IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Greater Hazleton Health Alliance, :

Petitioner :

 :

v. : No. 1309 C.D. 2018

 : Submitted: January 18, 2019

Workers’ Compensation Appeal :

Board (Zito), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: June 6, 2019

Greater Hazleton Health Alliance (Employer) petitions for review of the 

Order of the Workers’ Compensation Appeal Board (Board) that affirmed the 

decision of Workers’ Compensation Judge (WCJ) Brian Hemak (WCJ Hemak) that, 

in relevant part, granted the Penalty Petition filed by Marie Zito (Claimant). 

Pertinently, WCJ Hemak found that Employer violated the Workers’ Compensation 

Act1(Act) by not paying for medications prescribed by Shailen Jalali, M.D., and 

filled by Alliance Medication Services (Alliance), that were causally related to 

Claimant’s work injury. WCJ Hemak directed Employer to pay for those 

medications and imposed a 50-percent penalty. On appeal, Employer argues the 

Board erred in affirming WCJ Hemak’s decision, which was based on WCJ Hemak

 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501-2710.
2

crediting Dr. Jalali’s testimony, where Dr. Jalali’s treatment and diagnoses had been 

previously rejected by WCJ Susan Caravaggio (WCJ Caravaggio), the Board, and 

this Court in Zito v. Workers’ Compensation Appeal Board (Northeastern 

Pennsylvania Health Alliance) (Pa. Cmwlth., No. 138 C.D. 2017, filed September

14, 2017) (Zito I). After review, we affirm the Board’s Order.

I. Background

A. Claimant’s Injury and Treatment Generally

On October 7, 2010, Claimant, a registered nurse, sustained a work-related 

injury to her right hand, which was accepted by Employer in a notice of 

compensation payable (NCP). Claimant received temporary total disability benefits 

for a period of time, which were suspended when she returned to work with no loss 

of earnings. She has received various treatments for this injury, including multiple 

surgeries and medications to alleviate her pain, from various physicians. These

physicians include: Jay S. Talsania, M.D., the orthopedic surgeon who is primarily 

responsible for the treatment of Claimant’s right hand injury; Eugene Gorski, M.D., 

Claimant’s primary care physician who was responsible for managing Claimant’s 

pain medications; and Dr. Jalali, a pain management specialist who assumed 

responsibility for managing Claimant’s medications on March 31, 2015. The current 

Penalty Petition is based on Employer’s nonpayment of medications prescribed by 

Dr. Jalali beginning in November 2015. 

B. Prior Litigation

Claimant’s receipt of benefits and the payment of her medical bills for her 

work-related injury have been the subject of much litigation. By decision and order 

of April 15, 2014, WCJ Wayne Rapkin (WCJ Rapkin) granted Claimant’s 
3

reinstatement, review, and penalty petitions. Claimant’s benefits were reinstated

from October 7, 2010, through November 10, 2010, and from August 23, 2012, 

onward. WCJ Rapkin amended the description of the injury, based on the testimony 

of Dr. Talsania, from “right hand,” as described in the NCP, to “scapholuna[t]e 

ligament tear, status post scope and debridement, status post recent capsulodesis, 

de[]Quervain’s tendonitis, index trigger, and cubital tunnel.” (WCJ Hemak 

Decision, Findings of Fact (Hemak FOF) ¶¶ 2-3.) In addition, WCJ Rapkin ordered 

Employer to pay penalties based on its “failure to pay medical bills on and after 

August 23, 2012, and penalties for failure to reimburse Claimant’s mileage 

expense[s] for medical treatment.” (Id. ¶ 3.)

On July 6, 2016, WCJ Caravaggio issued a decision2 denying Claimant’s 

petitions to review compensation benefits and medical treatment and/or billing, 

which Claimant filed on June 30, 2015. Zito I, slip op. at 1. Through these petitions, 

Claimant “sought to expand the description of [her work-related] injury to include 

brachial plexopathy, neuropathic pain, cervical radiculitis, rotator cuff injury[,] and 

possible [Complex Regional Pain Syndrome] of the right upper extremity.” Id. at 3

(second alteration added). Claimant relied on Dr. Jalali’s opinion, and that of 

another physician, that her work injury included those injuries. WCJ Caravaggio 

did not credit those opinions, and, therefore, found that Claimant had not met her 

