S. Clark v. Keystone Lawn Spray (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Stephen Clark, :
Petitioner :
:
v. :
:
Keystone Lawn Spray :
(Workers’ Compensation :
Appeal Board), : No. 1468 C.D. 2022
Respondent : Submitted: May 26, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
OPINION BY
JUDGE COVEY FILED: September 6, 2023
Stephen Clark (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) November 9, 2022 order
affirming WC Judge (WCJ) Tina Rago’s (WCJ Rago) decision that denied
Claimant’s February 13, 2021 Claim Petition for WC Benefits (2021 Claim
Petition), with prejudice, as barred by res judicata and collateral estoppel.
Essentially, the only issue before this Court is whether the Board properly affirmed
WCJ Rago’s decision dismissing the 2021 Claim Petition based upon res judicata
and/or collateral estoppel.1 After review, this Court affirms.
On March 2, 1982, Claimant sustained a work-related injury while
employed by Keystone Lawn Spray (Employer). According to the Board and WCJ
1
Claimant set forth 11 issues in his Statement of the Questions Involved. See Claimant
Br. at 6. However, because the issue as stated by this Court is dispositive, this Court does not
reach Claimant’s issues.
Rago, the WC Bureau possessed no documentation concerning Claimant’s claim,
given the claim’s age and the time since the prior litigation’s conclusion. Therefore,
WCJ Rago and the Board ascertained information from this Court’s decision in
Clark v. Workmen’s Compensation Appeal Board (Keystone Lawn Spray), 672 A.2d
348 (Pa. Cmwlth. 1995) (Clark I), which affirmed the Board’s dismissal of
Claimant’s February 19, 1993 appeal nunc pro tunc from Referee2 Walter M.
Leonard’s (Referee Leonard) September 20, 1988 decision (Referee Leonard’s
Decision) granting Employer’s petition requesting Claimant’s benefits be suspended
as of August 16, 1983 (Suspension Petition), because of the availability of work for
Claimant.
The facts as stated in Clark I are as follows:
On March 2, 1982, Claimant was employed as a lawn
spray technician for [Employer]. On that date, Claimant
was exposed to various chemicals while in the course of
his employment, and, as a result, developed a rash and
peeling skin [(Work Injury)]. Employer accepted this
[Work I]njury as compensable and issued a notice of
compensation payable [(NCP)] on April 2, 1982. On June
9, 1983, Claimant filed a claim petition for unpaid medical
expenses for the treatment of his rash and stomach
disorders associated with his [Work I]njury. Employer
denied the allegations contained in the claim petition, and
in October of 1983, filed [the Suspension Petition]. On
February 22, 1984, Claimant filed a second claim petition
in which he alleged further stomach disorders and allergic
reactions to chemicals stemming from the March 2, 1982
injury. Subsequently, on August 6, 1987, Claimant
2
Referees are now called [WCJs] under the 1993 amendments to the
[WC] Act [], Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §
701. See Act 44, Act of July 2, 1993, P.L. 190. However, since this
case was before the [R]eferee prior to the effective date of the
amendments, August 31, 1993, we will refer to the [R]eferee as such
and not as a [WCJ].
Clark I, 672 A.2d at 349 n.1.
2
amended his claim petition to a review petition in which
he challenged the calculation of his average weekly wage.
Hearings were held before Referee . . . Leonard
concerning both of Claimant’s claim petitions and
Employer’s suspension petition. Dr. Chetwynd E.
Bowling [(Dr. Bowling)] testified on behalf of Claimant
and opined that Claimant was physically unable to work
because of continued episodes of severe prostration
resulting from his overexposure to chemicals on March 2,
1982. In rebuttal, Employer presented the testimony of
Dr. Gary Alan Newman [(Dr. Newman)] who stated that
Claimant was fully recovered and was able to return to
work. Employer also presented evidence that alternate
employment was available to Claimant as of August 16,
1983. Referee Leonard accepted the testimony of Dr.
Newman and rejected that of Dr. Bowling. Based on this
finding, Referee Leonard, in his decision circulated on
September 20, 1988, granted Employer’s [Suspension
P]etition and terminated Claimant’s compensation as of
August 16, 1983.
