IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James McFillin, : Petitioner :

:

v. :

: Workers’ Compensation Appeal : Board (Township of Lower Merion :

a nd Delaware Valley Workers : Compensation Trust), : No. 478 C.D. 2018 Respond ents :

James McFillin, : Petitioner :

:

v. :

: Workers’ Compensation Appeal : Board (Township of Lower Merion), : No. 479 C.D. 2018 Respondent : Submitted: November 30, 2018

BEFORE: HONORABLE MARY HANNAH LEAVITT

, President Ju dge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COVEY FILED: February 4, 2019

James McFillin (Claimant) petitions this Court for review of the

Workers’ Compensation (WC) App eal Board’s ( Board ) March 15, 2018 order

affirming the Workers’ Compensation Judge’s (WCJ) decision dismissing as

untimely Claimant ’ s Petition for Reinstatement ( Reinstatement Petition )

, denying his

Claim Petition and denying his Motion for Remand/Rehearin g (Motion) . Claimant

presents two issues for this Court’s review: (1) whether the Agreement for

Compensation purportedly signed by Claimant and Lower Merion Township ’s2

(Employer) insurance carrier on September 15, 2010 (Compensation Agreement)

should have been considered in resolving Claimant’s Reinstatement Petition; and (2)

whether the grievance a rbitrator’s (Arbitrator) decision should have been considered

in determining Claimant’s Claim Petition. After review, we affirm.

Claimant was employed by Empl oyer as a police officer. On January

31, 2007, Claimant injured his back while getting out of his police car. On October

19, 2009, Employer issued a medical

- only Notice of Temporary Compensation

Payable (NTCP) describing Claimant’s injury as a low back s prain/strain. Claimant

continued working until he retired effective July 31, 2012. Claimant originally

received an age and service pension from Employer

. Claimant subsequently filed a

grievance under the collective bargaining agreement (CBA) between the police union

and Employer , and the A rbitrator issued a decision converting Claimant’ s age and

service pension to a service

- connected disability pension.

On June 18, 2015, Claimant filed the Reinstatement Petition alleging

that his 2007 work injury caused his decreased earning power as of 2012. Claimant

also filed the Claim Petition alleging that on July 1, 2012, he sustained injur ies to his

lumbar spine, neck and both shoulders, and radiculopathy and myofascial pain

syndrome while performing police dutie s, which were aggravations of the prior work

injury. Claimant alleged that he notified Employer of this injury. Claimant sought

total disability benefits from July 1, 2012, and ongoing. Employer denied Claimant’s

allegations.

The Reinstatement and Cla im Petitions were consolidated before the

WCJ. O n January 24, 2017, the WCJ denied both Petitions. T he WCJ concluded that

the Reinstatement Petition was time

- barred because it was not filed within three years

of the January 31, 2007 work injury date

. Th e WCJ also concluded that since

collateral estoppel did not apply to the grievance A rbitrator’ s decision, t he WCJ was

not bound by the A rbitrator’ s findings. Relative to the Claim Petition, the WCJ3

concluded that Claimant failed to prove he sustained a wo rk

- related injury on or

about July 1, 2012, or that he notified Employer of such injury . On February 9, 2017,

Claimant appealed from the WCJ’s decisions to the Board. On April 14, 2017,

Claimant filed the Motion with the Board pursuant to Section 426 of the WC Act

(Act). 1 In his Motion, Claimant requested a hearing to introduce the Compensation

Agreement. On March 15, 2018, the Board denied Claimant’s Motion and affirmed

the WCJ’s decisions. Claimant appealed to this Court. 2

Claimant first argues that the Compensation Agreement should have

been considered in resolving Claimant’s Reinstatement Petition

. 3 We disagree.

Initially, Section 315 of the Act provides, in relevant part:

In cases of personal injury [,] all claims for compensation

shall be forev er barred, unless, within three years after the

1 Act of June 2, 1915, P.L. 736, as amend ed

, added by Section 6 of the Act of June 26, 1919,

P.L. 642, 77 P.S. § 871. Section 426 of the Act governs rehearing requests

.

