                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John Bailey,                               :
                     Petitioner            :
                                           :   No. 1442 C.D. 2015
               v.                          :
                                           :   Submitted: November 25, 2015
Workers’ Compensation Appeal               :
Board (Commonwealth of PA/                 :
SCI Camp Hill),                            :
                Respondent                 :


BEFORE:        HONORABLE DAN PELLEGRINI, President Judge1
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                         FILED: April 27, 2016


               John Bailey (Claimant) petitions for review of the July 14, 2015 order of
the Workers’ Compensation Appeal Board (Board), which affirmed a Workers’
Compensation Judge’s (WCJ) decision denying Claimant’s petition for reinstatement
of compensation benefits for failing to meet his burden to prove that he was disabled
due to a work-related injury.


                             Facts and Procedural History
               The underlying facts are undisputed and may be summarized as follows.
Claimant worked as a Captain for the Department of Corrections (DOC) and was

      1
         This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.
issued a notice of compensation payable (NCP) dated September 12, 2008,
recognizing a right-knee injury that occurred on March 24, 2007, during his
employment with the Commonwealth of Pennsylvania, State Correctional Institution
at Camp Hill (Employer). Claimant was diagnosed with a knee sprain and allowed to
return to work with restrictions; however, in April 2007, Claimant underwent an MRI
that revealed a meniscus tear and, subsequently, surgery was performed to repair his
meniscus. Claimant returned to full-duty employment but subsequently suffered
additional injuries, the cause of which is disputed, and underwent a total knee
replacement in January 2010.
                On March 4, 2010, Claimant filed a petition to reinstate compensation
benefits seeking to reinstate benefits for the 2007 work injury. Employer filed an
answer, denying the material allegations of Claimant’s petition. On April 18, 2010,
Employer executed an agreement with Claimant (Supplemental Agreement), which
described Claimant’s injury as a right-knee sprain and provided that:

                Claimant[’]s disability recurred 1/14/2010. Accordingly,
                TTD[2] is reinstated from 1/14/2010 to 4/17/2010. All
                causally related medical treatment regarding claimant[’]s
                total knee replacement surgery will be paid. Claimant
                returned to work with no loss in earnings 4/18/2010.
                Benefits are suspended effective 4/18/2010.
(Reproduced Record (R.R.) at 48a.) By order dated July 28, 2010, a WCJ dismissed
Claimant’s petition to reinstate benefits as moot because of the Supplemental
Agreement.
                Claimant returned to full-duty employment following his knee
replacement; however, he began experiencing additional problems with his right knee


      2
          TTD indicates temporary total disability.



                                                  2
in November 2010 and was admitted to the hospital with a knee infection. Claimant
underwent arthroscopic surgery, wherein a surgeon removed components that had
been inserted into Claimant’s knee when it was replaced, cleaned them, and cleaned
the knee joint itself. Claimant retired from the DOC in February 2011 because of
problems he was having with his knee, but was hired for full-time employment as a
security officer with Allied Barton Security (Allied) in April 2012 with no work
restrictions.
                In April 2013, Claimant was diagnosed with another infection and
underwent arthroscopic surgery to clean the parts that had been inserted into his knee
when it was replaced. Claimant subsequently returned to full-time employment.
                On July 16, 2013, Claimant filed a second petition to reinstate
compensation benefits, alleging a worsening of condition. Employer filed an answer,
denying that Claimant’s condition as it related to his work injury had worsened. The
matter was assigned to a WCJ, who conducted hearings.
                 Claimant testified that he worked for Employer as a Corrections Officer
Captain and suffered a work-related injury to his right knee on March 24, 2007.
Claimant stated that, as a result of the work-related injury, his right knee was replaced
in January 2010. Claimant testified that he felt improvement and returned to full-duty
work after his knee replacement; however, he began experiencing additional
problems with his right knee in November 2010. Claimant explained that he was at
work when his knee began to swell, became very tight, and he had extreme difficulty
walking. (R.R. at 135a-36a, 151a.)
                Claimant further testified that he contacted and sought treatment from
John Grandrimo, D.O., the surgeon who performed his knee replacement. Claimant
stated that he was admitted to the hospital for a knee infection and underwent