Claimant filed a timely appeal of Referee Leonard’s
[D]ecision on October 15, 1988. However, Claimant’s
counsel voluntarily withdrew that appeal, and the Board
by an order dated May 30, 1990, officially closed the
record in this case without reaching the merits [(1990
Board Order)]. On February 19, 1993, over four years
after [Referee Leonard’s D]ecision, Claimant filed a
petition for appeal nunc pro tunc and a petition for
rehearing with the Board on the basis of alleged fraud by
[] Employer. Claimant stated in his appeal to the Board
that Employer’s witness, Dr. Newman, had lied in giving
his testimony. He also alleged that Dr. Newman did not
have sufficient training to give competent testimony.
Finally, he argued that [Referee Leonard] was biased in
favor of Employer and had acted as an advocate for
Employer instead of as an impartial fact[-]finder. On
March 1, 1994, the Board denied both Claimant’s petition
for a rehearing and his petition for appeal nunc pro tunc.
In denying Claimant’s petition for rehearing, the Board
found that there was not sufficient cause shown to justify
granting a rehearing and that Claimant was merely trying
to strengthen evidence which had already been presented
3
before [Referee Leonard]. Although Employer had made
a motion to quash the petition for rehearing on
jurisdictional grounds, the Board did not rule on that
request and instead chose to deny Claimant’s petition for
lack of cause shown.
The Board also denied, on jurisdictional grounds,
Claimant’s appeal nunc pro tunc. The Board found that
his appeal had been untimely filed under Section 423[(a)]
of the [WC] Act, 77 P.S. § 853, and that Claimant’s
allegations of fraud and other improprieties, which might
warrant allowing a late appeal, were unfounded. The
Board, therefore, granted Employer’s motion to quash
Claimant’s appeal.
Clark I, 672 A.2d at 349-50 (footnotes omitted; italics added). In Clark I, this Court
rejected Claimant’s appellate arguments and affirmed the Board’s decision.3
On November 3, 2018, approximately 24 years after this Court decided
Clark I, Claimant appealed, pro se, from Referee Leonard’s Decision alleging “fraud
on the court” and that his “wages were improperly calculated.” Reproduced Record
(R.R.) at 36a.4 On February 7, 2019, the Board denied Claimant’s appeal for lack
of jurisdiction because Claimant did not file his appeal within 20 days of Referee
Leonard’s Decision as Section 423 of the WC Act requires, or within 18 months
after the Board’s 1990 order closed the case, as Section 426 of the Act5 requires.
Claimant appealed to this Court, which affirmed the Board’s decision on October
30, 2019. See Clark v. Workers’ Comp. Appeal Bd. (Keystone Lawn Spray) (Pa.
Cmwlth. No. 195 C.D. 2019, filed Oct. 30, 2019).
3
The Pennsylvania Supreme Court denied allowance of appeal.
4
Pennsylvania Rule of Appellate Procedure 2173 requires a reproduced record to “be
numbered . . . in Arabic figures . . . followed in the reproduced record by a small a[.]” Pa.R.A.P.
2173. Claimant did not include the small a in numbering the pages of his Reproduced Record.
Nevertheless, this Court’s references to specific pages in the Reproduced Record shall be followed
by an a.
5
Added by Section 6 of the Act of June 26, 1919, P.L. 642, as amended, 77 P.S. § 871.
4
On February 13, 2021, Claimant filed the 2021 Claim Petition, wherein
he alleged that he had “[a]cquired Porphyria[6] and associated conditions, [a]ll body
parts affected” on March 2, 1982, asserting that a “[b]roken hose caused over[-
]exposure to lawn care chemicals while spraying [the] lawn of [a] homeowner.
[Employer] accepted [the] injury and issued [an] NCP bringing [C]laimant’s
employment within the provisions of the [WC] Act.” R.R. at 6a. Claimant sought
temporary total disability benefits from March 2, 1982 to January 1, 1998, and
ongoing partial disability thereafter. Employer denied Claimant’s material
averments, raised affirmative defenses including that res judicata and collateral
estoppel barred the 2021 Claim Petition, and requested that the 2021 Claim Petition
be dismissed. On December 16, 2021, WCJ Rago denied and dismissed the 2021
Claim Petition with prejudice, concluding that res judicata and collateral estoppel
barred Claimant’s action. Claimant appealed to the Board. On November 9, 2022,
the Board affirmed WCJ Rago’s decision. Claimant appealed to this Court.7 On
6
Relevant to this litigation, porphyria has been defined by the Mayo
Clinic as “a group of disorders that result from a buildup of natural
chemicals that produce porphyrin in your body.” Mayo Clinic,
Patient Care & Health Information, Diseases & Conditions:
Porphyria, https://www.mayoclinic.org/disease-
conditions/pomhyria/symptoms-causes/syc-20356066 (updated
6/3/2020). The Mayo Clinic further indicates that “[t]here are two
general categories of porphyria: acute, which mainly affects the
nervous system, and cutaneous, which mainly affects the skin.