 

2 Prior to WCJ Caravaggio’s July 2016 decision, she issued a decision on March 31, 2016, 

granting penalty, reinstatement, and review petitions filed by Claimant. WCJ Caravaggio set aside 

an impairment rating evaluation (IRE) and reinstated Claimant’s total disability benefits as of July 

9, 2014, that had been modified based on the IRE. (Hemak FOF ¶ 4; WCJ Caravaggio Decision, 

March 31, 2016, Conclusion of Law ¶ 3.) WCJ Caravaggio also directed Employer to pay the 

medical bills that WCJ Rapkin had ordered Employer to pay, which had not been paid. She further 

directed Employer to pay the 25-percent penalty on the unpaid medical bills imposed by WCJ 

Rapkin, an additional 25-percent penalty on those unpaid medical bills, and a 50-percent penalty 

“on the amount of penalties that [WCJ] Rapkin had previously ordered to be paid.” (Hemak FOF 

¶ 4; WCJ Caravaggio Decision, March 31, 2016, Order.)
4

burden of proving that her work-related injury included these additional injuries. Id.

at 6-7. The Board affirmed WCJ Caravaggio’s decision on January 13, 2017, and 

this Court affirmed in Zito I.

C. Current Penalty Petition

While Claimant’s appeals of WCJ Caravaggio’s July 2016 decision were 

pending before the Board and this Court, Claimant filed the current Penalty Petition 

on September 21, 2016, asserting that Employer was not paying for reasonable and 

necessary medical expenses including medications prescribed by Dr. Jalali that were 

causally related to her work injury.3 (Hemak FOF ¶ 7; Reproduced Record (R.R.) at 

64a.) The Penalty Petition was assigned to WCJ Hemak, who held hearings at which 

Claimant presented her own testimony and the deposition testimony of Dr. Jalali, 

Alliance’s Office Manager, and Alliance’s Collections Manager. 

Claimant testified as follows.4 Dr. Talsania initially prescribed the 

medications for Claimant’s work-related injury, after which Dr. Gorski assumed 

responsibility for her medications. Ultimately, Dr. Jalali took over her pain 

management and, when he did, Claimant was required “to sign an agreement stating 

that she would not seek or accept pain medication from any other physician.” 

(Hemak FOF ¶ 12.) “The only change Dr. Jalali made to Claimant’s medications

 

3 Claimant filed a second penalty petition, asserting that Employer failed to consistently 

pay her wage loss benefits. After Employer “could not provide any explanation for the gaps” in 

the payments or its erratic payments, WCJ Hemak granted that penalty petition. (Hemak FOF 

¶ 11; WCJ Hemak Decision, Conclusion of Law (Hemak COL) ¶¶ 2-3.) Employer did not appeal

that decision.

4 Claimant’s testimony is summarized in Hemak FOF ¶¶ 10-12 and is found at pages 99a107a and 119a-22a of the Reproduced Record.
5

was to switch [her] from Neurontin to Trilept[al] due to some side effects [she] was 

experiencing with Neurontin.” (Id. ¶¶ 12, 15.) 

Dr. Jalali’s January 10, 2017 deposition testimony5set forth his professional 

qualifications, a history of Claimant’s pain management regimen, and his treatment 

of Claimant since he assumed her medication management in March 2015. He is 

board-certified in pain management and anesthesiology, and has focused his practice 

on pain management for the past 20 years. Claimant was referred to him, and her 

primary complaint was and has remained right upper extremity pain. As part of 

Claimant’s treatment with Dr. Jalali, Claimant undergoes random drug screening 

and is required to agree annually not to obtain pain medication from other medical 

providers. (R.R. at 136a-37a.) In terms of Claimant’s medications, “Dr. Jalali took 

over Claimant’s anti-convulsant therapy, muscle relaxant therapy[,] and narcotic 

management therapy.” (Hemak FOF ¶ 15.) As part of his management of 

Claimant’s medications, Dr. Jalali added a long-acting opioid (Hysingla), switched 

Percocet to Oxycodone because Claimant did not need the acetaminophen that is in 

Percocet, changed Neurontin to Trileptal due to Claimant developing adverse 

reactions to the former, and switched Tizanidine to Lorzone as the former was 

causing sedation. (Id.; R.R. at 139a-40a.) Other than adding the Hysingla, Dr. Jalali 

explained his medications did not differ significantly from those prescribed by Dr. 

Gorski as he was prescribing the same classification of medications. (R.R. at 148a.) 

In other words, he exchanged one narcotic medication for another, one anticonvulsant medication for another, and one muscle relaxant for another. (Id. at 139a40a, 148a.) After further monitoring, Dr. Jalali switched Claimant from Lorzone to 

 

5 This deposition testimony is summarized in Hemak FOF ¶ 15 and is found at pages 128a59a of the Reproduced Record. Attached to that deposition as an exhibit was Dr. Jalali’s deposition 

testimony from Zito I.
6

Amrix due to an adverse reaction and added Melatonin to aid Claimant’s sleeping 

patterns. He continued to monitor these medications to address Claimant’s 

complaints of pain in her right upper extremity.

On September 13, 2016, Dr. Jalali changed his diagnoses from those he gave

in Zito I to the ones found to be work-related by WCJ Rapkin. This change, he 

explained, “would not impact the medication management since the treatment would 

remain the same regardless of the diagnosis attached to the condition.” (Hemak FOF 

¶ 15.) Dr. Jalali opined this was because, regardless of the diagnoses, Claimant “had 

a combination of localized pain as well as what appears to be neuropathic-type pain 

as far as the pain being both aching as well as tender in nature.” (R.R. at 147a.) Dr. 

Jalali confirmed the treatment he provides to Claimant is related to her October 7, 

2010 work injury and the purpose of the treatment is “to address Claimant’s right 

upper extremity pain.” (Hemak FOF ¶ 15.) 

Office Manager testified in her deposition as follows.6 Alliance provides 

workers’ compensation claimants pharmaceuticals, and started providing Claimant 

her medications on June 2, 2015. Office Manager is responsible for submitting bills 

to employers and, if payment is denied, a different Alliance department takes over. 

On May 26, 2015, Alliance submitted letters of medical necessity by Dr. Jalali for 

the prescriptions. A separate letter was submitted on August 20, 2016, for the 

Amrix. Employer stopped paying for Claimant’s prescriptions on November 19, 

2015. On various dates between November 20, 2015, and December 13, 2016,

Alliance submitted or resubmitted to Employer Health Care Finance Administration 

(HCFA) forms, invoices, Workers’ Compensation Bureau LIBC-9 forms, and

prescriptions from Dr. Jalali reflecting the medications were for Claimant’s work-

 

6 This deposition testimony is summarized in Hemak FOF ¶ 16 and is found at pages 281a304a of the Reproduced Record.
7

related chronic intractable pain. Those forms and documents provided explanations 

of why the medications were necessary to control Claimant’s right hand pain and 

muscle spasms and to treat Claimant’s chronic intractable pain. (R.R. at 335a-40a, 

345a-48a, 357a-60a, 369a-72a, 382a-85a, 404a-06a, 415a-18a, 427a-30a, 437a-40a, 

447a-50a, 457a-60a, 466a-69a, 486a-88a, 503a.) With few exceptions, Employer 

denied payment for these prescriptions. Alliance had most recently submitted the 

above items to Employer for payment on January 10, 2017.

Collections Manager testified in her deposition as follows.7 After Alliance 

submitted invoices and materials to Employer, Employer denied payment “per 

adjuster’s request.” (Hemak FOF ¶ 17.) Alliance submitted numerous denied 

invoices for fee reviews under the Act, challenging Employer’s denials. Numerous 

Fee Review Determinations were issued directing Employer to pay Alliance for the 

prescriptions, but Alliance never received payment from Employer. Other fee 

reviews were denied due to lack of prescription or certificate of medical necessity, 

but Alliance was appealing those determinations. Still, other fee reviews were 

denied due to outstanding issues as to causal relatedness to the work injury. The 

total outstanding balance for Claimant’s prescriptions was $39,592.67.

In its defense, Employer “explained that the subject bills were not being paid 

in light of the Decision and Order of [WCJ] Caravaggio dated July 6, 2016, wherein 

[WCJ] Caravaggio found that the diagnoses for which Dr. Jalali was treating

Claimant were not part of the work-related injury.” (Id. ¶ 10.)

