IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Beaver Valley Slag, Inc., :

Petitioner :

:

v. :

:

Jason Marchionda (Workers’ :

Compensation Appeal Board), : No. 867 C.D. 2020

Respondent :

:

Jamie Young, Guardian of the :

Estate of Jason Marchionda, an :

Incapacitated Person, :

Petitioner :

:

v. :

:

Beaver Valley Slag, Inc. (Workers’ :

Compensation Appeal Board), : No. 901 C.D. 2020

Respondent : Submitted: January 15, 2021

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION BY 

JUDGE COVEY FILED: March 10, 2021

Beaver Valley Slag, Inc. (Employer) and Jamie Young (Guardian), 

Guardian of the Estate of Jason Marchionda (Claimant), an Incapacitated Person,

cross-petition this Court for review of the Workers’ Compensation (WC) Appeal 

Board’s (Board) August 13, 2020 order. Therein, the Board affirmed the Workers’ 

Compensation Judge’s (WCJ) decision granting Claimant’s Petition to Review 

Compensation Benefit Offset (Petition). 

Employer presents five issues for this Court’s review: (1) whether 

Whitmoyer v. Workers’ Compensation Appeal Board (Mountain Country Meats),
2

186 A.3d 947 (Pa. 2018), is applicable to the instant matter; (2) whether Employer 

is required to reimburse medical payments made after the date Whitmoyer was 

decided or the date of the Third-Party Settlement Agreement (TPSA); (3) whether 

Claimant waived his right to raise the issue of reduced reimbursement, pursuant to 

the TPSA, by failing to dispute Employer’s right to reduced reimbursement on all

future medical payments at the time the TPSA was executed; (4) whether Claimant 

is barred by the doctrines of collateral estoppel and/or res judicata upon execution 

of the TPSA and subsequent approval of the TPSA in the Beaver County Common 

Pleas Court (trial court); and (5) whether the WCJ’s decision is well reasoned 

because it failed to adequately address all exhibits, and Claimant’s and Employer’s 

exhibits demonstrate that Claimant voluntarily agreed to a reduced reimbursement 

rate on future medical benefits.

1

Guardian presents one issue for this Court’s review: whether the WCJ 

erred by making the modification retroactive to the date Whitmoyer was decided, 

rather than to the date the TPSA was executed.

2

Claimant worked for Employer when he sustained a severe injury while 

using a stone crusher machine that malfunctioned. Employer accepted the work 

injury through a notice of compensation payable (NCP), which described Claimant’s 

injury as a concussion, skull fracture and brain injury. As a result of those injuries, 

the trial court adjudicated Claimant an incapacitated person and appointed Guardian. 

In 2014, Guardian filed a products liability lawsuit in the trial court against the stone 

crusher machine’s seller, RECO Equipment (RECO). RECO and Guardian 

ultimately entered into a Petition for Approval and settled the lawsuit for 

$10,450,000.00, and the trial court ordered the following distribution: $1,099,600.00 

1 This Court has reordered Employer’s issues for ease of discussion. 

2 Because Guardian’s sole issue is a restatement of Employer’s second issue, it will be 

discussed therein.
3

to Employer to satisfy its net subrogation lien; $3,519,136.00 for costs and attorney’s 

fees; and $5,831,264.00 to a Special Needs Trust (Trust) established for Claimant. 

Pursuant to the trial court’s order, the parties signed the TPSA. The TPSA rendered 

Employer responsible for 33.7% of Claimant’s future weekly WC benefits and 

medical expenses in order to reimburse its pro rata share of Claimant’s fees and 

expenses until exhaustion of a subrogation interest in the amount of $8,794,337.00. 

Thereafter, Employer would be responsible for 100% of Claimant’s WC benefits. 

On June 19, 2018, the Pennsylvania Supreme Court decided

Whitmoyer, wherein it ruled that Section 319 of the WC Act (Act),3 77 P.S. § 671, 

precludes employers from subrogating future medical benefits after a third-party

settlement is executed.

On August 20, 2018, Guardian filed the Petition seeking review of 

Employer’s subrogation credit of Claimant’s third-party recovery pursuant to 

Whitmoyer. Specifically, Guardian sought to recover all of the medical benefits paid 

from the Trust after the TPSA was executed and relief of the Trust’s obligation to 

pay any future medical benefits. 

On January 9, 2019, the WCJ granted the Petition, but concluded that 

Whitmoyer was applicable to the subrogation of Claimant’s medical benefits as of 

June 19, 2018, the date Whitmoyer was decided. Accordingly, the WCJ set aside the 

TPSA to the extent that it requires the Trust to pay any portion of Claimant’s medical 

bills after said date. Consequently, the WCJ ordered Employer to reimburse the 

Trust for any medical expenses the Trust paid after June 19, 2018, and to pay 100% 

of Claimant’s medical expenses going forward. Employer and Guardian appealed 

to the Board. On August 13, 2020, the Board affirmed the WCJ’s decision. 

3 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
4

Employer and Guardian appealed to this Court.4 By September 22, 2020 Order, this 

Court consolidated the appeals.

Initially, Section 319 of the Act provides, in relevant part:

Where the compensable injury is caused in whole or in 

part by the act or omission of a third party, the employer 

shall be subrogated to the right of the employe, his 

personal representative, his estate or his dependents, 

against such third party to the extent of the compensation 

payable under this article by the employer; reasonable 

attorney’s fees and other proper disbursements incurred in 

obtaining a recovery or in effecting a compromise 

settlement shall be prorated between the employer and 

employe, his personal representative, his estate or his 

dependents. The employer shall pay that proportion of the 

attorney’s fees and other proper disbursements that the 

amount of compensation paid or payable at the time of 

recovery or settlement bears to the total recovery or 

settlement. Any recovery against such third person in 

excess of the compensation theretofore paid by the 

employer shall be paid forthwith to the employe, his 

personal representative, his estate or his dependents, and 

shall be treated as an advance payment by the 

employer on account of any future instalments of 

compensation.

77 P.S. § 671 (emphasis added).

In Whitmoyer, the Pennsylvania Supreme Court explained:

[A]fter satisfying the employer’s accrued subrogation lien, 

which encompasses ‘compensation’ payments made by 

the employer toward both disability benefits and medical 

expenses prior to the third-party settlement, the General 

Assembly intended the excess recovery to be paid to the 

injured employee and to be treated as an advance payment 

4

“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).
5

only on account of any future disability benefits. See 77 

P.S. § 671. 

Whitmoyer, 186 A.3d at 957. 

Viewing ‘instalments of compensation’ in context, with 

reference to surrounding language and the overall 

statutory scheme, we conclude that the term is clear and 

unambiguous. It does not refer to medical expenses. 

Therefore, having satisfied its accrued subrogation lien at 

the time of settlement, an employer is not permitted to 

seek reimbursement for future medical expenses from 

the employee’s balance of recovery.

Id. at 958 (emphasis added).

Employer argues that the WCJ erred by applying Whitmoyer to the 

instant matter because Whitmoyer was before the Board at the time the TPSA was 

executed. Specifically, Employer contends that since the TPSA was final (given that 

no appeal was taken therefrom), and no litigation or appeals were pending at the time

Whitmoyer was decided, Guardian is not entitled to the benefit of the change in the 

law. Guardian rejoins that Section 413(a) of the Act, 77 P.S. § 771, expressly 

required the WCJ to review, modify and set aside the materially erroneous portion 

of the TPSA.

Section 413(a) of the Act provides:

A [WCJ] may, at any time, review and modify or set 

aside a[n] [NCP] and an original or supplemental 

agreement or upon petition filed by either party with 

the [D]epartment [of Labor & Industry], or in the course 

of the proceedings under any petition pending before such

[WCJ], if it be proved that such [NCP] or agreement 

was in any material respect incorrect.