Some types of porphyria have both nervous system symptoms and
skin symptoms.” Id. The Mayo Clinic relates the following
symptoms to porphyria disorders: severe abdominal pain, nausea,
vomiting, weakness or paralysis, sun sensitivity, “sudden painful
skin redness (erythema) and swelling (edema),” and skin blisters,
among various other symptoms. Id.
R.R. at 56a.
7
“In a [WC] appeal, we are ‘limited to determining whether necessary findings of fact are
supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated.’” Skay v. Borjeson & Maizel LLC (Workers’ Comp. Appeal
5
June 2, 2023, Claimant filed an Application for Oral Argument. Employer filed its
answer thereto on June 9, 2023.
Claimant contends that WCJ Rago erroneously applied res judicata
and/or collateral estoppel when she dismissed the 2021 Claim Petition, and the
Board erred by affirming her decision. Employer rejoins that Claimant is attempting
to relitigate an established diagnosis underlying findings of disability and full
recovery the Referee correctly determined, and, therefore, WCJ Rago properly
dismissed the 2021 Claim Petition on the basis of res judicata and/or collateral
estoppel.
This Court has explained:
The judicial doctrine of res judicata “bars actions on a
claim, or any part of a claim, which was the subject of a
prior action, or could have been raised in that action.”
Appeal of Coatesville Area Sch. Dist., . . . 244 A.3d 373,
378 ([Pa.] 2021). For the bar of res judicata to apply, both
actions must have “an identity of issues, an identity of
causes of action, identity of persons and parties to the
action, and identity of the quality or capacity of the parties
suing or being sued.” Id. at 379 (citations and internal
quotation marks omitted). . . .
Collateral estoppel bars re-litigation of an issue decided in
a prior action. [Id.] at 379. Collateral estoppel may be
applied only if both cases involve the same issue, the prior
action was litigated to a final judgment on the merits, the
party to be estopped was a party or was in privity with a
party to the prior action and had a full and fair opportunity
to litigate the issue in the prior action, and “resolution of
the issue in the prior proceeding was essential to the
judgment.” Id.Pocono Mountain Sch. Dist. v. Kojeszewski (Workers’ Comp. Appeal Bd.), 280 A.3d
12, 17-18 (Pa. Cmwlth. 2022). Thus, “where particular questions of fact essential to
Bd.), 280 A.3d 19, 21 (Pa. Cmwlth. 2022) (quoting Elberson v. Workers’ Comp. Appeal Bd.
(Elwyn, Inc.), 936 A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007)).
6
the judgment are actually litigated and determined by a final valid judgment, the
determination is conclusive between the parties in any subsequent action on a
different cause of action.” Williams v. Workers’ Comp. Appeal Bd. (S. Hills Health
Sys.), 877 A.2d 531, 535 (Pa. Cmwlth. 2005) (quoting Patel v. Workmen’s Comp.
Appeal Bd. (Sauquoit Fibers Co.), 488 A.2d 1177, 1179 (Pa. Cmwlth. 1985)).
“Application of [res judicata or] collateral estoppel in a particular case is a question
of law . . . .” Pa. Bd. of Prob. & Parole v. Pa. Hum. Rels. Comm’n, 66 A.3d 390,
395 (Pa. Cmwlth. 2013).
This Court addressed a scenario similar to the instant case in Lowe v.