 

7 This deposition testimony is summarized in Hemak FOF ¶ 17 and is found at pages 305a31a of the Reproduced Record.
8

D. WCJ Hemak’s Decision 

Reviewing the evidence, WCJ Hemak noted that Employer did not present 

“any expert testimony to contradict Dr. Jalali’s testimony nor any factual testimony 

to contradict the testimony of” Office Manager and Collections Manager. WCJ 

Hemak further explained that Employer has “not challenged the credibility of these 

witnesses in any material respect.” (Id. ¶ 18.) Accordingly, WCJ Hemak accepted 

that testimony as fact. (Id.) WCJ Hemak “specifically accepted” Dr. Jalali’s 

testimony that the treatment and medications he has prescribed are directly related 

to Claimant’s October 7, 2010 work injury. He rejected Employer’s arguments “that 

the subject treatment is related to the diagnoses rejected in the Decision and Order 

of [WCJ] Caravaggio dated July 6, 2016” because “Dr. Jalali credibly refute[d] that 

argument and [Employer did] not present[] any evidence to suggest otherwise.” (Id.

¶ 19.) Based on his findings, WCJ Hemak found that Claimant met her burden of 

proving that Employer violated the Act “by failing to pay Claimant’s work-related

prescription expenses[,] warranting an imposition of penalties in the amount of fiftypercent (50%) of the outstanding prescription[s], . . . in light of the unreasonable 

delay.”8 (WCJ Hemak Decision, Conclusion of Law ¶ 4.)

E. The Board’s Opinion

Employer appealed to the Board, arguing WCJ Hemak erred in granting the 

Penalty Petition because Claimant was attempting to relitigate issues that were 

decided by WCJ Caravaggio in her July 6, 2016 decision. Employer argued that the 

question of its liability for the medications prescribed by Dr. Jalali was addressed in 

that decision and, therefore, the current petition was barred by res judicata and/or 

 

8 WCJ Hemak denied that part of Claimant’s penalty petition based on Employer’s 

nonpayment of Dr. Jalali’s medical bills. (Hemak COL ¶ 5.) Claimant did not appeal that denial.
9

collateral estoppel. The Board disagreed, concluding that WCJ Caravaggio’s 

decision concerned whether the description of Claimant’s injury should be 

expanded. The Board held that, while Dr. Jalali offered testimony and was found 

not to be credible in that case, WCJ Caravaggio’s decision did not address any 

specific bills related to Dr. Jalali’s prescriptions, which is the issue in the current 

proceeding. According to the Board, Dr. Jalali’s testimony in this matter, found 

credible by WCJ Hemak, acknowledged the judicially determined injury and, using 

that description, opined that the prescriptions are related to Claimant’s work injury. 

Therefore, the Board held that neither the causes of action nor the issues were the 

same and affirmed WCJ Hemak’s Decision. Employer now petitions this Court for 

review.9

II. The Parties’ Arguments

On appeal, Employer argues that WCJ Hemak abused his discretion in 

accepting Dr. Jalali’s testimony and granting the Penalty Petition because that 

testimony was rejected by WCJ Caravaggio, and the issue of Employer’s liability 

for any treatment provided or prescribed by Dr. Jalali was addressed in Zito I. In 

that decision, Employer asserts, WCJ Caravaggio, and this Court, specifically 

rejected Dr. Jalali’s treatment and diagnoses as not being causally related to 

Claimant’s October 7, 2010 work injury. Employer argues that, through the petitions 

in Zito I, Claimant also sought the payment for Dr. Jalali’s treatment and 

 

9 This Court’s “review is limited to determining whether constitutional rights were violated, 

whether the adjudication is in accordance with the law[,] or whether necessary findings of fact are 

supported by substantial evidence.” City of Philadelphia v. Workers’ Comp. Appeal Bd. 

(Sherlock), 934 A.2d 156, 159 n.5 (Pa. Cmwlth. 2007). “Substantial evidence is such relevant 

evidence a reasonable mind might accept as adequate to support a conclusion.” WAWA v. Workers’ 

Comp. Appeal Bd. (Seltzer), 951 A.2d 405, 408 n.4 (Pa. Cmwlth. 2008). 
10

prescriptions, which are at issue in the current penalty proceedings. Because this 

issue was previously resolved in a final determination, Employer contends Claimant 

is precluded from relitigating it under res judicata and/or collateral estoppel. 

Employer asserts, therefore, that Claimant cannot meet her burden of proving that 

Employer violated the Act by failing to pay for medical treatments that were causally 

related to her work injury. Employer further challenges the finding that Dr. Jalali 

prescribed the same medications as Dr. Gorski because Dr. Jalali actually prescribed 

four new medications when he assumed responsibility for Claimant’s medications.

Claimant responds that WCJ Hemak and the Board correctly rejected 

Employer’s claim that res judicata and/or collateral estoppel applies here because 

she is not re-litigating an issue that has been previously decided. She contends that 

WCJ Caravaggio’s July 6, 2016 decision, and this Court’s decision in Zito I, 

concerned only whether the description of Claimant’s work injury should be 

expanded. Claimant notes that WCJ Caravaggio “did not address any specific 

medical bills related to Dr. Jalali’s prescriptions, which is the main subject of the 

instant case,” and that Dr. Jalali provided new testimony indicating that the 

medications he prescribed for Claimant were causally related to the injuries accepted 

by WCJ Rapkin. (Claimant’s Brief at 18.) Citing the testimony of Office Manager, 

Collections Manager, and Dr. Jalali offered in this matter, which WCJ Hemak 

credited, Claimant argues that, notwithstanding the rejection of Dr. Jalali’s 

diagnoses in Zito I, she met her burden of proving that Dr. Jalali’s prescriptions were 

causally related to her October 7, 2010 work injury and that Employer violated the 

Act when it refused to pay for those prescriptions. 
11

III. Analysis

Section 306(f.1)(1)(i) of the Act provides, in relevant part, that “[t]he 

employer shall provide payment in accordance with this section for reasonable 

surgical and medical services, services rendered by physicians or other health care 

providers, including an additional opinion when invasive surgery may be necessary, 

medicines and supplies, as and when needed.” 77 P.S. § 531(1)(i). “Once the 

employer’s liability for the work injury has been established, the employer may not 

unilaterally stop making benefit payment[s] in the absence of a final receipt, an 

agreement, a supersedeas[,] or any other order of the WCJ authorizing such action.” 

McLaughlin v. Workers’ Comp. Appeal Bd. (St. Francis Country House), 808 A.2d 

285, 288 (Pa. Cmwlth. 2002). If an employer does so, it can be liable for penalties 

under the Act. Id. at 290.

Section 435(d)(i) of the Act, 77 P.S. § 991(d)(i),10 permits the imposition of 

penalties where an employer violates the Act, rules, or regulations, which the 

claimant bears the burden of proving. Shuster v. Workers’ Comp. Appeal Bd. (Pa. 

Human Relations Comm’n), 745 A.2d 1282, 1288 (Pa. Cmwlth. 2000). If the 

claimant establishes a violation, the employer may offer rebuttal evidence to show 

that no violation occurred. Dep’t of Transp. v. Workers’ Comp. Appeal Bd. 

(Clippinger), 38 A.3d 1037, 1047 (Pa. Cmwlth. 2011). A WCJ is not required to 

award penalties, even if a violation of the Act is proven, and the decision to award 

penalties, or not, is within the WCJ’s discretion. Budd Co. v. Workers’ Comp. 

Appeal Bd. (Kan), 858 A.2d 170, 176 (Pa. Cmwlth. 2004). We will not reverse that 

decision absent an abuse of discretion. Id. 

 

10 Section 435 was added by Section 3 of the Act of February 8, 1972.
12

Initially, we note that in the absence of WCJ Caravaggio’s July 6, 2016 

decision and Zito I, the credited testimony of Dr. Jalali, Office Manager, and 

Collections Manager supports the grant of the Penalty Petition and imposition of 

penalties against Employer. There is no dispute that Claimant sustained numerous

work-related injuries, as found by WCJ Rapkin, and that she requires ongoing

medical treatment, including prescription medications, for those injuries. And, 

there is nothing in the record indicating that Employer has obtained an order, final 

receipt, or supersedeas ending its liability to pay for Claimant’s work injuries. Thus, 

Employer remains liable to do so. 77 P.S. § 531(1)(i); McLaughlin, 808 A.2d at 288. 

Dr. Jalali credibly testified that he assumed sole responsibility for Claimant’s 

medications from Dr. Gorski and that Claimant agreed not to seek medications from 

other physicians. After assuming responsibility for Claimant’s medications, Dr. 

Jalali added a long-acting opioid and changed Claimant’s existing narcotic, anticonvulsant, and muscle relaxant medications to those he believed better treated the 

symptoms related to her work injuries, particularly her chronic pain, with fewer side 

effects. Noting that Claimant’s symptomology remained the same from the 

beginning of his treatment, Dr. Jalali opined the medications he prescribed were 

causally related to Claimant’s October 7, 2010 work injury, regardless of whether 

Claimant’s diagnoses were those found by WCJ Rapkin or those diagnoses Dr. Jalali 

had opined. Office Manager credibly testified that Alliance properly submitted 

invoices, forms, and other accompanying materials, which explained that the 

prescriptions were for Claimant’s muscle spasms and right hand pain, to Employer 

for payment. Collections Manager credibly explained that the majority of these 

invoices remained unpaid, in the amount of $39,592.67, despite Fee Review 

Determinations in Alliance’s favor directing Employer to pay the invoices. 
13

Employer offered no rebuttal evidence beyond relying on WCJ Caravaggio’s July 6, 

2016 decision. Because “a reasonable mind might accept [Claimant’s credited 

evidence] as adequate to support a conclusion” that Employer violated the Act by 

refusing to pay for medical treatment that was causally related to Claimant’s work 

injury, there is substantial evidence to support WCJ Hemak’s Decision. WAWA v. 

Workers’ Comp. Appeal Bd. (Seltzer), 951 A.2d 405, 408 n.4 (Pa. Cmwlth. 2008). 

Additionally, WCJ Hemak cited Employer’s unreasonable delay in payment

as justification to impose the 50-percent penalty. Because Employer did not pay for 

Claimant’s prescription medications from November 2015 until at least December 

2016, despite there being Fee Review Determinations ordering Employer to do so, 

this reason is supported by the record. Therefore, the WCJ did not abuse his

discretion in imposing the 50-percent penalty. Thus, unless the Penalty Petition is 

barred by res judicata and/or collateral estoppel, WCJ Hemak’s decision will be 

upheld.

Collateral estoppel prevents the re-litigation of an already-decided issue and 

will apply in workers’ compensation proceedings when: (1) “the issue in the prior 

adjudication was identical to the one presented in the later action”; (2) “there was a 

final judgment on the merits”; (3) “the party against whom the plea is asserted was 

a party or in privity with a party to the prior adjudication”; (4) “the party against 

whom it is asserted has had a full and fair opportunity to litigate the issue in a prior 

action”; and (5) “the determination in the prior proceeding was essential to the 

judgment.” Callaghan v. Workers’ Comp. Appeal Bd. (City of Phila.), 750 A.2d 

408, 412 (Pa. Cmwlth. 2000). Technical res judicata, or claim preclusion, applies 

where the following is the same: (1) the “identity of the thing sued upon or for”; (2) 

the “identity of the cause of action”; (3) the “identity of the persons and parties to 
14

the action”; and (4) the “identity of the quality or capacity of the parties suing or 

sued.” Weney v. Workers’ Comp. Appeal Bd. (Mac Sprinkler Sys., Inc.), 960 A.2d 

949, 954 (Pa. Cmwlth. 2008) (citation omitted). “[C]auses of action are identical 

when the subject matter and the ultimate issues are the same in both the old and the

new proceedings.” Henion v. Workers’ Comp. Appeal Bd. (Firpo & Sons, Inc.), 776 

A.2d 362, 366 (Pa. Cmwlth. 2001).

Applying these principles here, we discern no error in the Board’s conclusion 

that neither collateral estoppel nor res judicata precluded WCJ Hemak from granting

the Penalty Petition. The issue before WCJ Caravaggio was whether the description 

of Claimant’s injury should be expanded and that is what WCJ Caravaggio addressed 

in her decision. While Dr. Jalali testified regarding what he believed were more 

accurate diagnoses of Claimant’s work injury, WCJ Caravaggio did not find that 

testimony credible and denied Claimant’s request to expand the description of her 

injury for failing to satisfy her burden of proof, which this Court affirmed in Zito I. 

Although there was a petition regarding medical expenses, absent from WCJ 

Caravaggio’s decision was discussion of any specific medical bills related to Dr. 

Jalali’s prescriptions. In the current matter, the main issue is not the description of 

Claimant’s work injury, as it was before WCJ Caravaggio, but whether Employer 

violated the Act by not paying Claimant’s medical bills for her prescription 

medications. Thus, the issues before WCJ Caravaggio in the prior proceeding and 

before WCJ Hemak in the current proceeding are not identical. Further, as WCJ 

Caravaggio did not address any medical bills in her decision, it cannot be said that 

the resolution of that issue “was essential to the judgment” in the prior proceeding. 

Callaghan, 750 A.2d at 412. As for technical res judicata, because “the subject 

matter and the ultimate issues” are not the same in the prior proceedings before WCJ 
15

Caravaggio and the current proceedings before WCJ Hemak, the “causes of action” 

in the old and new proceedings are not the same. Henion, 776 A.2d at 366. For 

these reasons, neither collateral estoppel nor res judicata bar the grant of the Penalty 

Petition here. 

In addition, we are unpersuaded by Employer’s alternative arguments for 

reversing. First, Employer appears to argue that because WCJ Caravaggio found Dr. 

Jalali not credible as to the new diagnoses, WCJ Hemak could not consider Dr. 

Jalali’s testimony that the treatment was related to diagnoses found to be workrelated by WCJ Rapkin. The WCJ is the ultimate fact finder and sole arbiter of 

credibility and evidentiary weight. Greenwich Collieries v. Workmen’s Comp.

Appeal Bd. (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995). In the current 

proceeding, Dr. Jalali did not reiterate his prior opinions that Claimant’s work injury 

was something other than that found by WCJ Rapkin. Instead, Dr. Jalali provided 

new testimony, acknowledging the judicially accepted description of Claimant’s 

work injury and, based on that description, opining that the prescriptions had been 

and were causally related to Claimant’s work injury. Dr. Jalali explained that 

Claimant’s symptoms remained the same from when he first began treating her in 

March 2015, prior to any attempt to expand the description of her work injury, and 

that his treatment of those symptoms would be the same regardless of the diagnoses 

used. Acting as the fact finder in this case, WCJ Hemak was authorized to make 

his own credibility determinations and factual findings relevant to the questions 

before him. He did so, accepting the evidence presented by Claimant as credible 

and finding that Claimant met her burden of proof on her current Penalty Petition. 

Thus, this is not a basis to reverse the grant of the Penalty Petition.
16

Second, Employer challenges WCJ Hemak’s finding that Dr. Jalali did not 

change Claimant’s medications as not being supported by the record because Dr. 

Jalali prescribed four “new” medications. However, a review of Dr. Jalali’s credited 

testimony reveals that while the specific medications he prescribed Claimant 

differed from those prescribed by Dr. Gorski, those medications were of the same

type as had been previously prescribed. Utilizing his expertise as a board-certified 

anesthesiologist and pain medication specialist, Dr. Jalali reviewed Dr. Gorski’s 

treatment and concluded the particular medications prescribed were not the best 

suited for Claimant’s symptoms and the side effects she was experiencing. 

Therefore, Dr. Jalali changed those medications to alternatives he believed would be 

better for Claimant. Reviewing, as we must, this credited evidence in the light most 

favorable to the party that prevailed before WCJ Hemak, WAWA, 951 A.2d at 408, 

WCJ Hemak’s finding is supported by substantial evidence. Accordingly, this, too, 

is not a basis for reversing the grant of the Penalty Petition.

For the foregoing reasons, the Board’s Order is affirmed.

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Greater Hazleton Health Alliance, :

Petitioner :

 :

v. : No. 1309 C.D. 2018

 : 

Workers’ Compensation Appeal :

Board (Zito), :

Respondent :

O R D E R

NOW, June 6, 2019, the Order of Workers’ Compensation Appeal Board, 

entered in the above-captioned matter, is AFFIRMED. 

_____________________________________

RENÉE COHN JUBELIRER, Judge