[A] petition for rehearing under [S] ection 426 of the Act is properly
filed only after the [Board] has issued a decision. Be cause Claimant
filed his petition before the [Board] ruled in this matter, Claimant’s
Petition for Rehearing was premature. Thus, Claimant’s request to
present new evidence is properly considered a Petition for Remand

under [S] ection 419 of the Act[

, adde d by Section 6 of the Act of June

26, 1919, P.L. 642

, 77 P.S. § 852 ]

. Puhl v. Workers’ Comp. Appeal Bd. (Sharon Steel Corp.) , 724 A. 2 d 997, 1000 n.4 (Pa. Cmwlth.

1999) (citation omitted).

2 “On review[,] this Court must determine whether constitutional r ights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent

evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.) , 99 A.3d 598, 601 n.6

(Pa. Cmwlth. 2014).

3 This Court will treat Claimant’s Reinstatement Petition as a Claim Petition since the only

other document before the WCJ was Employer’s October 19, 2009 medical

- only NTCP

, which

, presumably

, converted to a Notice of Compensation Payable 90 days thereafter. Because Employ er never accepted and Claimant never proved that he was disab led from the 200 7 injury, disability had
not been suspended when the NCP was issued. Therefore, Claimant could not seek to have
disability benefits reinstated , and the 500

– week period for reinst atement of benefits does not govern

this case. See Sloane v. Workers’ Comp. Appeal Bd. (Children’s Hosp. of Phila

. ) , 124 A.3d 778

(P a. Cmwlth. 2015).4 injury, the parties shall have agreed upon the compensation payable under this article; or unless within three years after the injury, one of the parties shall have filed a petition as provided in article fou r hereof

.

77 P.S. § 602 . Here, because Claimant’s injury occurred January 31, 2007 , pursuant

to Section 315 of the Act, Claimant’s claim was “ forever barred ” unless an agreement

of compensation or a petition was filed by January 31, 2010. Id. Claimant f iled his

Reinstatement Petition on June 18, 2015

. In addition, Claimant’s Compensation

Agreement, even if it were properly introduced and admitted into evidence before the

WCJ, 4 was purportedly signed on September 15, 2010. Accordingly, since neither

doc ument was executed within the allotted time period

, the WCJ properly determined

the Reinstatement Petition was untimely.

Moreover,

[a] request for remand to the [WCJ] , when accompanied by supporting evidence, constitutes the equivalent of a petition

for rehearing, which is granted to allow a party to present newly [

- ] discovered, noncumulative evidence. T he decision whether to grant or deny such petition is within the Boar d’ s discre tion and will not be reversed except for an abuse of

that discretion

.

Cisco v. Work men ’ s Comp. Appeal Bd. (A&P Tea Co.) , 488 A.2d 1194, 1196 (Pa.

C mwlth. 1985) (citation omitted) . Further, “[t] he Board cannot be said to have

abused its discretion in denyi ng a request for remand where [a c] laimant has failed to

show how the newly [

- ] discovered evidence could change the outcome of the case. ”

Id.

Here, the Board denied Claimant’s Motion

, stating:

[A] rehearing is not allowable simply for the purpose of

stre ngthening weak proofs that have already been presented, or to introduce previously [

- ] available evidence to attempt to

4 Claimant did not introduce the Compensation Agreement before the WCJ, but rather filed

the Motion befor e the Board for a remand/rehearing for that purpose.5 cure a failure to satisfy the burden of proof before the WCJ.

. . .

Claimant alleges that he did not know about the [Compensation] Agreem ent and that it was not available by any reasonable effort because it was apparently in [Employer’s] sole possession. [ 5 ] However, he does not explain why. An [a] greement for [c] ompensation is a document that both a claimant and employer would execute,

no t something that an employer would unilaterally issue. Claimant fails to explain how he would execute an
[a] greement for [c] ompensation providing for receipt of disability benefits but not have knowledge of it and not be able to receive a copy from [ Emplo yer]

. Claimant does not allege that he requested a copy but [Employer] refused to provide him with one or falsely denied its existence. Nor does he explain how he came into possession of the

document. The [Compensation Agreement] , if it existed,

should have been equally available to Claimant and [Employer] , and Claimant has not adequately explained why it would not have been. Therefore, we determine that a

remand is not warranted and we deny Claimant’ s [Motion].

Board Dec. at 12. This Court discerns no abuse of discretion in the Board’s analysis.

Moreover

, our Supreme Court has held: “[T]he Act provides no

mechanism whereby an agreement can create or resurrect a right under the statute,

where the statute itself mandates that the right is expired.” C ozzone v. Workers ’

Comp. Appeal Bd. (Pa. Mun./E. Goshen Twp.)

, 73 A.3d 526, 542 (Pa. 2013). Given

the purported date of the Compensation Agreement, it was executed too late to

preserve Claimant’s claims. Thus

, the Compensation Agreement , if considered,

w ould not have changed the outcome in resolving Claimant’s Reinstatement Petition

.
Accordingly, the Board properly denied the Motion.

Claimant next argues that the A rbitrator’s decision should have been

considered in determining the Claim Petition . Spe cifically, Claimant contends that

5 Employer denies this allegation.6

collateral estoppel precluded the WCJ from denying the Claim Petition because the

Arbitrator awarded Claimant a disability pension

. We disagree.

This Court has explained:

C ollateral estoppel, also known as issue preclu sion, prevents relitigation of questions of law or issues of fact that have already been litigated in a court of competent jurisdiction. The doctrine of collateral estoppel is based on the policy that a losing litigant does not deserve a rematch

after fai rly suffering a loss in adversarial proceedings on an issue identical in substance to the one he subsequently seeks

to raise

.

Collateral estoppel will foreclose relitigation of issues of fact or law in subsequent actions where the following

criteria are me t: (1) the issue in the prior adjudication is 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 collateral estoppel is asserted has had a full and fair opportunity to litigate the issue in the prior action; and (5) the determination in the prior proceeding was essential to the judgment.

Merrill v. Workers’ Comp. Appeal Bd . (Dep’t of Corr.) , 158 A. 3d 242, 245 (Pa.

Cmwlth. 2017) (emphasis added ; citations omitted )

. All of the factors must be met

for collateral estoppel to apply. Hulmes v. Workers’ Comp. A ppeal B d. (Rite Aid

Corp.)

, 811 A.2d 1126 (Pa. Cmwlth. 2002).

Here

, Claimant assert s that the Arb i trator’s award precludes the WCJ’s

denial of the Claim Petition

. However, t he Claim Petition reflects that Claimant

sustained an injury on July 1, 2012

. See Reproduced Record (R.R.) at 5a. A ccording

to the Arbitrator’s In troduction and Statement of Relevant Facts: “ At the time of his

retirement in July 2012, [ 6 ] [Claimant] maintained that he was forced to retire due to a

permanent, service

- related disability that occurred in the January, 2007 incident

. ”

6 Claimant retired July 31, 2012.7

R.R. at 72a (emphas is added). T he Arbitrator’s decision nowhere references a July 1,

2012 injury

. See R.R. at 69a

- 77a.

Further, the Arbitrator concluded: “ I find that Officer McFillin is entitled

to a service

- connected disability pension. ” R.R. at 76a. A police office r is eligible

for a service

- connected disability pension if he “suffers a work

- related injury that the

[o] fficer believes renders him or her totally disabled as defined in Article 14.5.A of

[the CBA].” Article 14.5

. A of the CBA defines “‘ Total Disability ’ [as] [m] entally or

physically unfit for an indefinite duration and recovery is not predicted in the

foreseeable future to perform the duties presently being provided by a Lower Merion

Police Officer .” R.R. at 61a.

As the issue in the Claim Petition wa s whether Claimant sustained a

work

- related injury on July 1, 2012 , and the issue in the arbitration proceeding was

whether Claimant was entitled to a service

- connected disability , “ the issue in the

[arbitration proceeding] is [not] identical to the one pr esented in the [Claim

Petition].” Merrill , 158 A. 3d at 245

. Because all five factors are not met, collateral

estoppel does not apply. Hulme s

. Accordingly, collateral estoppel did not preclude

the WCJ from denying the Claim Petition

.

For all of the abo ve reasons, the Board’s order is affirmed.

___________________________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

James McFillin, : Petitioner :

:

v. :

: Workers’ Compensation Appeal : Board (Townsh ip of Lower Merion : and Delaware Valley Workers : Compensation Trust), : No. 478 C.D. 2018 Respondents :

James McFillin, : Petitioner :

:

v. :

: Workers’ Compensation Appeal : Board (Township of Lower Merion), : No. 479 C. D. 2018 Respondent :

O R D E R

AND NOW, this 4 th day of February , 201 9

, the Workers’ Compensation

Appeal Board’s March 15, 2018 order is affirmed.

___________________________ ANNE E. COVEY, Judge