77 P.S. § 771 (emphasis added). Here, because Claimant is still receiving disability 

compensation, the TPSA was not a final resolution of the claim. Therefore, Section 

413(a) of the Act permits a WCJ to review and modify or set aside the TPSA upon 

petition filed by either party. See 77 P.S. § 771. Guardian filed the Petition seeking 
6

the WCJ to review the portion of the TPSA declaring that Employer was responsible 

for 33.7% of Claimant’s future weekly WC benefits and medical expenses in order 

to reimburse its pro rata share of Claimant’s fees and expenses until the 

$8,794,337.00 subrogation interest was exhausted. Because under Whitmoyer, 

Employer is not permitted to seek reimbursement for future medical expenses from 

the employee’s balance of recovery, the WCJ was permitted to set aside that portion 

of the TPSA. Accordingly, the WCJ properly applied Whitmoyer to the instant 

matter.

Employer next asserts that the WCJ erred by applying Whitmoyer

retroactively. To support its position, Employer cites cases referencing the 

retroactivity of Protz v. Workers’ Compensation Appeal Board (Derry Area School

District), 161 A.3d 827 (Pa. 2017) (Protz II), wherein the claimants asserted the 

unconstitutional nondelegability defense to the employers’ petitions for review of 

impairment rating evaluations (IRE) that were pending when Protz II was decided. 

See Dana Holding Corp. v. Workers’ Comp. Appeal Bd. (Smuck), 232 A.3d 629 (Pa. 

2020) (Dana Holding II); White v. Workers’ Comp. Appeal Bd. (City of Phila.), 237 

A.3d 1225 (Pa. Cmwlth. 2020). 

Guardian retorts that it would be improper to rely upon the retroactivity 

factors applicable in cases where the parties were actually litigating modifications 

of material errors and had preserved the issue, at the time the issue was decided in 

another case. Guardian maintains that granting a review petition under Section 

413(a) of the Act requires that correction of the erroneous agreement be effective as 

of the date of the error’s creation. Guardian further contends that, because the 

Whitmoyer Court was interpreting a phrase in Section 319 of the Act for the first 

time, and its holding was based upon the interpretation of a clear and unambiguous 

statute, the Court’s initial interpretation did not announce a new rule of law; thus, 

the modification and setting aside of the legally erroneous portion of the TPSA 
7

should be retroactive to the date of the erroneous agreement’s creation. Claimant 

cites Fiore v. White, 757 A.2d 842 (Pa. 2000), in support of its position.

The Fiore Court explained:

A case of first impression is one that presents an ‘entirely 

novel question of law,’ which ‘cannot be governed by any 

existing precedent.’ BLACK’S LAW DICTIONARY 635 (6th 

ed. 1990). [The] resolution of the conflict presented in 

[Commonwealth v. Scarpone, . . . 634 A.2d 1109 ([Pa.] 

1993),] was governed by familiar rules of statutory 

interpretation, grounded in existing case law.

Fiore, 757 A.2d at 848. Accordingly, the Fiore Court ruled that “Scarpone did not 

announce a new rule of law. [The] ruling merely clarified the plain language of the 

statute.” Id. at 848-49. Consequently, the Fiore Court held that because “[o]ur first 

pronouncement on the substance of a statutory provision is purely a clarification of 

an existing law[,]” Scarpone is retroactive to the effective date of the statute.

However, applying Fiore rotely is not consistent with the Pennsylvania 

Supreme Court’s decision in Dana Holding II and this Court’s holding in Whitfield 

v. Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC),

188 A.3d 599 (Pa. Cmwlth. 2018). This Court explained in Dana Holding Corp. v. 

Workers’ Compensation Appeal Board (Smuck), 195 A.3d 635 (Pa. Cmwlth. 2018) 

(Dana Holding I), aff’d, Dana Holding II:

There are four approaches in deciding what effect a 

decision announcing a new rule of law should be given: 

(1) purely prospective, meaning the new rule does not 

even apply to the parties in the case in which it was 

announced; (2) retroactive, but limited to the case where

the principle was announced; (3) retroactive to all cases 

pending at the time it was announced; and (4) full 

retroactive effect, which applies even to cases which are 

otherwise final. 
8

Dana Holding I, 195 A.3d at 641. “[W]hether a judicial decision should apply 

retroactively is a matter of judicial discretion to be decided on a case-by-case basis.” 

Id. (quoting Passarello v. Grumbine, 87 A.3d 285, 307 (Pa. 2014)). 