Workmen’s Compensation Appeal Board (Pennsylvania Mines Corp.), 683 A.2d
1327 (Pa. Cmwlth. 1996). Therein, the claimant sustained a work-related back
injury on April 28, 1986, and received total disability benefits until 1990, when the
referee granted the employer’s termination petition, finding, in relevant part, that
“[a]ny and all disability relating to the compensable injury of April 28, 1986[,]
ceased and terminated September 7, 1988.” Id. at 1329. The referee’s order stated,
inter alia, that “[a]ny and all disability beyond September 7, 1988 is unrelated to the
compensable injury of April 28, 1986.” Id. The claimant did not appeal from the
referee’s decision. On January 22, 1993, the claimant filed a reinstatement petition
alleging that his condition had deteriorated and his disability recurred. The claimant
introduced expert medical testimony stating that, as a result of the April 28, 1986
work injury, the claimant “suffered from ‘nerve root irritation with sciatica with
radicular pain and severe L[-5] sprain.’” Id. The employer introduced medical
testimony that the claimant was completely recovered from the April 28, 1986 work
injury. The referee found the claimant’s expert’s testimony more credible and
ordered that the claimant’s disability benefits be reinstated. The employer appealed
to the Board which concluded that the referee had erred because the original referee
7
had found that any disability had ceased, and revisiting the issue was barred by res
judicata. The claimant appealed to this Court.
This Court agreed with the Board, reasoning:
[In Hebden v. Workmen’s Compensation Appeals Board
(Bethenergy Mines, Inc.), 632 A.2d 1302 (Pa. 1993),]
[o]ur Pennsylvania Supreme Court noted that, “[r]es
[j]udicata or issue preclusion prevents an employer from
relitigating, by way of a petition to modify or terminate
benefits, the original medical diagnosis underlying a
referee’s finding of a claimant’s disability as of the date of
the compensation award.” [Id.] at 1304 (citations
omitted).
The present controversy involves the mirror image of the
issue visited in Hebden. We must determine whether an
employee can relitigate the original diagnosis
underlying a referee’s finding of a claimant’s disability
as of the date of a prior termination. While doing so,
we are constantly vigilant of the distinction between the
terms “injury” and “disability” and that “for purposes of
receiving [WC], ‘disability’ is a term synonymous with
loss of earning power[,”] so that, “although a worker may
suffer a work-related physical disability, it is only if that
physical disability occasions a loss of earnings that a
worker will be ‘disabled’ under the meaning of the [WC]
Act and will be entitled to receive compensation.”
Bissland v. Workmen’s Comp[.] Appeal B[d.] (Boyertown
Auto), . . . 638 A.2d 493, 495 ([Pa. Cmwlth.] 1994) (citing,
Scobbie v. Workmen’s Comp[.] Appeal B[d.] (Greenville
Steel Car Co.), . . . 545 A.2d 465 ([Pa. Cmwlth.] 1988)).
On February 16, 1990, the original referee granted [the
e]mployer’s termination petition and held that any and
all disability ceased from the work-related injury. In
doing so, the original referee specifically accepted the
medical testimony of Robert M. Yanchus, M.D. (Dr.
Yanchus), [e]mployer’s witness. Dr. Yanchus opined that
“the claimant suffered an acute lumbosacral sprain based
on history as a result of the injury of April 28, 1986[,]
which exhibited a full recovery on examination allowing
the claimant to return to his former position as Section
8
Foreman in the coal mines without restrictions.”
Referee’s decision, Feb[.] 16, 1990, F[inding of Fact] No.
4 at 3 ([italic] emphasis added).
In adjudicating the current reinstatement petition[,] the
referee adopted [the claimant’s expert] Dr. [Joseph R.]
Sabo’s [(Dr. Sabo)] opinion “in full as a finding of fact for
this decision.” Referee’s Decision, Nov[.] 24, 1993, F.F.
No. 8, at 9. The keystone of Dr. Sabo’s opinion was his
acceptance that [c]laimant never recovered from his
initial injury. In order to find that the evidence presented
warranted a reinstatement, the referee necessarily
revisited the issue of whether any disability existing
beyond September 7, 1988, was unrelated to the
compensable injury of April 28, 1986. Accordingly, we
must view [the c]laimant’s reinstatement petition as an
attempt to relitigate the merits of the original medical
diagnosis underlying the prior termination.
Lowe, 683 A.2d at 1330-331 (bold and underline emphasis added; footnote omitted).
Accordingly, Lowe prohibits an employee, such as Claimant, from “relitigat[ing] the
merits of an original medical diagnosis underlying [a] prior termination.” Id.Notwithstanding, Claimant contends that his Porphyria is not merely an
injury, but an occupational disease under Section 108(b), (c) and/or (n) of the WC
Act,8 and accordingly, the Board erred when it dismissed his 2021 Claim Petition as
8
Section 108(b), (c) of the WC Act was added by Section 1 of the Act of October 17, 1972,
77 P.S. § 27.1(b), (c). Section 108(n) of the WC Act was added by Section 1 of the Act of July 7,
2011, P.L. 251, 77 P.S. § 27.1(n). Section 108 of the WC Act defines occupational disease in
relevant part:
(b) Poisoning by phosphorus, its preparations or compounds, in any
occupation involving direct contact with, handling thereof, or
exposure thereto.