                                            3
arthroscopy surgery in November 2010; specifically, Claimant explained that Dr.
Grandrimo removed parts that had been inserted into his knee when it was replaced,
cleaned them, and cleaned the knee joint itself. (R.R. at 137a-38a.)
                Claimant testified that he retired from the DOC in February 2011
because of problems he was having with his knee. Claimant stated that he did not
seek disability retirement nor did any of his doctors advise him to retire. Rather,
Claimant explained that he had financial problems, that his leave was exhausted, and
that the only way he could support his family was to retire. Claimant noted that Dr.
Grandrimo had released Claimant from his care and cleared him to return to work in
May 2011. Claimant testified that he was hired for full-time employment as a
Security Officer with Allied in April 2012 and noted that he was not placed on any
work restrictions related to his right knee. (R.R. at 138a, 141a, 154a-57a.)
               Claimant further testified that, in October 2012, he began experiencing
discomfort similar to that he experienced in November 2010; specifically, Claimant
stated that he suffered from swelling and severe pain in his knee. Claimant noted that
he was taking Ibuprofen and icing his knee regularly to deal with the pain. However,
in April 2013, Claimant sought treatment from Dr. Grandrimo because he was having
extreme difficulty walking. Claimant was again diagnosed with an infection and Dr.
Grandrimo performed another surgery on Claimant’s knee to clean the parts that had
been inserted when his knee was replaced. Claimant testified that he returned to full-
time work after approximately eighty-four days because he received notice from
Allied that he had exhausted all of his leave under the Family and Medical Leave
Act3 and would be terminated if he did not return to work. (R.R. at 141a-43a, 156a,
159a-60a.)

      3
          29 U.S.C. §§ 2601-2654.



                                           4
             Claimant explained that he was transferred to another company, G4
Securities (G4S), when it purchased Allied, but noted that he performed the same
duties; specifically, Claimant stated that he patrolled the interior of buildings,
checked doors, and performed metal detector observation. Claimant testified that he
was also hired to work part time at the York County Prison.             Claimant further
testified that he currently works part time for York County Prison, passed a physical
before he was hired, and is on the full-time list; that is, if a full-time position becomes
available he may be considered for the position. Claimant explained that he makes
rounds at the prison and is responsible for the care, custody, and control of inmates.
Claimant testified that he could perform the full-time job if it was offered, but
acknowledged that he still experiences some soreness and stiffness in his knee.
Claimant stated that he receives approximately $3,600.00 per month in retirement
benefits and, aside from the workers’ compensation benefits he received after the
initial work injury, he does not receive any type of public assistance. (R.R. at 143a-
45a, 155a-59a.)
             Claimant further testified that he last saw Dr. Grandrimo in December
2014, that he is prescribed an anti-inflammatory medication to take as needed, and
that he takes Ibuprofen for his knee pain. Claimant confirmed that he suffers from
diabetes and takes medication to treat that condition, and also stated that he is
prescribed medication for high-blood pressure and acid reflux.                   Claimant
acknowledged that he was involved in a motor vehicle accident while riding a bus in
2008. Specifically, Claimant stated that he suffered an impact injury to his right
knee, that he hurt his back, fractured a rib, experienced soreness in his shoulders, and
that his arms were covered with abrasions and bruises. (R.R. at 145a-49a, 160a-61a.)




                                            5
             Dr. Grandrimo, a board-certified orthopedic surgeon, testified that
Claimant suffered a right-knee injury in March 2007, when his knee twisted and he
felt a pop and a sharp pain. Dr. Grandrimo said that he performed surgery on
Claimant’s right knee to repair a tear of the medial meniscus in April 2007. Dr.
Grandrimo further testified that Claimant does not require any medical treatment for
his 2007 work injury and confirmed that Claimant is currently cleared to work
without restriction; however, Dr. Grandrimo could not confirm whether Claimant had
fully recovered from his 2007 work injury because Claimant had received injections
for arthritis in his knee. (R.R. at 96a-97a.)
             Dr. Grandrimo stated that Claimant had been involved in a bus accident
in May 2008 where he was thrown from his seat when the bus overturned, thrown
into the air a second time when the bus rolled onto its side, and landed against the
windows before several children landed on top of him. Dr. Grandrimo testified that
Claimant reported right-knee pain after the accident and that an MRI indicated that
Claimant suffered a meniscus tear in his right knee. He stated that he believed the
meniscus tear was new and not a recurrent tear from the previous injury, but noted
that the auto accident could have aggravated the previous condition of Claimant’s
right knee. (R.R. at 97a-100a.)
             Dr. Grandrimo further testified that he performed Claimant’s knee
replacement surgery in January 2010 because of arthritic issues and noted that
Claimant had suffered complications from the surgery. Specifically, Dr. Grandrimo
stated that he discovered that Claimant had developed an infection in his right knee
and had to undergo a “knee washout,” a procedure where an incision is made into the
joint, an antibiotic solution is used to clear out the infection, and the joint is drained.
Dr. Grandrimo explained that Claimant’s infection was a hematogenous infection



