Pocono Mountain SD v. J. Kojeszewski (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pocono Mountain School District, :
Petitioner :
:
v. :
:
Jeffrey Kojeszewski (Workers’ :
Compensation Appeal Board), : No. 1002 C.D. 2021
Respondent : Submitted: February 4, 2022
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: April 21, 2022
Before the Court is a petition (Petition for Review) by Pocono
Mountain School District (Employer) seeking review of the August 18, 2021 order
of the Workers’ Compensation Appeal Board (Board). The Board affirmed the
decision of Workers’ Compensation Judge Alan Harris (WCJ Harris) granting
review and reinstatement petitions filed by Jeffrey Kojeszewski (Claimant) and
denying Employer’s termination petition. For the reasons set forth below, the
Board’s order is affirmed.
I. Background
Claimant sustained a work-related injury on July 5, 2016, when he
slipped and fell while applying polyurethane to a gymnasium floor. Reproduced
Record (RR) at 263a. By decision dated January 2, 2018 (WCJ Pletcher Decision),
Workers’ Compensation Judge Eric Pletcher (WCJ Pletcher) granted Claimant’s
claim petition and recognized work-related injuries in the nature of a “left wrist and
elbow strain and sprain and contusion, bruising of the left wrist, and left post[-
]traumatic carpal tunnel syndrome.” Id. WCJ Pletcher also suspended Claimant’s
benefits as of August 29, 2016, when Claimant returned to his pre-injury position
with no loss of wages. Id.
In June 2019, Claimant filed a review petition seeking to add left
brachial plexopathy to the description of his injuries, as well as a reinstatement
petition seeking wage loss benefits as of June 26, 2018. RR at 263a. On September
25, 2019, Employer filed a termination petition alleging that Claimant had fully
recovered from his work injuries as of September 12, 2019. Id. The matters were
assigned to WCJ Harris for disposition.
Claimant testified before WCJ Harris in July 2019, describing his
original work injury and how he landed on his left arm and shoulder when he fell to
the floor. RR at 263a. Claimant testified that following this accident, he experienced
pain radiating from his shoulder down into his hand and that such symptoms have
remained unchanged since the date of the injury. Id. Claimant averred that he was
still experiencing radiating pain from the left side of his neck and down his left arm,
with frequent numbness in the outer aspect of his left hand and arm, for which he is
treating with Dr. Jay Talsania (Dr. Talsania). Id. Following six weeks of physical
therapy, Dr. Talsania prescribed Claimant medical marijuana to help ease his pain
and provide relaxation so that he can sleep at night. Id. Claimant indicated that he
continued working for Employer after the work injury. Id.
2
Claimant stated that during the school year, he works as a non-teaching
assistant for Employer, assisting teachers with the supervision of students, and that
he has no restrictions while performing this job. RR at 263a. He indicated that he
was able to work the custodian position over the summer of 2018, but not the
summer of 2019, because the position required that he be able to lift 100 pounds and
Dr. Talsania has since imposed a restriction of no lifting over 20 pounds with his left
arm. Id. Claimant testified that he was out of work as of June 13, 2019. Id. On
cross-examination, Claimant acknowledged that his updated 2019 restrictions
related to his alleged left brachial problem and that his treatment since June of 2018
has been related to that problem. Id. at 264a. Claimant returned to his non-teaching
position during the 2018-2019 school year. Id.
During testimony at a hearing in January 2020, Claimant testified that
he returned to work for Employer as a custodian on July 18, 2019, but with
restrictions. RR at 264a. Claimant stated that he continued to treat with Dr. Talsania
every six months. Id. Claimant acknowledged that for many years prior to his work
injuries, he suffered from, and was treated for, psoriatic arthritis, which included
pain in his neck and lower back. Id. Claimant also confirmed that such pain
increased in late 2018 and early 2019. Id.
Following this testimony, Claimant and Employer entered into a
stipulation of fact as to Claimant’s earnings during the relevant periods of the
litigation, which indicated that Claimant received four weeks of disability benefits
from June 17 through July 14, 2019, that Claimant returned to work thereafter, and
that Claimant would not be entitled to disability benefits for the 2018-2019 and
2019-2020 school years. RR at 264a.