(c) Poisoning by methanol, carbon disulfide, carbon monoxide,
hydrocarbon distillates (naphthas and others) or halogenated
hydrocarbons, toluene diisocyanate (T.D.1.) or any preparations
containing these chemicals or any of them, in any occupation
involving direct contact with, handling thereof, or exposure thereto.
....
9
barred by res judicata and/or collateral estoppel. In support of his position, Claimant
cites this Court’s decision in Robachinski v. Workmen’s Compensation Appeal
Board, 380 A.2d 952 (Pa. Cmwlth. 1977).9
Initially, regarding the res judicata effect on occupational disease
claims, this Court has explained:
An occupational disease injury defined under Section
108 [of the WC Act] has different elements of proof
than does a claim for an injury which is not an
occupational disease. Had [the c]laimant elected to
pursue a claim under Section 108(m) [of the WC Act],
wherein tuberculosis is a specifically enumerated disease,
he would need to show that he was employed in one of
several statutorily recognized occupations involving
exposure to tuberculosis. Had [the c]laimant brought his
claim under Section 108(n) [of the WC Act], he would
need to demonstrate: [(]1) his exposure to the disease by
reason of employment[;] [(]2) a causal relationship
between his disease and his industry or occupation[;] and
[(]3) an incidence of that disease substantially greater in
his industry or occupation than in that of the general
population. No such factual elements would need to be
proven in a non-occupational injury under Section 301(a)
[of the WC Act, 77 P.S. § 431,] generally. Thus, the
(n) All other diseases (1) to which the claimant is exposed by reason
of his employment, and (2) which are causally related to the industry
or occupation, and (3) the incidence of which is substantially greater
in that industry or occupation than in the general population. For
the purposes of this clause, partial loss of hearing in one or both ears
due to noise; and the diseases silicosis, anthraco[]silicosis and coal
workers’ pneumoconiosis resulting from employment in and around
a coal mine, shall not be considered occupational diseases.
77 P.S. § 27.1(b), (c), (n).
9
Claimant asserts that the March 2, 1982 chemical exposure work incident caused
Porphyria, but such disease was unknown to medical science at the time of his injury. Employer
notes that despite Claimant’s assertion that “dual porphyria [is] a disease which was newly
discovered in 1989[,]” Claimant Br. at 12, “in Reardon v. Weinberger, 387 F. Supp. 1210 (E.D.
Pa. 1975), a case decided seven (7) years prior to Claimant’s [W]ork [I]njury, the [c]ourt discusses
a diagnosis of [a]cute intermittent porphyria alleged by a claimant seeking Social Security
Disability benefits.” Employer Br. at 13 n.7.
10
ultimate issues under Section 301(a) [of the WC Act] on
the one hand and [Section] 108 [of the WC Act] on the
other are not the same. We therefore believe that the
doctrine of technical res judicata is not applicable.
What is applicable, in our view, however, is the
doctrine of collateral estoppel (or res judicata in its
broad sense). This doctrine states that where particular
questions of fact essential to the judgment are actually
litigated and determined by a final valid judgment, the
determination is conclusive between the parties in any
subsequent action on a different cause of action.[10]
Where the second action between the same
parties is upon a different claim or demand,
the judgment in the prior action operates as
an estoppel in the second action only as to
those matters in issue that[:] (1) are identical;
(2) were actually litigated; (3) were essential
to the judgment (or decree, as the case may
be); and (4) were “material” to the
adjudication.
McCarthy [v. Twp. of McCandless], . . . 300 A.2d [815,]
820-21 [(Pa. Cmwlth. 1973)].
Patel, 488 A.2d at 1179 (italics and bold emphasis added).
In Robachinski, a mining industry employee filed a WC claim alleging
that he had become totally and permanently disabled due to work-related
10
See, e.g., Christopher v. Council of Plymouth Twp., 635 A.2d 749 (Pa. Cmwlth. 1993),
wherein this Court explained:
[T]he doctrine of collateral estoppel . . . provides that the
determination of a fact in a prior action is deemed conclusive
between the parties in a subsequent action even though the cause of
action is different, where the fact was actually litigated in the prior
action, was essential to that judgment, and was determined by a valid
and final judgment. A [WC] claim and a common law cause of
action are not identical and consequently res judicata is not
applicable. A [WC] determination that a claimant was no longer
disabled can however collaterally estop consideration of the
identical issue in a subsequent civil trial. Id.Id. at 752 (citations and footnote omitted; bold and italic emphasis added).
11
anthracosilicosis11 on October 13, 1973. A referee subsequently disallowed the
claim, and the Board affirmed the referee’s decision, dismissing the appeal on
October 24, 1974. The claimant did not appeal from the Board’s action. On August
15, 1975, the claimant filed another claim petition again alleging that he had become
totally and permanently disabled due to anthracosilicosis. However, the claimant
indicated that the date his disability began was August 13, 1975. The referee
found that the claimant had become permanently and totally disabled from
anthracosilicosis on August 13, 1975, due to the accumulated effect of all of his
exposure to a silica hazard, and awarded compensation. On appeal, the Board
reversed the referee’s decision, concluding that the prior finding that the claimant
was not disabled was res judicata and barred any subsequent petition averring
disability from the same employment without any additional exposure.
On appeal, this Court reversed, reasoning:
The referee’s finding that the claimant was not
disabled on October 13, 1973[,] was not challenged in
the subsequent claim petition which alleged disability
on a different date.
The fact that the claimant did not have additional
employment exposure in the period between his first and
second claim petitions does not make the referee’s
subsequent finding of disability unreasonable, for the
progressive nature of occupational diseases has long
been recognized by the courts of the Commonwealth. In
McIntyre v. E. J. Lavino & Co., . . . 25 A.2d 163, 164 ([Pa.]
1942), our Supreme Court stated:
[]Occupational diseases are, from a legal
standpoint, peculiar in [] that they arise, not
from an accident or event happening at a
precise moment, but from a day by day
11
Merriam-Webster’s Medical Dictionary defines anthracosilicosis as “massive fibrosis
of the lungs resulting from inhalation of carbon and quartz dusts and marked by shortness of
breath.” Merriam-Webster.com Medical Dictionary, Merriam-Webster, https://www.merriam-
webster.com/medical/anthracosilicosis (last visited September 5, 2023).
12
exposure to unhealthful conditions over an
extended period; the exact time of their origin
is necessarily obscure and their insidious
progress is not revealed until, frequently after
a long interval, the disability which they
create manifests itself.[]
In the absence of a referee’s prior finding that the claimant
did not have the disease at all, the lack of additional
employment exposure does not make the referee’s
subsequent finding of disability unreasonable.
Robachinski, 380 A.2d at 954 (bold and underline emphasis added). Here, unlike in
Robachinski, the 2021 Claim Petition did not allege disability on a different date.
Rather, Claimant declared in the 2021 Claim Petition that the Work Injury occurred
on March 2, 1982, the same injury date for which he received WC benefits and from
which Referee Leonard found that he had fully recovered.
In Miller v. Workmen’s Compensation Appeal Board (Warren Hess,
Inc.), 452 A.2d 608 (Pa. Cmwlth. 1982), this Court explained:
We have repeatedly held that due to the progressive nature
of the debilitating effects of an occupational disease, a
claimant who has not prevailed in a previous petition
seeking total disability is not barred by res judicata from
refiling his claim in an attempt to prove disability on a later
date. See[,] e.g.[,] Armco Steel Corp. v. Workmen’s
Comp[.] Appeal B[d.], . . . 431 A.2d 363 ([Pa. Cmwlth.]
1981); Caggiano v. Workmen’s Comp[.] Appeal B[d.], . . .
400 A.2d 1382 ([Pa. Cmwlth.] 1979); Robachinski . . . .
However, in each of these cases the determinative fact
establishing the inapplicability of the doctrine of res
judicata was that the later claim petition alleged the
onset of disability at a later point than had been first
alleged. Therefore, we reasoned, the issue before the
referee with respect to the second claim petition was
not the same issue as had been earlier decided. For
example, in Robachinski we wrote:
....