                                            6
which occurs when the body reacts to a hematoma or blood clot that develops after
surgery as a foreign agent. Dr. Grandrimo further explained that a hematogenous
infection is something that occurs in individuals who have total joint replacements.
He noted that a hematogenous infection is rare, but acknowledged that it happens.
Dr. Grandrimo opined that Claimant’s knee infection was a result of his knee
replacement. Dr. Grandrimo also noted that Claimant’s diabetes makes him more
prone to infections, especially in the lower extremities. (R.R. at 87a-90a, 100a, 113a-
15a.)
            Dr. Grandrimo testified that he treated Claimant in April 2013 for
another infection in his right knee, performed the same “knee washout” procedure,
and cleared Claimant to return to full-duty work in June 2013. He acknowledged that
Claimant currently has no working restrictions nor does he require any additional
medical treatment for the knee replacement, but would not opine whether Claimant
had fully recovered from his knee replacement because “there’s always a chance that
something can happen.” (R.R. at 91a-95a.)
             Dr. Grandrimo acknowledged that he had never treated Claimant prior
to the 2007 work injury, nor did he review any of Claimant’s prior medical records.
He conceded that his understanding of Claimant’s condition was based upon his
physical examination and Claimant’s subjective history. After reviewing the relevant
records, Dr. Grandrimo confirmed that Claimant had suffered an injury to his right
knee in 1990, that he had had four arthroscopies done, and that he had complained of
right knee pain in June 1997. Dr. Grandrimo acknowledged that Claimant continued
to complain of right knee pain, that he reported an accident where he fell down the
steps at home, that a fifth knee surgery was performed, and that the postoperative
diagnosis was Grade 3 chondromalacia.              Dr. Grandrimo explained that



                                          7
chondromalacia results when damage or a change to the cartilage occurs and noted
that that change is graded on a scale; Grade 1 is mild and Grade 4 is severe. (R.R. at
101a-106a.)
              Dr. Grandrimo conceded that Claimant had problems with his right knee
before the 2007 work injury; but, he testified that he believed the work injury
exacerbated those problems. However, Dr. Grandrimo noted that it is also possible
that the bus injury could have aggravated Claimant’s condition.        Dr. Grandrimo
testified that both infections that Claimant developed were related to the 2010 knee
replacement surgery and were not related to the 2007 work injury, but could have
been an indirect result of the 2007 work injury. (R.R. at 106a-07a.)
              Lawrence Pollack, D.O., a board-certified orthopedic surgeon, testified
that he performed an independent medical examination (IME) of Claimant on
November 19, 2013. Dr. Pollack stated that he reviewed Claimant’s medical records
and that he combined that information with the information Claimant provided to
develop an overall claim history. According to Dr. Pollack, Claimant injured his
right knee in February 1990 when he slipped and fell down stairs while he was
working as a corrections officer. He testified that Claimant was initially treated with
an immobilizer and medication but continued to be symptomatic.             Ultimately,
Claimant had to undergo an arthroscopy of his right knee in January 1993, but
returned to regular-duty work thereafter. Dr. Pollack further testified that surgery
was recommended after Claimant complained of pain when he slipped on black ice
and suffered another right-knee injury in December 1995. Dr. Pollack confirmed that
Claimant underwent an arthroscopy with osteochondral grafting on his right knee in
July 1997, that he was cleared to return to work in a limited capacity in February
1998, and cleared to return without restrictions in April 1998. Dr. Pollack noted that