The U[nited] S[tates] Supreme Court has viewed the 

decision of whether to apply a new rule retroactively or 

prospectively as a function of three considerations: (1) the 

purpose to be served by the new rule, (2) the extent of the 

reliance on the old rule, and (3) the effect on the 

administration of justice by the retroactive application of 

the new rule. 

Blackwell v. State Ethics Comm’n, 589 A.2d 1094, 1099 (Pa. 1991). In Dana 

Holding II, the Pennsylvania Supreme Court held: “[T]he inertia favoring 

application of the general rule of retroactive application to cases pending on direct 

appeal should control.” Dana Holding II, 232 A.3d at 647.

Our Supreme Court expounded:

Significantly, this case concerns none of the subject areas 

in which th[e Supreme] Court has observed that it has 

additional latitude to implement a ruling prospectively, 

i.e., rules of the court’s own making, involving procedural 

matters, or entailing common law development. It does 

not involve public financing or tax refunds . . . . Although 

there may be some remaining latitude for a balancing of 

interests given the longstanding presumptive validity of 

[the statute] and employers’ and insurers’ understandable 

reliance thereon for many years, we find that [the 

e]mployer has not shown that its interests are so 

substantially predominant as to justify a departure from 

the default approach.

Id. (citation omitted). Accordingly, the Dana Holding II Court held that its ruling 

in Protz II was retroactive to the IRE date, rather than the date Protz II was decided

because the case was on appeal at the time Protz II was decided.

Concerning the Blackwell Court’s holding that its retroactivity 

approach is applicable to instances in which prior law is overruled and a new 
9

principle is announced, the Dana Holding II Court believed Protz II was not such an 

instance, opining:

Our hesitation in crediting this facet of Blackwell outright 

is that the Blackwell Court framed the approach as 

applicable to instances in which prior law is overruled and 

a new principle is announced, see id.; whereas, we are 

more of the view that ‘the mere application of well-settled 

constitutional principles to discrete factual scenarios is not 

the application of a new legal theory or one that had not 

been foreshadowed by other precedents.’ Reynoldsville 

Casket [Co. v. Hyde], 514 U.S. [749,] 762 [(1995)]. . . 

(Kennedy, J., concurring).

Dana Holding II, 232 A.3d at 648. The Dana Holding II Court expounded:

Accordingly, rather than overruling Blackwell in its 

entirety, we have chosen to deconstruct the decision, and 

to analyze the present case in light of the underlying 

themes and principles that are of relevance in this difficult 

area of the law[.] Ultimately, our present decision stands 

for the principle that the general rule in Pennsylvania 

will be that, at least where prior judicial precedent 

isn’t overruled, a holding of this Court that a statute is 

unconstitutional will generally be applied to cases 

pending on direct appeal in which the constitutional 

challenge has been raised and preserved. At the present 

point in time, however, the [Supreme] Court is not of a 

mind to exclude the possibility of equitable balancing 

in extraordinary cases, particularly since no party [sic] 

this appeal has advocated any such position.

Dana Holding II, 232 A.3d at 648-49 (citations omitted).

In Whitfield, this Court did not address the issue of whether Protz II

established “a new rule,” but rather decided the issue of Protz II’s application under 

Section 413(a) of the Act (reinstatement based on whether the disability of the 

injured employee has increased, decreased, recurred, or has temporarily or finally 

ceased), as opposed to Section 306(a.2) of the Act (reinstatement based on 

impairment rating). 
10

Indeed, concerning the retroactivity of Protz II, the Whitfield Court 

opined:

Both parties painted this case as an issue involving the 

retroactivity of Protz II. Given the facts of this case, 

however, the issue is not purely a question of 

retroactivity. We previously explained:

A retroactive law has been defined as one which 

relates back to and gives a previous transaction a 

legal effect different from that which it had under 

the law in effect when it transpired. . . . A law is 

given retroactive effect when it is used to impose 

new legal burdens on a past transaction or 

occurrence.

Dep’t of Lab[.] [&] Indus., Bureau of Emp[.] Sec. v. Pa. 