3
Claimant submitted the deposition testimony of Dr. Talsania, a board-
certified orthopedic surgeon with additional certification in hand surgery, who first
saw Claimant in May of 2018. RR at 264a. Dr. Talsania testified that his
examination revealed a positive test for left brachial plexus irritation and a mild
subluxation of the ulnar nerve on the left, which were confirmed by a subsequent
nerve test. Id. Dr. Talsania restricted Claimant from any overhead work and from
lifting more than 20 pounds. Id. at 265a. Dr. Talsania later recommended H-wave
therapy1 and medical marijuana to help ease Claimant’s pain. Id. He noted that
Claimant’s complaints of left arm pain and numbness remained consistent
throughout his treatment. Id. He opined that Claimant suffered from left brachial
plexopathy, for which he noted a delay in diagnosis was not uncommon, left ulnar
neuritis, a capitate contusion, and resolved left wrist sprain and elbow pain. Id. Dr.
Talsania related these diagnoses to Claimant’s fall on July 5, 2016. Id. Dr. Talsania
disagreed with the findings of Dr. Richard Mandel (Dr. Mandel), who performed an
independent medical examination (IME) of Claimant at the request of Employer and
noted no brachial plexus injury. Id.
Employer presented the deposition testimony of Dr. Mandel, who
performed an IME of Claimant on September 12, 2019. RR at 265a. Dr. Mandel
testified that certain tests conducted during his examination of Claimant were
positive for a possible brachial plexus problem, but that the diagnosis could not be
confirmed because Claimant’s responses related to subjective tests. Id. Dr. Mandel
opined that Claimant had fully recovered from his left wrist and elbow strain and
sprain, the bruise of the left wrist, and post-traumatic left carpal tunnel syndrome,
1
“H-Wave is a multi-functional electrical stimulation device intended to speed recovery,
restore function, and manage chronic, acute or post-operative pain.” What Is H-Wave®? Available
online at https://www.h-wave.com/ (last visited Apr. 20, 2022).
4
and that Claimant did not sustain a left brachial plexus injury as a result of the fall
at work. Id. at 265a-66a. Dr. Mandel opined that, at most, Claimant sustained ulnar
nerve irritation as a result of the fall, for which he imposed restrictions. Id. at 266a.
On cross-examination, Dr. Mandel agreed that Claimant showed no gross signs of
symptom magnification, that there were clinical findings consistent with bilateral
subluxation of the ulnar nerves resulting in ulnar nerve irritation, and that the same
was related to Claimant’s work injury. Id.
WCJ Harris ultimately granted Claimant’s review and reinstatement
petitions and denied Employer’s termination petition. WCJ Harris accepted the
testimony of Claimant as credible and found Dr. Talsania to be more credible than
Dr. Mandel, noting that their physical findings on examination were similar. RR at
266a. WCJ Harris further found that Claimant’s work injuries should be amended
to include left brachial plexopathy and left ulnar neuritis, and that Claimant has never
at any time been fully recovered from his work injuries. Id. WCJ Harris approved
the stipulation of the parties, which reflected Claimant’s different periods of wage
loss resulting from his work injuries, and found the amount of such wage loss
described therein to be payable to Claimant. Id. Finally, WCJ Harris awarded
Claimant litigation costs in the amount of $5,547.49. Id.
Employer appealed to the Board, which affirmed the decision and order
of WCJ Harris. The Board rejected an argument from Employer that any finding of
a left ulnar nerve injury was barred by res judicata or collateral estoppel because
WCJ Pletcher had rejected the opinion of Dr. Randall Culp (Dr. Culp) that
Claimant’s symptoms were the result of an injury to Claimant’s left ulnar nerve.2
RR at 285a. As the Board explained, Dr. Culp opined that Claimant had a subluxable
2
It appears that Dr. Culp performed an IME of Claimant on April 13, 2017 and testified
on behalf of Employer before WCJ Pletcher. RR at 251a-52a.
5
ulnar nerve3 at both elbows, which was a congenital problem; Dr. Culp did not opine
as to a work-related ulnar nerve condition. Id. at 286a. Therefore, the Board
concluded that the ulnar nerve issue was not litigated previously or essential to the
original decision, so res judicata and collateral estoppel did not apply. Id.
The Board also rejected Employer’s argument that Claimant’s
description of his fall at work was contrary to his previous testimony before WCJ
Pletcher, noting that WCJ Harris was aware of the prior decision and that Employer
was essentially attempting to challenge WCJ Harris’s credibility determination with
respect to Claimant’s testimony. RR at 286a. Further, the Board rejected Employer’s
argument that WCJ Harris erred in failing to grant its termination petition. Id. In
this regard, the Board rejected Employer’s premise that the addition of left brachial
plexopathy and left ulnar neuritis was in error. Id. Finally, because Claimant was
successful before WCJ Harris and the Board affirmed that decision, the Board
rejected Employer’s argument that WCJ Harris erred in awarding litigation costs.
