J-A16040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GERALD COHEN                                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

MICHAEL G. DRYDEN AND WILLIG,
WILLIAMS & DAVIDSON

                            Appellees                No. 3128 EDA 2014


              Appeal from the Judgment Entered October 7, 2014
             In the Court of Common Pleas of Philadelphia County
             Civil Division at No(s): February Term, 2012, No. 336


BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED JULY 22, 2015

        Gerald Cohen appeals from the judgment entered in his favor in the

Court of Common Pleas of Philadelphia County in the amount of $100,000

pursuant to a high/low agreement entered into by the parties. Upon careful

review, we affirm.

        Cohen was an employee of the St. Mary Medical Center (“St. Mary”)

and was injured on July 10, 2005 while transporting a patient. For the first

four months following his injury, Cohen received treatment at the Triad, a

medical care facility available only to St. Mary’s employees. In November

2005, Cohen began occupational therapy with Chester Ganczarz, an

occupational therapist and employee of St. Mary. On March 2, 2006, Cohen
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A16040-15



suffered injuries to his neck and shoulder, allegedly as a result of therapy

provided by Ganczarz.

     In April 2006, Cohen hired Michael G. Dryden and his law firm, Willig,

Williams, and Davidson, to represent him in a workers’ compensation claim.

Dryden filed a claim on Cohen’s behalf, which included both the original July

2005 injury and the subsequent March 2006 treatment-related injury.       In

April 2007, Cohen and St. Mary entered into a stipulation stating that Cohen

had sustained a work-related injury on July 10, 2005 and another work-

related injury on March 2, 2006.      As a result, Cohen received workers’

compensation benefits for both injuries.    In 2008, Dryden negotiated a

compromise and release of Cohen’s workers’ compensation claim against St.

Mary, which conclusively resolved any and all outstanding claims related to

the two work-related injuries. A workers’ compensation judge approved the

release on July 25, 2008.

     During this time period, Cohen, represented by different counsel, also

filed a medical malpractice claim against St. Mary and Ganczarz for his

March 2006 injury. However, after the release was approved in the workers’

compensation claim, St. Mary and Ganczarz moved for and was granted

summary judgment.       On appeal, this Court affirmed on the grounds that,

because the workers’ compensation judge found that Cohen’s March 2, 2006

injuries were work-related, Cohen was collaterally estopped from claiming

otherwise.   In addition, this Court held that the compromise and release




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agreement released St. Mary and Ganczarz from all liability with regard to

the March 2, 2006 injuries.

      In the matter now before the Court, Cohen claims that Dryden and his

law firm committed legal malpractice in the workers’ compensation matter

that prevented him from recovering on his medical malpractice claim against

St. Mary and Ganczarz.        Prior to trial, the parties agreed to stipulated

damages, in the form of a high/low agreement, as follows:            if the Court

found against Dryden on the issues presented, Cohen would receive

damages of $500,000; if the court found in favor of Dryden on either of the

issues, it would enter a finding in favor of Cohen for $100,000.

      On September 4, 2014, the Honorable Jacqueline F. Allen held that

Cohen could not have recovered in his medical malpractice claim under the

dual capacity doctrine and awarded Cohen $100,000 pursuant to the

high/low agreement. Cohen’s post-trial motions were denied and he filed a

timely notice of appeal to this Court, as well as a court-ordered statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      On appeal, Cohen argues that he was entitled to recover on his

medical malpractice claim against St. Mary and Ganczarz under the dual

capacity doctrine for the injuries he sustained on March 2, 2006, and thus

should be awarded $500,000 in damages by agreement of the parties. Brief

of   Appellant,   at   7.   Specifically,   Cohen   claims   that   the   Workers’




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Compensation Act (“WCA”)1 provides an exclusive remedy only for injuries

sustained    in   the   course    of   employment   and   that   the   Pennsylvania

Constitution prohibits any limitations on recovery for injuries not sustained

in the course of employment.

       Cohen first claims that St. Mary was acting in a dual capacity as both

his employer and his medical provider. Cohen claims that when his alleged

medical malpractice injury was inflicted on March 2, 2006, he was not acting

within the course of his employment, but rather was being treated by St.

Mary for a job-related injury he sustained months earlier. Because he was

voluntarily receiving treatment at St. Mary, on his own time, Cohen argues

that this subsequent injury should not have been included in the workers’

compensation compromise and release agreement.               Instead, this injury

should have been compensable via a medical malpractice claim.               For the

following reasons, we disagree.

       The comprehensive system of substantive, procedural, and remedial

laws comprising the workers’ compensation system is the exclusive forum

for redress of injuries2 in any way related to the work place. Alston v. St.
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1
  77 Pa.C.S.A. §§ 1-2708.
2
  The injuries covered under the WCA are defined, in relevant part, as
follows:

       § 411. “Injury,” “personal injury,” and “injury arising in
       the course of his employment” defined

       (1)    The terms “injury” and “personal injury,” as used in this
              act, shall be construed to mean an injury to an
(Footnote Continued Next Page)


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Paul Ins. Cos., 612 A.2d 421, 424 (Pa. 1992). The exclusivity clause 3 of

the WCA bars an employee from bringing a common law cause of action

                       _______________________
(Footnote Continued)

              employe[e], regardless of his previous physical condition,
              except as provided under subsection (f), arising in the
              course of his employment and related thereto, and such
              disease or infection as naturally results from the injury or
              is aggravated, reactivated or accelerated by the injury;
              and wherever death is mentioned as a cause for
              compensation under this act, it shall mean only death
              resulting from such injury and its resultant effects, and
              occurring within three hundred weeks after the injury. The
              term “injury arising in the course of his employment,” as
              used in this article, shall not include an injury caused by an
              act of a third person intended to injure the employe[e]
              because of reasons personal to him, and not directed
              against him as an employe[e] or because of his
              employment; nor shall it include injuries sustained while
              the employe[e] is operating a motor vehicle provided by
              the employer if the employe[e] is not otherwise in the
              course of employment at the time of injury; but shall
              include all other injuries sustained while the employe[e] is
              actually engaged in the furtherance of the business or
              affairs of the employer, whether upon the employer’s
              premises or elsewhere, and shall include all injuries caused
              by the condition of the premises or by the operation of the
              employer’s business or affairs thereon, sustained by the
              employe[e], who, though not so engaged, is injured upon
              the premises occupied by or under the control of the
              employer, or upon which the employer’s business or affairs
              are being carried on, the employe[e]’s presence thereon
              being required by the nature of his employment.

77 Pa.C.S.A. § 411(1).
3
    The WCA’s exclusivity clause provides, in relevant part:

        § 481. Exclusiveness of remedy; actions by and against
        third party; contract indemnifying third party
(Footnote Continued Next Page)


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against an employer if recovery is possible under the WCA. Lord Corp. v.

Pollard, 695 A.2d 767 (Pa. 1997).

      [T]he exclusivity clause of the [WCA] reflects the historical quid
      pro quo between an employer and employee whereby the
      employer assumes liability without fault for a work-related
      injury, but is relieved of the possibility of a larger damage
      verdict in a common law action. The employee benefits from the
      expeditious payment of compensation, but forgoes recovery of
      some elements of damages. An employer’s liability and the
      liability of its compensation carrier are exclusively governed by
      the [WCA].

Alston, 612 A.2d at 424.

      In Pennsylvania, the general rule has long been that injuries sustained

during the course of treatment for work-related injuries are also classified as

work-related and are compensable under and subject to the immunity from

suit afforded to employers under the Act.         In Workmen's Comp. Appeal

Bd. v. Ira Berger & Sons, 368 A.2d 282 (Pa. 1977), the claimant suffered

a compensable work injury and entered into a compensation agreement with

his employer to receive total disability benefits. The claimant subsequently
                       _______________________
(Footnote Continued)

      (a)    The liability of an employer under this act shall be
             exclusive and in place of any and all other liability to such
             [employees], his legal representative, husband or wife,
             parents, dependents, next of kin or anyone otherwise
             entitled to damages in any action at law or otherwise on
             account of any injury or death as defined in section
             301(c)(1) and (2) or occupational disease as defined in
             section 108.

77 Pa.C.S.A. § 481(a).




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suffered total disability as a result of improper treatment by a chiropractor

for the original work-related injury.    The Workers’ Compensation Appeal

Board denied the employer’s request to terminate benefits and held that the

“continuation of the disability was a direct result of the intial [work-related]

injury.”   Id. at 283.     The Commonwealth Court reversed the Board.

However, on allowance of appeal, the Supreme Court reversed again,

holding that, “as long as the subsequent disability is a result of negligent

treatment for the initial injury, the disability is compensable under the

Workmen’s Compensation Act.” Id. at 285.

      Cohen argues that the exclusivity clause of the WCA should not bar his

malpractice action with respect to the injuries sustained during treatment

with Ganczarz because St. Mary was acting in a “dual capacity” as medical

provider, and not as his employer, at the time the injury occurred. Under

the dual capacity doctrine, an employer normally shielded from tort liability

by the WCA’s exclusive remedy provisions may become liable in tort to its

own employee if it occupies, in addition to its capacity as employer, a second

capacity that confers upon it obligations independent of those imposed upon

it as employer. Taynton v. Dersham, 516 A.2d 1241, 1245 (Pa. Super.

1986), citing Budzichowski v. Bell Telephone Co. of Pennsylvania, 469

A.2d 111 (Pa. 1983). The doctrine

      is premised on the fact that an employee retains his right to sue
      a third-party tortfeasor regardless of the existence of the
      workers’ compensation remedy.        A third-party tortfeasor’s
      relationship to an injured worker is the same as that between
      any two parties to a common law suit. Thus[,] an employer who

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       causes injury to an employee through acts taken in a capacity
       outside the employment relationship is likened to a third party.
       The dual capacity doctrine does not abrogate the exclusivity
       provision. Instead, the doctrine construes the employer in his
       second capacity to be “someone other than the employer” for
       the purposes of the act. The duty of care owed by the employer
       in his second capacity is viewed as a duty external to the
       employer-employee relationship.       The purpose of workers’
       compensation is to compensate only for losses resulting from
       risks which are inherent in the employment. When, however,
       the risks arise from a separate and distinct relationship, such as
       manufacturer-consumer, the employer-employee relationship
       becomes coincidental.       Under this theory, for example, an
       employer who is not subject to suit for negligence in his role as
       an employer may be liable for injuries arising from a separate
       and distinct relationship, such as manufacturer-consumer.

Id. (citation omitted).

       Although Pennsylvania courts have discussed the dual capacity

doctrine on numerous occasions, the Commonwealth has never explicitly

adopted it.4     Cohen relies on our Supreme Court’s decision in Tatrai v.

Presbyterian Univ. Hosp., 439 A.2d 1162 (Pa. 1982).                  There, the

appellant was employed as an operating room technician by appellee,

Presbyterian University Hospital.          On May 27, 1975, during work hours,


____________________________________________


4
  There is some confusion as to whether the Supreme Court has adopted the
dual capacity doctrine. In Soto v. Nabisco, Inc., 32 A.3d 787 (Pa. Super.
2011), this Court stated that “[t]he Pennsylvania Supreme Court has applied
the ‘dual capacity’ doctrine in only one case,” that being Tatrai v.
Presbyterian Univ. Hosp., 439 A.2d 1162 (Pa. 1982). However, the
Supreme Court itself appears to be unsure whether the doctrine was actually
adopted by the Tatrai Court. See Budzichowski v. Bell Telephone Co.
of Pa., 469 A.2d 111 (Pa. 1983) (“Assuming, arguendo, that Tatrai does
adopt the ‘dual capacity’ doctrine and that it is applicable to this case . . .”).
The Tatrai decision does not mention the doctrine by name.



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Tatrai became ill and was told by her supervisor to go to the hospital’s

emergency room to seek treatment. While there, Tatrai was placed on an x-

ray table. While the table was being rotated to an upright position, the foot

stand either became loose or broke away, causing Tatrai to fall and sustain

injuries.   Tatrai subsequently commenced an action against the hospital,

alleging negligence and a breach of warranty of the safety of the hospital’s

equipment and services. The trial court, finding that the medical treatment

was provided to Tatrai as an employee in the normal course of her

employment, entered a verdict for the hospital based on the exclusivity

clause of the WCA. This Court affirmed.

      On allowance of appeal, the Supreme Court reversed. In doing so, the

Court concluded that the onset of Tatrai’s illness was “an event totally

extraneous to the employment scheme” and that “the purpose of going to

the emergency room was to ameliorate the disability, not to continue the

performance of the employer’s affairs.” Id. at 1165. In light of that, the

Court concluded that the injury       did not “aris[e] in the course of

employment” as defined under the WCA.        Moreover, the Court found that

Tatrai’s presence on the hospital’s premises at the time of her injury was not

“required under the terms of [her] employment,” nor did it “facilitate[] the

orderly and expeditious disposition of the employer’s affairs.” Id. Rather,

the concern was Tatrai’s health and her presence upon the premises at the

time of injury was “only a fortuitous circumstance.” Id. at 1166. As such,

there was

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      no reason to distinguish [Tatrai] from any other member of the
      public injured during the course of treatment. The risk of injury
      which [Tatrai] suffered was a risk to which any member of the
      general public receiving like treatment would have been
      subjected. The occurrence of the injury was not made more
      likely by the fact of her employment.

Id.

      The case at bar is clearly distinguishable from Tatrai.     Here, unlike

Tatrai, Cohen suffered a compensable work injury during the course of his

employment by St. Mary. The only treatment sought by Cohen was for the

work-related injury, which was not present before the initial accident. But

for the work-related injury, Cohen would not have sought treatment from

Ganczarz, and would not have suffered the second, treatment-related injury.

Accordingly, the second injury is derivative of the initial work-related injury

and the exclusivity provision of the WCA is a bar to legal action by Cohen.

Pollard, supra; Ira Berger, supra.

      Cohen next claims that the trial court’s ruling was unconstitutional

because Article III, Section 18 of the Pennsylvania Constitution prohibits any

limitations on recovery for injuries not sustained in the course of

employment.    Cohen argues that, because his subsequent March 2, 2006

injury did not arise in the course of his employment, “[h]is remedy for that

malpractice cannot be constitutionally restricted.” Brief of Appellant, at 15.

      Pursuant to Pa.R.C.P. 227.1, grounds for post-trial relief must be set

forth in a post-trial motion. If not, those grounds are waived. Pa.R.C.P.

227.1; Empire Trucking Co. v. Reading Anthracite Coal Co., 71 A.3d

923 (Pa. Super. 2013). This waiver rule applies even if the issue raised for

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the first time on appeal is a constitutional question. Coulter v. Ramsden,

94 A.3d 1080, 1090 (Pa. Super. 2014).        Here, Cohen failed to raise this

issue before trial, during trial, or in his post-trial motion. Accordingly, the

issue is waived on appeal.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2015




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