Eng’g Corp., . . . 421 A.2d 521, 523 ([Pa. Cmwlth.] 1980) 

(. . . internal citations omitted); see also Passarello . . . , . 

. . 87 A.3d [at] 307 . . . (requiring a decision to announce 

a new rule of law before it can be given retroactive 

effect); Commonwealth v. Hughes, . . . 865 A.2d 761, 780 

([Pa.] 2004) (explaining a court decision is considered 

‘new’ for purposes of retroactivity if it imposes a new 

obligation on the parties). Our decision today does not 

impose any new legal consequences based upon a past 

transaction. Simply because Protz II is being applied to a 

case that arose from a work injury and a change in 

disability status that predates it does not mean it operates 

retroactively. Warren v. Folk, 886 A.2d 305, 308 (Pa. 

Super. 2005). It would be retroactive if it related back and 

gave a prior transaction a legal effect different from that 

which it had under the law in effect at the time. Id. This 

decision does not alter [the c]laimant’s past status. Rather, 

it gives effect to the [c]laimant’s status as it existed at the 

time she filed her reinstatement petition, which was filed 

within the statutory timeframe for filing such petitions.

Whitfield, 188 A.3d at 616-17 (emphasis omitted; emphasis added). Consequently, 

it is clear that Whitfield did not hold that Protz II is to be applied retroactively to the 

effective date of Section 306(a.2) of the Act, or more relevant, the date of the original 

IRE.
11

Here, the status of the TPSA terms for future medical expense 

subrogation was not “pending on direct appeal” at the time Whitmoyer was decided. 

Dana Holding II, 232 A.3d at 647. Therefore, Dana Holding II does not require, 

and this Court will not order, that Whitmoyer be applied retroactively to the date of 

the TPSA’s origination. 

Under the Dana Holding II Court’s reasoning, because Section 319 of 

the Act was an existing statute which the Pennsylvania Supreme Court had not yet 

interpreted, and applying well-settled statutory interpretation principles was 

foreseeable, Whitmoyer did not establish a new rule. See also Fiore. Thus, this 

Court’s holding that Whitmoyeris not retroactive to the date of the TPSA is not based 

on finding that Whitmoyer established a new rule of law, just as the Dana Holding

II Court’s ruling that Protz was not retroactive was not based on such a finding. 

However, because the TPSA was not a final resolution of the claim, it 

was subject to review under Section 413 of the Act because Claimant was still 

receiving disability benefits. Given that our Supreme Court interpreted that portion 

of Section 319 of the Act for the first time in Whitmoyer, such that the TPSA’s terms

were not known to be materially incorrect until Whitmoyer was decided, and

Guardian preserved the issue of Whitmoyer’s application to the TPSA by raising it

at the earliest point, Guardian is entitled to the benefit of the ruling as of the date

Whitmoyer was decided. This result is consistent with Whitfield, wherein this Court, 

for differing reasons, held that Protz II was not retroactive to the IRE, but rather the 

date of the reinstatement petition therein, as that was the date the claimant averred a 

change in disability status. Here, the date the Pennsylvania Supreme Court decided 

Whitmoyer was the date the portion of the TPSA regarding future medical benefits 

effectively became invalid. As such, “given the longstanding presumptive validity 

of [the statutory interpretation] and employers’ and insurers’ understandable 
12

reliance thereon for many years,” Dana Holding II, 232 A.3d at 647, “equitable 

balancing” is warranted. Id. at 649 (emphasis added).

Moreover, ruling that Whitmoyer’s retroactivity is not limited to cases 

pending at the time it was announced is consistent with Whitmoyer’s holding,

wherein the Pennsylvania Supreme Court opined: “[I]t bears emphasizing that the 

conclusion we reach today is wholly consistent with the remedial nature of the [Act], 

which should be interpreted for the benefit of the worker and liberally construed to 

effectuate its humanitarian objectives.” Whitmoyer, 186 A.3d at 958. Accordingly, 

the WCJ did not err by directing Employer to reimburse the Trust for any medical 

expenses the Trust paid after June 19, 2018, the date Whitmoyer was decided, and to 

pay 100% of Claimant’s medical expenses going forward. 

Employer declares that Claimant waived his right to raise the issue of 

reduced reimbursement pursuant to the TPSA by failing to dispute Employer’s right 

to reduced reimbursement on all future medical payments at the time the TPSA was 

executed. Guardian rejoins that the Whitmoyer Court held otherwise.

The WCJ opined:

The [p]arties have followed a procedure since June of 

2016, on how medical bills are processed and paid. This 

process was based upon years of interpretation of Section 

319 of the Act. I do not find that by entering into this 

arrangement in 2016, that Claimant has ‘waived’ any 

rights. 

WCJ Dec. at 5, Finding of Fact 13(c). This Court agrees. The use of a boilerplate 

form the WC Bureau (Bureau) provided, which has been used repetitively

throughout the years based on the then-current interpretation of Section 319 of the 

Act, does not constitute waiver of the right to rely on the present interpretation of 
13

Section 319 of the Act. See Whitmoyer.

5

 Accordingly, Claimant did not waive his 

right to raise the issue of reduced reimbursement pursuant to the TPSA.

Employer also claims that the doctrines of collateral estoppel and/or res 

judicata barred Claimant from objecting to the reduced reimbursement set forth in

the TPSA. Specifically, Employer asserts that Claimant agreed to the contents of 

the Petition for Approval, executed the TPSA, which the trial court approved without 

objection, and volunteered to set up a medical benefit payment procedure for the 

Trustee. Thus, Employer contends that Claimant is estopped from raising the issue 

of reduced reimbursement pursuant to the TPSA. 

5 The Whitmoyer Court explicated:

[W]e find no merit to [the employer’s] contention that Whitmoyer’s 

counsel [(Counsel)] knew, by virtue of filling in the ‘37%’ figure on 

the TPSA, that his client’s balance of recovery would be susceptible 

to diminution for future medical expenses paid by the employer. 

[The employer] characterizes this figure as relevant only to future 

expenses, and therefore only to medical expenses, because 

Whitmoyer’s disability benefits had been commuted many years 

prior. This characterization is both inaccurate and inconsistent with 

[S]ection 319 [of the Act]’s command that ‘the employer shall pay 

that proportion of the attorney’s fees and other proper disbursements 

that the amount of compensation paid or payable at the time of 

recovery or settlement bears to the total recovery or settlement.’ 77 

P.S. § 671 . . . .

The Bureau’s instructions for filling in the blanks of the boilerplate 

third-party settlement agreement provide, inter alia, that the ‘rate of 

reimbursement to the employee of expenses of recovery is 

determined by dividing the [WC] lien by the gross recovery.’ . . . . 

Thus, the ‘37%’ figure is both required by the Bureau and material 

to calculating the employer’s net entitlement to subrogation at the 

time of settlement.

Whitmoyer, 186 A.3d at 957-58 (internal citations and emphasis omitted; italics added).

Just as Counsel in Whitmoyer could not have presumed knowledge as to the 

meaning of the terms as written in the Bureau’s boilerplate form, neither could Guardian waive his 

rights thereunder, simply by filling in the blanks as required.
14

Guardian rejoins that Employer waived the collateral estoppel and res 

judicata defenses because it did not raise these affirmative defenses before the WCJ. 

Guardian further responds that Employer also waived the res judicata affirmative 

defense by failing to develop that argument in its brief to this Court, and, even if 

made, Employer would not have prevailed on that argument.

At the outset, Employer raised the collateral estoppel defense before the 

Board and the Board addressed it. Thus, in an abundance of caution, this Court will 

also address Employer’s collateral estoppel argument. Concerning Employer’s res 

judicata argument, in its brief to this Court, the full extent of Employer’s argument 

is as follows: “Collateral estoppel, a form of res judicata, applies in this matter to 

bar Claimant’s [] Petition.” Employer Br. at 10. The law is well-established that 

arguments not fully developed will be deemed waived. See In re Condemnation of 

Land for S.E. Cent. Bus. Dist. Redevelopment Area No. 1 (405 Madison St., City of 

Chester), 946 A.2d 1154, 1156 (Pa. Cmwlth. 2008) (“Arguments not properly 

developed in a brief will be deemed waived”). Because Employer did not properly 

develop its res judicata argument, the Court will not address it separately. 

The Pennsylvania Supreme Court has explained:

Collateral estoppel is similar [to res judicata] in that it bars 

re-litigation of an issue that was decided in a prior action, 

although it does not require that the claim as such be the 

same. For example, if, in a breach of contract action, the 

defendant asserts that the contract is invalid because of 

fraud, but the contract is ruled valid and the defendant is 

found liable, in a future lawsuit against the same party 

alleging a separate breach of the same contract the 

defendant is precluded from asserting the invalidity of the 

contract based on fraud. See Restatement (Second) of 

Judgments § 27, cmt. a, illus. 2 ([Am. Law Inst.] 1982).

Collateral estoppel will only apply where: the issue is the 

same as in the prior litigation; the prior action resulted in 

a final judgment on the merits; the party against whom the 
15

doctrine is asserted was a party or in privity with a party 

to the prior action; and the party against whom the 

doctrine is asserted had a full and fair opportunity to 

litigate the issue in the prior action. See Rue v. K-Mart 

Corp., . . . 713 A.2d 82, 84 ([Pa.] 1998). In some 

renditions, courts add a fifth element, namely, that 

resolution of the issue in the prior proceeding was essential 

to the judgment. See, e.g., Off[.] of Disciplinary Counsel 

v. Kiesewetter, . . . 889 A.2d 47, 50-51 ([Pa.] 2005).

In re Coatesville Area Sch. Dist., ___ A.3d ___, ___ (Pa. No. 7 MAP 2020, filed 

January 20, 2021), slip op. at 6 (emphasis added).

Here, Claimant settled his third-party products liability lawsuit by 

agreeing with RECO to the contents of the Petition for Approval. Employer was not 

a party or in privity with a party thereto. The trial court ordered the TPSA be 

executed, and approved the net lien for Employer as a collateral issue so the thirdparty settlement could be achieved. The legal and factual issues surrounding the 

TPSA, and upon which the TPSA relied, were not litigated before the trial court, nor 

did the parties thereto have the opportunity to litigate these issues to a final 

adjudication on the merits. Accordingly, because Claimant did not have a full and 

fair opportunity to litigate the issue in the prior action, collateral estoppel does not 

apply.

Finally, Employer argues that the WCJ did not issue a well-reasoned 

decision because she failed to adequately address all exhibits and Claimant’s and 

Employer’s exhibits demonstrate that Claimant voluntarily agreed to a reduced 

reimbursement rate on future medical benefits. Guardian responds that the WCJ’s 

FOFs 6, 7 and 13 demonstrated her clear understanding that the parties had followed 

the prior, generally accepted, erroneous interpretation of Section 319 of the Act, 

regarding post third-party settlement medical benefit payments. Guardian maintains 

that the WCJ’s decision correctly recognized that the TPSA cannot constitute
16

waiver, and neither can a few letters describing the mechanics of how those

erroneous payments would be made.

Section 422(a) of the Act provides:

Neither the [B]oard nor any of its members nor any [WCJ] 

shall be bound by the common law or statutory rules of 

evidence in conducting any hearing or investigation, but 

all findings of fact shall be based upon sufficient 

competent evidence to justify same. All parties to an 

adjudicatory proceeding are entitled to a reasoned 

decision containing findings of fact and conclusions of 

law based upon the evidence as a whole which clearly 

and concisely states and explains the rationale for the 

decisions so that all can determine why and how a 

particular result was reached. The [WCJ] shall specify 

the evidence upon which the [WCJ] relies and state the 

reasons for accepting it in conformity with this section.

When faced with conflicting evidence, the [WCJ] must 

adequately explain the reasons for rejecting or discrediting 

competent evidence. Uncontroverted evidence may not be 

rejected for no reason or for an irrational reason; the 

[WCJ] must identify that evidence and explain adequately 

the reasons for its rejection. The adjudication shall 

provide the basis for meaningful appellate review.

77 P.S. § 834 (emphasis added). This Court has explained:

In order to satisfy this standard, a WCJ does not need to 

discuss every detail of the evidence in the record. Rather, 

Section 422(a) of the Act requires WCJs to issue reasoned 

decisions so that this Court does not have to ‘imagine’ the 

reasons why a WCJ finds that the conflicting testimony of 

one witness was more credible than the testimony of 

another witness. 

Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 76 (Pa. 

Cmwlth. 2012) (citations omitted).

Here, the WCJ opined:
17

6. The Bureau form[] TPSA[] was signed by all [p]arties. 

The TPSA reflects in #9 that the Employer/Insurer is 

responsible for 33.7% of any future weekly benefits and 

medical expenses to satisfy its obligation to reimburse its 

pro rata share of employee’s fees and expenses until the 

subrogation interest is exhausted[:] $8,794[,]377.00. 

Thereafter, the Employer/Insurer is responsible for 100% 

of any compensation liability. (Claimant’s Exhibit 2.)

7. Employer’s Exhibits B-E address, through 

correspondence and e-mails of June 2016, the mechanism 

for how future medical expenses would be paid.

[FN] 1

[FN]1 Essentially, [Employer’s insurance carrier] 

would review and reprice a medical bill, pay 

33.7% of the medical bill, and then forward the 

medical bill, repriced amount, and proof of 

[Employer’s insurance carrier’s] 33.7% to the 

Trustee . . . , which then paid the remaining 66.3%

balance of the medical bill.

. . . . 

13. Based upon a review of the foregoing, and a review of 

the Act and the Whitmoyer decision, I find that [] Claimant 

has met his burden of proof in the Petition . . . as of June 

19, 2018.

a. The [Employer’s insurance c]arrier is responsible for the 

payment of Claimant’s medical expenses at the rate of

100%, and of course, in accordance with repricing and 

other requirements of the Act.

The TPSA is set aside only to the extent it required the 

Trust to fund 66.3% of [the] medical expenses.

b. In so finding, I note that the use of the Bureau TPSA 

form by the [p]arties is not binding.

It is noted that the Court, in Whitmoyer, stated[:]

‘Similarly, because we granted allocator to determine the 

meaning of a [s]tatutory [t]erm, the [p]arties’ arguments 

that are specific to the TPSA, rather than the language of 

the [s]tatute, are unavailing.’ Id. at 957.
18

The TPSA, like many other forms used by the [p]arties in 

[WC] matters, may be challenged, set-aside or reviewed. 

Based upon Whitmoyer, Claimant has requested a Review 

of Medical Billing, which requires a review of the TPSA 

form.

c. The [p]arties have followed a procedure since June of 

2016, on how medical bills are processed and paid. This 

process was based upon years of interpretation of Section 

319 of the Act. I do not find that by entering into this 

arrangement in 2016, that Claimant has ‘waived’ any 

rights. I note Claimant’s counsel’s reference to the 

Commonwealth Court’s [d]ecision in Whitmoyer,

[6] on the 

issue of waiver.

d. Whitmoyer applies to this matter as of June 19, 2018.

WCJ Dec. at 4, 5. Clearly, this “adjudication [] provide[s] the basis for meaningful 

appellate review.” 77 P.S. § 834. Accordingly, the WCJ issued a reasoned decision.

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

_________________________________

ANNE E. COVEY, Judge

6 Whitmoyer v. Workers’ Comp. Appeal Bd. (Mountain County Meats), 150 A.3d 1003 (Pa. 

Cmwlth. 2016), rev’d, 186 A.3d 947 (Pa. 2018).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Beaver Valley Slag, Inc., :

Petitioner :

:

v. :

:

Jason Marchionda (Workers’ :

Compensation Appeal Board), : No. 867 C.D. 2020

Respondent :

:

Jamie Young, Guardian of the :

Estate of Jason Marchionda, an :

Incapacitated Person, :

Petitioner :

:

v. :

:

Beaver Valley Slag, Inc. (Workers’ :

Compensation Appeal Board), : No. 901 C.D. 2020

Respondent :

O R D E R

AND NOW, this 10th day of March, 2021, the Workers’ Compensation 

Appeal Board’s August 13, 2020 order is affirmed.

_________________________________

ANNE E. COVEY, Judge