Id. at 287a.
Employer then filed its Petition for Review with this Court.4
3
Ulnar nerve subluxation is a condition where the ulnar nerve slides
back and forth from its normal position behind the medial
epicondyle (the bony prominence on the inside of the elbow) to in
front of it. Snapping of the nerve with motion of the arm is
uncomfortable along the inside of the elbow and forearm. It often
causes numbness and tingling that radiates into the fourth and fifth
fingers. . . .
Dr. David Geier, Ulnar Nerve Subluxation, https://www.drdavidgeier.com/ask-dr-geier-ulnar-nerve-
subluxation/#:~:text=Ulnar%20nerve%20subluxation%20is%20a%20condition%20where%20th
e,along%20the%20inside%20of%20the%20elbow%20and%20forearm (last visited Apr. 20, 2022).
4
Our scope of review in a workers’ compensation appeal is 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. City of Scranton v. Workers’ Comp.
Appeal Bd. (Roche), 909 A.2d 485 (Pa. Cmwlth. 2006).
6
II. Issues
In its Petition for Review, Employer argues that the Board erred in
affirming the decision and order of WCJ Harris granting Claimant’s review and
reinstatement petitions, because the opinion of Dr. Talsania was contrary to facts
previously found by WCJ Pletcher. Petition for Review ¶ 9(a). Employer also
asserts that the Board erred in affirming the decision and order of WCJ Harris
denying its termination petition with respect to the work-related injuries for which
benefits were previously awarded, because the medical evidence established that
Claimant was fully recovered from those injuries. Id., ¶ 9(b). Employer further
contends that because the Board erred as set forth above, Claimant was not entitled
to litigation costs. Id., ¶9(c).
III. Discussion
A. Res Judicata and Collateral Estoppel
In its first argument, Employer challenges the testimony of Dr. Talsania
that Claimant’s work accident caused left ulnar neuritis, which WCJ Harris
specifically found to be credible and which, together with the credible testimony of
Claimant, supported the grant of Claimant’s review and reinstatement petitions.
Employer points to a finding of fact by WCJ Harris that “[WCJ] Pletcher specifically
rejected the opinion of Dr. [] Culp that Claimant’s symptoms were due to an injury
to the left ulnar nerve . . . .” RR at 263a. Employer contends WCJ Harris could not
credit evidence that directly contradicted a previous finding of fact by WCJ Pletcher.
The Board addressed and rejected Employer’s argument that the
testimony of Dr. Talsania was contrary to facts previously found by WCJ Pletcher.
The Board explained:
7
[Employer] contends that although both Dr. Talsania and
Dr. Mandel opined that Claimant sustained a work-related
left ulnar nerve injury when he fell in July 2016,
Claimant’s [r]eview [p]etition to add a left ulnar nerve
injury is barred because WCJ Pletcher rejected Dr. Culp’s
opinion that Claimant’s symptoms were the result of an
injury to his left ulnar nerve. The doctrines of res judicata
and collateral estoppel foreclose relitigation of an issue of
fact or law which was litigated and necessary to the
original judgment . . . . According to WCJ[] Pletcher’s
Decision, what Dr. Culp opined that was that Claimant had
a subluxable ulnar nerve at both elbows which was a
congenital problem. He did not, from our review of WCJ
Pletcher’s Decision, opine as to a work-related ulnar nerve
condition. Further, WCJ Pletcher specifically rejected
[Dr. Culp’s] testimony that Claimant sustained only a
work-related wrist contusion and contusion of the elbow
and had fully recovered. There is no indication that the
issue litigated here was litigated previously and essential
to the original judgement or was, as [Employer] contends,
contrary to WCJ[] Pletcher’s determination.
RR at 285a-86a (citing Weney v. Workers’ Comp. Appeal Bd. (Mac Sprinkler Sys.,
Inc.), 960 A.2d 949, 953-55 (Pa. Cmwlth. 2008); Henion v. Workers’ Comp. Appeal
Bd. (Firpo & Sons, Inc.), 776 A.2d 362, 365-67 (Pa. Cmwlth. 2001)). We agree.