13
We held in McCarthy, supra, that, when in
both the old and the new proceedings the
subject matter and the ultimate issues are the
same, there is an identity of causes of action
for purposes of res judicata. The state of the
claimant’s health at a given time is the subject
matter of a claim petition alleging disability
because of anthracosilicosis with the ultimate
issue being whether or not the claimant is
disabled within the meaning of the [WC] Act
at the time alleged in the petition. Here, the
claimant’s initial petition alleged total
disability because of anthracosilicosis on
October 13, 1973. His second petition,
however, alleged total disability because of
anthracosilicosis on August 13, 1975, a date
some 22 months later. The subject matter and
the ultimate issues of the claim petitions
differ, therefore, in the time periods in which
disability is alleged, and we believe that this
difference renders the doctrine of res judicata
inapplicable.
Id.[,] . . . 380 A.2d at 953.
In the instant case[,] both the 1975 and 1977 claim
petitions allege the onset of the claimant’s disability to
be August 25, 1975. It would appear, then, that the
principle of res judicata barred the relitigation of the
issue of whether the claimant became disabled due to
silicosis on that date.
Miller, 452 A.2d at 610-11 (bold, italic, and underline emphasis added); see also
Evans v. Workmen’s Comp. Appeal Bd. (The Deitch Co.), 550 A.2d 868 (Pa.
Cmwlth. 1988).
Here, similar to Miller, Claimant alleged in the 2021 Claim Petition that
his work-related injury occurred on March 2, 1982, the same injury date, involving
the same incident addressed in Referee Leonard’s Decision for which Claimant
received benefits, and wherein Referee Leonard found that Claimant had fully
recovered. In both Referee Leonard’s Decision, and Claimant’s 2021 Claim
14
Petition, Claimant’s disability began March 2, 1982. The subject matter addressed
in Referee Leonard’s Decision, and in the instant action, are identical - i.e., “the state
of [C]laimant’s health [on March 2, 1982,] . . . with the ultimate issue being whether
or not [C]laimant is disabled within the meaning of the [WC] Act at the time alleged
in the petition.” Robachinski, 380 A.2d at 953. In Referee Leonard’s Decision, he
adopted Employer’s physician’s conclusion that Claimant had fully recovered from
the March 2, 1982 Work Injury, granted Employer’s Suspension Petition and
terminated Claimant’s WC benefits effective August 16, 1983. Thus, Claimant’s
Work Injury and his recovery therefrom, were actually litigated before Referee
Leonard. See id. Claimant’s Work Injury and his recovery were essential to Referee
Leonard’s Decision and were material to Employer’s Suspension Petition
adjudication. See Patel. Because Claimant again seeks WC benefits for the March
2, 1982 Work Injury from which Claimant was found to have fully recovered,
Claimant’s 2021 Claim Petition was barred by collateral estoppel, and the Board
properly dismissed Claimant’s 2021 Claim Petition consistent with Miller and
Robachinski.12
12
Claimant also asserts that WCJ Rago denied him due process when she dismissed the
2021 Claim Petition, as barred by res judicata and/or collateral estoppel, without reviewing his
evidence. “The essential elements of procedural due process are notice and an opportunity to be
heard.” Arnold v. Workers’ Comp. Appeal Bd. (Lacour Painting, Inc.), 110 A.3d 1063, 1068 (Pa.
Cmwlth. 2015). On February 24, 2021, Employer served Claimant with its answer to the 2021
Claim Petition which included res judicata and collateral estoppel defenses. See R.R. at 13a-19a.
Claimant appeared at WCJ Rago’s August 12, 2021 telephonic hearing, wherein Claimant was
afforded the opportunity to respond to the res judicata and collateral estoppel issues. See R.R. at
70a. WCJ Rago rendered a legal determination on the res judicata/collateral estoppel effect of the
prior proceedings on the 2021 Claim Petition, see Pa. Bd. of Prob. & Parole, for which Claimant’s
substantive evidence was not relevant. Thus, Claimant’s due process claim is meritless.
15
For all of the above reasons, the Board’s order is affirmed.13
_________________________________
ANNE E. COVEY, Judge
Judge Fizzano Cannon did not participate in the decision in this matter.
Given this Court’s disposition of Claimant’s appeal, Claimant’s Application for Oral
13
Argument is denied.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Stephen Clark, :
Petitioner :
:
v. :
:
Keystone Lawn Spray :
(Workers’ Compensation :
Appeal Board), : No. 1468 C.D. 2022
Respondent :
ORDER
AND NOW, this 6th day of September, 2023, the Workers’
Compensation Appeal Board’s November 9, 2022 order is AFFIRMED. Stephen
Clark’s Application for Oral Argument is DENIED.
_________________________________
ANNE E. COVEY, Judge