IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Monique Wharton, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Department of Corrections), : No. 643 C.D. 2016

Respondent : Argued: May 2, 2017

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: May 26, 2017

Monique Wharton (Claimant) petitions this Court for review of the

Workers’ Compensation (WC) Appeal Board’s (Board) March 23, 2016 order 

affirming the Workers’ Compensation Judge’s (WCJ) decision granting the 

Commonwealth of Pennsylvania, Department of Corrections’ (Employer) Petition to 

Terminate Compensation Benefits (Termination Petition). Claimant presents one 

issue for this Court’s review: whether the Board and the WCJ erred by finding that 

res judicata and collateral estoppel barred litigation of her newly-discovered medical 

conditions. 

On November 20, 2010, Claimant suffered a work-related injury while 

working as a prison guard for Employer. On May 4, 2011, Claimant filed a Claim 

Petition (Claim Petition). Following litigation on the Claim Petition, in November 

2011, the parties stipulated that Claimant’s work injury was described as a right 

shoulder strain/sprain and cervical sprain/strain (Original Stipulation). By January 4, 
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2012 decision, WCJ Nancy Goodwin adopted the Original Stipulation. By July 30, 

2013 decision, WCJ Pamela Santoro (WCJ Santoro) adopted a subsequent stipulation,

wherein, the parties agreed that Claimant had returned to a sedentary/light-duty 

position with no wage loss (Subsequent Stipulation), thus entitling Employer to 

suspend Claimant’s WC benefits as of April 14, 2013. 

On January 3, 2014, Employer filed its Termination Petition alleging 

that Claimant had fully recovered from her work injury as of December 12, 2013 as 

confirmed by an independent medical examination performed by Dean Trevlyn, M.D. 

(Dr. Trevlyn). On July 1, 2014, Employer filed a Petition to Modify and/or Suspend 

Compensation Benefits (Suspension Petition) based upon its December 24, 2013 job 

offer to Claimant following Dr. Trevlyn’s release to return to work without 

restrictions. On October 24, 2014, Employer filed a Notification of Suspension 

following Claimant’s October 23, 2014 return to work at wages greater than or equal 

to her pre-injury wages. On November 13, 2014, Claimant filed an Employee 

Challenge to Employer’s Notification of Suspension (Challenge Petition).

On October 19, 2015, WCJ Lawrence Beck (WCJ Beck) granted 

Employer’s Termination Petition and dismissed Employer’s Suspension Petition and 

Claimant’s Challenge Petition as moot. Claimant appealed to the Board. On March 

23, 2016, the Board affirmed the WCJ’s decision. Claimant appealed to this Court.1

Claimant argues that the Board and WCJ Beck erred by concluding,

based on Weney v. Workers’ Compensation Appeal Board (Mac Sprinkler Systems, 

Inc.), 960 A.2d 949 (Pa. Cmwlth. 2008), that res judicata and collateral estoppel 

barred litigation of her newly-discovered medical conditions. Specifically, Claimant 

 

1

“On review[,] this Court must determine whether constitutional rights 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

contends that the Subsequent Stipulation included express language reserving both 

parties’ rights to further litigate the injury description, and that Weney is 

distinguishable. 

We begin our analysis with a discussion of Weney. In Weney, the 

claimant sustained a work-related left shoulder strain. The employer acknowledged 

the claimant’s work injury through a Notice of Temporary Compensation Payable, 

which was later converted to a Notice of Compensation Payable (NCP). Thereafter, 

the claimant filed an initial Petition to Review Compensation Benefits (Review 

Petition I) seeking to amend the NCP to include a left shoulder injury in the nature of 

a tear of the anterior labrum with large glenohumeral joint effusion, tendonitis or a 

partial tear of the supraspinatus/infraspinatus, minimal impingement, and biceps 

tenosynovitis. The parties stipulated that the NCP should be amended to include the 

additional shoulder injuries. The WCJ adopted the stipulation and granted the 

claimant’s Review Petition I. Eleven days later, the claimant filed another Petition to 

Review Compensation Benefits (Review Petition II) seeking to further amend the 

NCP to include four herniated discs, which he alleged were sustained as a result of 

the work incident. The employer denied the allegations and asserted that the 

claimant’s Review Petition II was barred by the doctrines of technical res judicata 

and/or collateral estoppel. The WCJ granted the claimant’s Review Petition II and 

amended the NCP to include the claimant’s herniated discs.

The employer appealed to the Board which essentially concluded that 

the claimant’s Review Petition II was barred by technical res judicata, and reversed

the WCJ’s decision. The claimant appealed to this Court, which held:

Here, the subject matter of both the Review Petition I and 

Review Petition II proceedings was the nature and extent of 

the injuries that Claimant sustained as a result of the . . . 

work incident, and the ultimate issue in both proceedings 

was whether the NCP accurately reflected the nature and 
4

extent of [the c]laimant’s injuries. Although [the c]laimant 

did not actually litigate the specific issue of his neck or 

cervical spine injury during the earlier proceedings on his 

Review Petition I, the record evidence clearly establishes 

that he should have done so. . . . [There was] concrete 

evidence that [the c]laimant was aware of the injury to his 

neck or cervical spine and its relatedness to the . . . work 

incident during the earlier proceedings on his Review 

Petition I . . . . As [the c]laimant was aware of the injury to 

his neck or cervical spine and its relatedness to the . . . work 

incident during the proceedings on his Review Petition I, he 

should have litigated such injury at that time. . . . 

Therefore, since [the c]laimant attempted to raise a matter 

through his Review Petition II that should have been 

litigated during the earlier proceedings on his Review 

Petition I, [the c]laimant’s Review Petition II was barred by 

technical res judicata. 

Weney, 960 A.2d at 955-56 (citations omitted).

Claimant argues that because she was not formally diagnosed with her 

cervical herniations and radiculopathy until after the Subsequent Stipulation was 

executed (albeit before WCJ Santoro adopted it), and because the Subsequent 

Stipulation included express language reserving the parties’ rights to further litigate 

the nature and extent of the injuries, Weney is inapposite. Particularly, Claimant 

contends that she was not aware of her additional injuries until after her treating 

physician Scott J. Davidoff, M.D.’s (Dr. Davidoff) August 26, 2014 deposition. 

Employer responds that since the nature and causation of Claimant’s injuries were

known to her as early as December 2011, which was the time of the original 

litigation, Weney applies.

Initially, we acknowledge that “[t]echnical res judicata may be applied to 

bar ‘claims that were actually litigated[,] as well as those matters that should have

been litigated.’” Namani v. Workers’ Comp. Appeal Bd. (A. Duie Pyle), 32 A.3d 850, 

856 (Pa. Cmwlth. 2011) (quoting Henion v. Workers’ Comp. Appeal Bd. (Firpo & 

Sons, Inc.), 776 A.2d 362, 365 (Pa. Cmwlth. 2001)). However, although Weney and 
5

the instant matter both involve stipulations, unlike in Weney, the Stipulations here 

contained express preservations of the right to litigate additional injuries. 

Specifically, the Stipulations included as paragraphs 15 and 14, respectively state: 

“The parties reserve the right to further litigate the description of injury or to 

litigate any matter as permitted by the Pennsylvania Workers’ Compensation Act 

[(Act)2] or [what is commonly referred to as] the Pennsylvania Heart and Lung 

Act[3].” Original Stipulation at 2 (emphasis added), Subsequent Stipulation at 2

(emphasis added). 

Further, 

Section 413(a) of the Act[4]specifically authorizes the WCJ 

to amend the NCP during litigation of any petition where 

the evidence presented shows that the NCP is materially 

incorrect. Whether an employer has had a fair opportunity 

to contest the corrective amendment is determined on a 

case-by-case basis by looking at the totality of 

circumstances.

Walter v. Workers’ Comp. Appeal Bd. (Evangelical Cmty. Hosp.), 128 A.3d 367, 374 

(Pa. Cmwlth. 2015) (emphasis added). Consequently, had Claimant’s work injuries 

been litigated as opposed to resolved by stipulation, she would have been permitted to 

present evidence of additional injuries during the litigation of Employer’s 

Termination Petition.5 Here, Dr. Davidoff’s deposition was taken on August 26, 

2014, and the last WCJ hearing was held on November 12, 2014. Thus, Employer 

had notice of the additional injuries before it rested its case.

 

2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.

3 Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637-638.

4

77 P.S. § 771.

5 During oral argument, Employer’s Counsel was specifically asked whether Claimant 

would have had the right to raise the additional injuries at the Termination Petition hearing but for 

the Stipulations. Employer’s Counsel conceded that Claimant would have been permitted to do so. 
6

Moreover, WCJ Beck specifically found as a fact that “Claimant [] 

suffered cervical herniation[s] . . . and [] radiculopathy as a result of the November 

20, 2010 work injury.” WCJ Dec. at 5, Finding of Fact 7(c). Therefore, WCJ Beck

concluded that Claimant met her burden of proving the additional injuries. Given the 

totality of the circumstances, Weney is distinguishable from the case sub judice. 

Accordingly, we hold that the Board and WCJ Beck erred by ruling that res judicata 

and collateral estoppel barred Claimant’s litigation of her additional medical 

conditions.

6

 

For all of the above reasons, the Board’s order is reversed, and the 

matter is remanded to the Board to remand to the WCJ for further proceedings on 

Employer’s Suspension Petition and Claimant’s Challenge Petition.

___________________________

ANNE E. COVEY, Judge

 

6 Given this Court’s reversal of the ruling on Employer’s Termination Petition, Employer’s 

Suspension Petition and Claimant’s Challenge Petition are no longer moot.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Monique Wharton, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Department of Corrections), : No. 643 C.D. 2016

Respondent :

O R D E R

AND NOW, this 26th day of May, 2017, the Workers’ Compensation 

Appeal Board’s (Board) March 23, 2016 order is reversed. This matter is remanded 

to the Board to remand to the Workers’ Compensation Judge for further proceedings 

consistent with his opinion.

Jurisdiction relinquished.

___________________________

ANNE E. COVEY, Judge