Previously, in the litigation of the claim petition before WCJ Pletcher,
Claimant’s treating physician, Dr. William Prebola (Dr. Prebola), testified that
Claimant’s 2016 work injuries included “left wrist and elbow sprain/strain
contusion, bruising of the left wrist and post-traumatic carpal tunnel syndrome.” RR
at 251a. Employer’s medical expert, Dr. Culp, agreed that Claimant sustained a
work-related wrist contusion or a sprain and strain and contusion of the elbow. Id.at 252a. Dr. Culp further opined that Claimant was suffering from a subluxable ulnar
nerve in both elbows which was congenital. Id. at 251a-52a. WCJ Pletcher found
8
Dr. Culp’s testimony not credible and rejected it to the extent that it was inconsistent
with Dr. Prebola’s testimony. Id. at 253a.
Subsequently, in connection with Claimant’s review petition, his
treating physician, Dr. Talsania, testified that he diagnosed Claimant’s medical
conditions as including mild ulnar nerve subluxation and left ulnar neuritis, both of
which he connected with Claimant’s fall in 2016. RR at 264a-65a. Employer’s
medical expert, Dr. Mandel, opined that Claimant suffered from an ulnar nerve
irritation. RR at 265a.
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). Here, there was not an identity of issues
between the claim and review petitions. In the claim petition, Claimant alleged
different injuries from those he sought to add by means of the review petition filed
in light of subsequent medical developments. Therefore, res judicata does not apply.
Collateral estoppel bars re-litigation of an issue decided in a prior
action. Coatesville Area Sch. Dist., 244 A.3d 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. Here, ulnar nerve subluxation was not raised as an issue in the
9
claim petition. Accordingly, it cannot be said that Claimant had a full and fair
opportunity to litigate that issue, and similarly, it was not essential to the judgment.
Therefore, collateral estoppel is inapplicable.
B. Claimant’s Recovery from Previously Recognized Injuries
As Employer correctly observes, the uncontradicted evidence indicated
that Claimant had fully recovered from the injuries recognized in the WCJ Pletcher
Decision. Employer asserts that in light of that recovery, WCJ Harris erred in
denying the termination petition. We disagree. As discussed in the previous section,
this Court concludes that the Board properly affirmed WCJ Harris’s determination
adding left brachial plexopathy to Claimant’s description of his work-related injuries
and finding that Claimant continues to be disabled from those injuries.
A partial grant of a termination petition is improper, as a termination
requires that all disability has ceased. See Mitoulis v. Workers’ Comp. Appeal Bd.
(Sunrise Senior Living Mgmt., Inc.) (Pa. Cmwlth., No. 991 C.D. 2018, filed Apr. 27,
2020)5 (citing Lewis v. Workers’ Comp. Appeal Bd. (Giles & Ransome, Inc.), 919
A.2d 922, 926 (Pa. 2007); Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.),
753 A.2d 293, 297 (Pa. Cmwlth. 2000)). Accordingly, in light of Claimant’s
ongoing disability relating to left brachial plexopathy, this Court affirms the denial
of Employer’s termination petition based on Claimant’s purported recovery from his
previously recognized injuries.
5
Section 414(a) of this Court’s Internal Operating Procedures provides that an unreported
panel decision issued after January 15, 2008, may be cited for its persuasive value, but not as
binding precedent. 210 Pa. Code § 69.414(a).
10
C. Award of Costs
Finally, Employer asserts that because the Board erred in granting the
review petition and in denying Employer’s termination petition, there was no basis
for an award of litigation costs against Employer. This argument lacks merit.
A workers’ compensation claimant who succeeds “in whole or in part”
in a contested case is entitled to an award of reasonable litigation costs pursuant to
Section 440(a) of the Workers’ Compensation Act.6 77 P.S. § 996(a).
Because we affirm the Board’s conclusions on the merits, we discern
no error in the award of costs.
IV. Conclusion
Based on the foregoing discussion, the order of the Board is affirmed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
6
Act of June 2, 1915, P.L. 736, as amended, added by the Act of February 8, 1972, P.L.
25, 77 P.S. §§ 1-1041.4, 2501-2710.
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pocono Mountain School District, :
Petitioner :
:
v. :
:
Jeffrey Kojeszewski (Workers’ :
Compensation Appeal Board), : No. 1002 C.D. 2021
Respondent :
ORDER
AND NOW, this 21st day of April, 2022, the August 18, 2021 order of
the Workers’ Compensation Appeal Board is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge