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, Judge1

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, we 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 (NTCP), acknowledging the injury as a thoracolumbar back 

strain or sprain. Pursuant to the Workers’ Compensation Act (Act),

2 Claimant filed 

a claim petition. Thereafter, Employer issued a medical-only Notice of 

 

1 This matter was assigned to this panel before September 1, 2019, when Judge Simpson assumed 

the status of senior 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 NTCP. 

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 the 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 

injury, Claimant suffered chronic pain syndrome for brachialplexus of the shoulder

and preexisting lumbar pain. In 2012, Dr. Brady ordered a magnetic resonance 

imaging (MRI) of Claimant’s spine, and it showed a “right paracentral herniated 

nucleus pulposus, although subtle it is encroaching on the right side of the cord on 

T-9, T-10L[,] and minimul bulging on the disc at T-7, T-8 levels[.]” Brady 

Deposition, 1/11/2013, at 14; Reproduced Record at 412a (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, but was capable of performing 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 thoracolumbar sprain or strain. 

He believed that Claimant would reach full recovery in six weeks and that Claimant 

was capable of doing medium-duty work until he reached full recovery. Dr. Bednarz

testified that the MRI did not indicate a stenosis or any condition that needed 

treatment. Rather, the MRI showed a nearly normal lumbar spine. 
3

The WCJ granted Claimant’s reinstatement 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 testimony 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 regarding [Claimant’s] work 

restrictions[.]

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 Briston’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, which 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 June 8, 2012. Dr. Kaiser testified that the 

2012 MRI showed a right-sided herniation at 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 disc 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 testified. 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 had passed 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 resolved 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 confirm 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 Claimant’s first review petition, the 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 termination 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. The Board held 

that Claimant 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 of law so that it could be determined whether res judicata precluded

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 judicata barred the second 

review petition. The Board found that WCJ Briston rendered a final decision on the 

merits of the first review petition because she made a specific factual finding that 

limited Claimant’s work injury to a thoracolumbar sprain/strain. Stated otherwise,

she denied Claimant’s review petition by not expanding the work injury to include 

herniation, as he requested. Because 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. Collateral 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 claims 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 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 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 doctrine 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 Appeal 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 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 a 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.

Both Claimant and Employer cite this Court’s holding in Henion, 776 

A.2d 362, to support their respective arguments. Claimant contends Henion

establishes that a second claim may be filed when the merits of the first claim have
8

not been addressed by the WCJ. Employer contends Henion is distinguishable

because the claimant in Henion did not file two identical claims, as Claimant has 

done in this case. 

In Henion, the claimant filed a specific loss petition for the loss of onehalf of his right middle finger. He withdrew the petition when the employer issued 

an NCP accepting liability for the work injury. The claimant then filed a claim 

petition, alleging that the work injury also included an injury to his right hand and 

right index finger. The claimant alleged this injury was separate and distinct from 

the specific loss award. The WCJ denied his claim, the Board affirmed, and no 

further appeal was taken. 

The claimant then filed a second claim petition, asserting that he 

suffered carpal tunnel syndrome in both hands as a result of his work injury. He also 

filed a review petition to have the 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 right hand and right 

index finger, and the second proceeding involved carpal tunnel syndrome in both 

hands. Collateral estoppel did not apply because the existence of carpal tunnel 

syndrome was neither litigated nor necessary to the first proceeding. Accordingly, 

we reversed the Board.

Employer arguesthat Henion is distinguishable because Claimant’s two 

review petitions are identical. We agree. Claimant did 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 this 
9

Court’s recent decision in Pinto v. Workers’ Compensation 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. The 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

address 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, the claimant filed a reinstatement petition and a review 

petition “seeking review of [the WCJ’s] description 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 not 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 reinstatement 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 appeal 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 Knouse v. 

 

6 Pinto is an unreported opinion. Under Section 414(a) of 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 resolved 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 

WCJ found that the claimant’s lumbar disc sprain was more appropriately described 

as an annular disruption. This Court agreed that using the “annular disruption”

terminology was a simple clarification occasioned by the medical experts’ testimony 

that a sprained low back was best described as an annular disruption. Id. at 336. 

This clarification did not implicate res judicata. 

Pinto distinguished Knouse and relied, instead, on Corbett v. Workers’ 

Compensation Appeal Board (Port Authority of Allegheny County) (Pa. Cmwlth., 

No. 2726 C.D. 2010, filed 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 the injuries, but he did 

not address the alleged low back injury. The claimant did not appeal. One year 

later, the claimant filed a review petition requesting that his work injury be amended

to include a low back injury. A second WCJ granted the review petition, 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 this 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 appeal the grant of benefits. 

We disagreed. We held that the claimant had standing to appeal because the claim 

petition alleged five injuries, and the 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 explained

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 medical reports and imaging of cervical herniations. 

[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 importance 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 herniations 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 cervical 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 added; internal footnote omitted). We concluded 

that the claimant was aggrieved because she prevailed in the first proceeding only in 

part. Therefore, she was required to appeal to the Board. Because the claimant did 

not appeal, 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 seeks to add a thoracic disc herniation to the 

description of his work injury. This is a substantive change and not a mere 
12

clarification. WCJ Briston summarized the evidence presented on the thoracic disc 

herniation, but she did not make a finding that it was work-related. Because the 

WCJ’s description of his injury omitted the thoracic disc herniation, Claimant could 

have appealed to the Board. Because Claimant 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 Judge
IN 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 22nd day of November, 2019, the order of the 

Workers’ Compensation Appeal Board, dated April 3, 2019, is hereby AFFIRMED.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge