinstatement petition.

a. I accept the testimon y of [Claimant] as credible that he sustained a low back injury or thoracolumbar myoligamentous sprain/strain o[n] June 4, 2012.

b. I accept the opinions of Dr. Bednarz as credible regarding the description of injury, and I note that Dr. Brady could not state that the herniation shown on the MRI was related to the work injury, as it could have occurred at any time.

c. As far as [Claimant’s] ability to work as of September, 2012, I accept the opinions of Dr. Brady as more credible than Dr. Bednarz at that time reg arding [Claimant’s ] work restr ictions[.]

WCJ Briston Decision, 8/27/2013, at 5, Finding of Fact No. 12

. In granting Claimant’s reinstatement petition , WCJ Briston did not make any reference to
Claimant’s review petition . Neither party appealed WCJ Bristo n’s decision.

On April 23, 2014, Employer filed a termination petition, asserting that Claimant had fully recovered from his work injury and could return to work without restrictions as of March 17, 2014. Claimant filed a second review petition seeking to add a thoracic disc herniation to the description of his work injury. Employer argued that Claimant’ s second review petition was barred by the doctrine of res judicata

. The petitions were assigned to WCJ Brian Eader. 3

3 Employer also filed a petition for review of a utilization review determination, whic h was denied by WCJ Eader and not appealed to the Board.4

Claimant presented the testimony of his chiropractor, Gordon Kaiser,
D.C. , who began treating Claimant on J une 8, 2012. Dr. Kaiser testified that the
2012 MRI showed a right

- sided herniation a t the T7

- 8 or T8

- 9 disc level and opined
that the herniation was caused by Claimant’s work injury. A second MRI done in
2014 showed the 2012 herniation and additional di sc degeneration. Dr. Kaiser diagnosed Claimant with a work

- related disc protrusion with myelopathy and continued muscle spasm. Dr. Kaiser did not believe Claimant could return to his

pre

- injury job but was capable of sedentary work.

Dr. Brady also testif

ied. She explained that at the time of the deposition for the 2012 proceeding , she was unable to determine that the thoracic disc
herniation shown on the 2012 MRI was work related . However, due to the length of
time that ha d pa ssed without improvement in Claimant’s symptoms, she now
believed that Claimant’s work injury caused the thoracic disc herniation.

Employer presented the testimony of Arnold Berman, M.D., an orthopedic surgeon , who did an IME of Claimant on March 17, 2014. Dr. Berman opined that Claimant’s accepted work injury had resolve d because no objective
manifestations of injury were found in his IME. Dr. Berman rejected the 2012 MRI
report of disc bulge and herniation because his clinical examination done nearly two years later could not c onfirm them

.

WCJ Eader rejected Employer’s argument that the review petition was barred by res judicata . WCJ Briston had granted Claimant’s reinstatement petition without addressing Claimant’s review petition

. Because a final ruling was never issued on Cl aimant’s first review petition, t he second review petition was not barred by res judicata

.5 On the merits
, WCJ Eader credited the opinions of Drs. Kaiser and Brady and rejected the opinion of Dr. Berman. Accordingly , WCJ Eader denied Employer’s terminat ion petition and granted Claimant’s second review petition, amending the description of the work injury to include a thoracic disc herniation.

Employer appealed to the Board, arguing that WCJ Eader erred in rejecting its res judicata defense to Claimant ’s review petition. 4 The Board agreed.
It observed that WCJ Briston specifically relied on Dr. Brady’s admission that the thoracic disc herniation “could have occurred at any time ” and was unable to relate it to Claimant’s work injury

. Board Adjudication, 12/29/2016
, at 3 (quoting WCJ Briston Decision, 8/27/2013, at 4, Finding of Fact No. 5 ). Further, WCJ Briston found that Claimant’s work injury was a “ thoracolumbar myoligamentous sprain/strain. ” Board Adjudication, 12/29/2016, at 3 ( quoting WCJ Briston Decision, 8/27/2013, at 6, Finding of Fact No. 7 ). Although WCJ Briston ’s decision
did not expressly address Claimant’s review petition
, it accepted Dr. Bednarz’s opinion that the description of the injury should not be expanded. Th e Board held
that Clai mant should have appealed WCJ Briston’s decision limiting his work injury to a sprain

. Claimant petitioned for this Court’s review . In Rosenberry v. Workers’ Compensation Appeal Board (Ramsey Construction, LLC) (Pa. Cmwlth., No. 67 C.D. 2017, filed December 20, 2017), we concluded that we could not say whether
WCJ Briston had addressed Claimant’s review petition

. Accordingly, we vacated the Board’s adjudication and remanded the matter to a WCJ for findings of fact and
conclusions o f law so that it could be determine d whether res judicata preclude d Claimant’s second review petition.

4 Employer did not appeal the denial of its termination petition.6 The remand matter was assigned to WCJ Eader, who concluded that
WCJ Briston did not make an express ruling on Claimant’s first review petition but
did grant Claimant’s reinstatement petition. As such, WCJ Eader concluded that
without a final judgment on the merits of the first review petition
, res judicata did not bar Claimant’s second review petition. WCJ Eader granted the second review petition and amended the description of the injury to include a thoracic disc
herniation. Employer appealed to the Board , which concluded that Employer’s appeal raised a purely legal question
, i.e., whether res judicat a barred the second review petition. The Board found that WCJ Briston rendered a final decision on the
meri ts of the first review petition because she made a specific factual finding that
limited Claimant’s work injury to a thoracolumbar sprain/strain. S tated otherwise,
she denied Claimant’s review petition by not expanding the work injury to include
herniation
, as he requested

. B ecause Claimant did not appeal WCJ Briston’s decision to the Board, it became a final adjudication on the scope of Claimant’s work injury . This precluded Claimant’s second review petition.

Claimant has again petitioned for this Court’s review

. 5 Claimant
contends the Board erred in holding that res judicata barred his second review petition because WCJ Briston did not formally rule on his first review petition.

We begin with a review of the doctrines res judicata and collateral estoppel. C ollateral estoppel is encompassed within the doctrine of res judicata
,

5 This Court’ s review of an order of the Board determines “whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, [or] whether constitutional rights were violated or an error of law was committed.” Ingrassia v. Workers’ Compensation Appeal Board (Universal Health Services, Inc.) , 126 A.3d 394, 400 n.6 (Pa. Cmwlth. 2015) . Regarding questions of law, our review is plenary. American Road Lines v. Workers’ Compensation Appeal Board (Royal) , 39 A.3d 603, 610 n.6 (Pa. Cmwlth. 2012)

.7

which “prevents the relitigation of claim s and issues in subsequent proceedings.” Henion v. Workers’ Compensation Appeal Board (Firpo & Sons, Inc.) , 776 A.2d 362, 365 (Pa. Cmwlth. 2001)

. In technical res judicata , often called 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 ca use 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 will bar “claims that were actually litigated as well as those
matters that should have been litigated.” Id. Further
, “ 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.

The do ctrine of collateral estoppel, often called issue preclusion, “is designed to prevent relitigation 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 App eal Board (Woodville State Hospital ) , 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 on e prese nted in the later case; 2) there was a final judgment on the meri ts; 3) the party against whom the doctrine is asserted was a party or in privity with a party in the prior case and had a full and fair opportun ity to litigate the issue; and 4) the determina tion in the prior proceeding was essential to the judgment.

Id . at 648

. Both Claimant and Employer cite this Court’s holding in Henion , 776
A.2d 362
, to support their respective arguments

. Claimant contends Henion
establish es that a second claim may be file d when the merits of the first claim have8

not been addressed by the WCJ . Employer contends Henion is distinguishable
because the claimant in Henion did not file two iden tical claims, as Claimant has
done in this case

.

In Henion , the claimant filed a specific loss petition for the loss of one

half of his right middle finge r . He withdrew the petition when the employer issued

an NCP accepting liability for the work injury

. The c laimant then filed a claim petition
, alleging that t he work injury also included an injury to his r ight hand and right index finger. The claimant alleged this injury was separate and distinct from the specific loss aw ard. The WCJ denied his claim, the Board affirmed, and no further appeal was taken.

The c laimant then filed a second claim petition, asserting that he suffered carpal tunn el syndrome in both hands as a result of his work injury. He also filed a review petition to have t he NCP amended to include carpal tunnel syndrome. The employer asserted that the second claim petition and the review petition were barred by res judicata . The WCJ agreed
, and the Board affirmed. On appeal, this
Court concluded that res judicata did not apply because the causes of action were not identical. The first proceeding involved an injury to the ri ght hand and right index finger, and the second proceeding involved car pal tunnel syndrome in both
hands . C ollateral estoppel did not apply because the exi stence of carpal tunnel syndrome was neither litigated nor necessary to the first proceeding. Accordingly,
we reversed the Board.

Employer argues that Henion is distinguishable because Claimant’s two review petitions are identical. We agree. Claimant di d not appeal WCJ Briston’s
decision and, instead, filed a second review petition to litigate the identical issue. Res judicata bars his second review petition . This conclusion is consistent with this9

Court’s recent decision in Pinto v. Workers’ Compensat ion Appeal Board (Main Line Healthcare) (Pa. Cmwlth., No. 739 C.D. 2018, filed February 22, 2019). 6

In Pinto , the claimant filed a claim petition alleging that a fall at work
had injured the cervical, thoracic and lumbar regions of his spine . T he WCJ found
that the work injury “shall be defined to include lumbar strain/sprain and lumbosacral radiculitis[.]” Id. , slip op. at 4 (quoting 2015 WCJ decision). The claimant alleged that the injury also caused cervical herniations, but the WCJ did not
addres s that claim. The claimant did not appeal to the Board. 7

Several months later , the employer denied liability for the claimant’s neck surgery. In response, t he claimant filed a reinstatement petition and a review petition “ seeking review of [the WCJ’s] de scription of the work injury ....” Pinto , slip op. at 5. The employer argued that the claimant’s review petition was barred by res judicata . The claimant responded that she was no t seeking to expand the injury but sought only a clarification of the WCJ’s earlier decision

. Rejecting the employer’s res judicata argument, the WCJ granted both the re in statement and review petitions

.

The employer appealed to the Board, which reversed

. It held a WCJ

cannot review the merits of another WCJ ’s decision. Rather, the merits of a WCJ’s
decision may be addressed only by a ppeal to the Board

. This Court affirmed the
Board

. In doing so, this Court acknowledged that clarification of a WCJ
decision can be appropriate in some circumstances

. For example, in Knous e v.

6 Pinto is an unreported o pinion. Under Section 414(a) o f this Court’s Internal Operating Procedures, an unreported opinion may be cited for its persuasive value. 210 Pa. Code §69.414(a).

7 The employer appealed to the Board. The appeal was limited to the length of time the claimant was entitled to benefits. The parties re solved the issue pursuant to a stipulation of facts, approved by the Board.10

Workers’ Compensation Appeal Board (G.O.D., Inc.) , 886 A.2d 329 (Pa. Cmwlth. 2005), a WCJ found that the claimant suffered a work

- related lumbar disc sprain but

not a disc herniation. Years later, in the course of a reinstatement petition
, the same
W CJ found that t he claimant’s lumbar disc sprain was more appropriately described as an annular disruption. This Court agreed that using the “ annular disruption ” terminology was a sim

p le clarification occasioned by the medical experts ’ testimony that a spr ained low back was best described as an annular disruption

. Id. at 336.
This clarification did not implicate res judicata

.

Pinto distinguished Knouse and relied, i nstead, on Corbett v. Workers’ Compensation Appeal Board (Port Authority of Allegheny County) (Pa. Cmwlth., No. 2726 C.D. 2010, f

iled August 24, 2011)

. In Corbett , the claimant filed a claim petition alleging injuries to his left shoulder, neck, left leg, left hip and low back.
The WCJ granted the claim petition on the basis of four of th e injuries, but he did
not address the alleged low back injury. The c laimant did not appeal. One year later, the claimant filed a review petition requesting that his work injury be amended

t o include a low back injury. A second WCJ granted the review pe tition, rejecting the employer ’ s res judicata defense

. The WCJ reasoned that the claimant could not have appealed the first WCJ’s determination because it granted his claim petition

. The Board reversed, explaining that the description of a work injury was fundamental to the decision . As such, res judicata barred the Claimant’s review petition , and t his Court affirmed

.

In his appeal to this Court, the claimant argued that the omission of the back injury was a mistake and that he lacked standing to app eal the grant of benefits

. We disagree d . We held that the claimant had standing to appeal because the claim petition alleged five injuries, and t he WCJ accepted only four of the alleged injuries

.11

Because the WCJ did not find the alleged low back injury work

- related
, the Claimant had standing to appeal to the Board.

In Pinto , we found the holding in Corbett dispositive. We explain ed
our decision on res judicata as follows :

The Court must conclude that the relief sought by [the claimant]

– the inclusion of cervical herniation in her injury description

– is a substantive change rather than a clarification and that the elements of technical res judicata are met. Before [the first WCJ, the claimant] asserted an injury to the cervical spine and submitted me dical reports and imaging of cervical herniation s

. [The first WCJ] summarized this evidence, as well as [the employer’s] evidence, in findings of fact, but did not make any specific finding as to which evidence he accepted and which he rejected. Of impor tance here, he omitted cervical herniations from the injury description, without even cursory reasoning as to why. [] These omissions are not small [as the claimant] now asserts that cervical herniation s are why she cannot work and is entitled to benefits. Even if, as [the claimant] urges, the evidence presented ... was adequate to support a determination that [she] suffered a work injury of which cerv ical herniations were a part, [the WCJ] did not include them in describing her injury. The omission, if a mistake, would have properly been brought in an appeal [to the Board].

Pinto , slip op

. at 10

- 11 (emphasis add ed; internal footnote omitted). We concluded
that the claimant was aggrieved b ecause she prevailed in the first proceeding only in
part. Therefore, she was required to appeal to the Board. Because the claimant did

not ap peal, the first WCJ’s decision became final and could not be collaterally attacked by a later review petition.

Returning to the present case, we conclude that Pinto provides the relevant precedent . Claimant seek s to add a thoracic disc herniation to the description of his work injury . This is a substantive change and not a mere12

clarification. WCJ Briston summ arized the evidence presented on the thoracic disc herniation, but she did not make a finding that it was work

- related. B ecause the
WCJ’s description of his injury omitte d the thoracic disc herniation, Claimant could
have appeal ed to the Board

. Because C laimant did not appeal , WCJ Briston’s decision is final and cannot be collaterally attacked by a second review petition.

For the above reasons, we affirm the order of the Board.

_____________________________________ MARY HANNAH LEAVITT, President JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scott Rosenberry, : Petitioner :

: v. : No. 446 C.D. 2019
: Workers' Compensation Appeal : Board (Ramsey Construction, LLC), : Respondent :

O R D E R

AND NOW, this 22 nd day of November , 2019, the order of the Workers’ Comp ensation Appeal Board, dated April 3, 2019, is hereby AFFIRMED.

_____________________________________ MARY HANNAH LEAVITT, President Judge