                                          8
Claimant also sought treatment in June 2001 for injuries he sustained to both of his
knees when he fell out of a chair. (R.R. at 175a-179a.)
               Dr. Pollack confirmed that Claimant had suffered a work injury in
March 2007 when he stepped on a landing, pivoted, and felt a popping sensation in
his right knee. Dr. Pollack stated that Claimant was originally diagnosed with a knee
sprain and allowed to return to work with restrictions. He testified that Claimant
underwent an MRI of his right knee in April 2007 which revealed evidence of
osteochondritis dissecans, three-compartment degenerative arthritis, and a medial
meniscus tear. Dr. Pollack further testified that Claimant underwent x-rays which
revealed degenerative arthritis of his right knee and an arthroscopy was
recommended and performed. Dr. Pollack noted that Claimant was allowed to return
to work in June 2007, but stated that Claimant experienced arthritic symptoms in his
knee and noted that injections were recommended. Additionally, Dr. Pollack stated
that Claimant complained of knee pain in September 2007. He also noted that
Claimant fell on black ice and injured both of his knees and lower back in December
2007, was diagnosed with a knee strain and lumbar strain, and was advised to
undergo another MRI of his knee. The MRI revealed evidence of three-compartment
degenerative     arthritis,   osteochondral   defects,   chondromalacia   patella,   and
degenerative changes of his meniscus. (R.R. at 180a-82a.)
               Dr. Pollack testified that he also performed an IME of Claimant in May
2008, and that Claimant complained of right-knee pain that was similar to pain he had
experienced prior to his 2007 work injury. Dr. Pollack stated that Claimant advised
him that he had been symptomatic since 1990, continued to have ongoing chronic
pain in his right knee, and that he had undergone treatment. Dr. Pollack opined that,
at that time, Claimant was fully recovered from his 2007 work injury. (R.R. at 183a.)



                                              9
            Dr. Pollack further testified that Claimant had been in a bus accident in
May 2008 and noted that Claimant was airlifted to the hospital due to his injuries.
Dr. Pollack stated that, prior to the bus accident, Claimant was not receiving any
treatment for his right knee and testified that Claimant’s right knee appeared to be
improving before the accident occurred. However, after the bus accident, Dr. Pollack
testified that Claimant reported immediate pain, had difficulty walking, and that
Claimant’s knee pain had worsened. He further testified that Claimant underwent
another MRI on his right knee that revealed evidence of extensive degenerative
changes, mild bone bruising, and a medial meniscal tear. Dr. Pollack stated that
Claimant underwent an arthroscopy on his right knee on November 20, 2008. He
explained that Claimant performed physical therapy and returned to work without
restrictions on January 12, 2009. However, Dr. Pollack noted that Claimant was
advised to undergo a series of injections for the degenerative arthritis in his knees.
(R.R. at 184a-87a.)
            Dr. Pollack stated that Dr. Grandrimo re-evaluated Claimant on
November 4, 2009, because Claimant continued to complain of right-knee pain. At
the time of the examination, Dr. Grandrimo recommended a total right-knee
arthroplasty and, on January 14, 2010, the total knee replacement was performed. Dr.
Pollack confirmed that Claimant was cleared to return to his regular-duty job, but
noted that he experienced continued problems and was diagnosed with a right-knee
infection on November 11, 2010.     Dr. Pollack noted that there was no evidence of
any new injury or trauma to the knee, that Claimant was treated by the infectious




                                         10
disease department, and that Claimant did undergo another procedure4 on his right
knee and was subsequently prescribed antibiotics. (R.R. at 188a-89a.)
               Dr. Pollack confirmed that Claimant retired from DOC in February 2011
and, after his retirement, worked for a security company for approximately eighteen
months. He noted that Claimant experienced increasing pain in his right knee, that
Dr. Grandrimo performed a second irrigation and debridement of the right knee with
a polyethylene exchange, and that Claimant was again prescribed antibiotics. Dr.
Pollack testified that Dr. Grandrimo cleared Claimant to return to work as a security
guard in June 2013 and confirmed that Claimant started working full time at York
County Prison in October 2013. (R.R. at 190a-91a.)
               Dr. Pollack recognized that Claimant has a history of work-related
injuries to his right knee. However, Dr. Pollack testified that the injury that occurred
due to the bus accident caused Claimant to experience pain in his right knee and
opined that all the treatment following the bus accident was directly related to the bus
accident, not the 2007 work injury. He further opined that the infections Claimant
suffered were directly related to the total knee replacement and were in no way
related to the 2007 work injury. Dr. Pollack testified that the 2007 work injury would
not have prevented Claimant from performing his regular-duty job with Employer
and concluded that Claimant made a full and complete recovery from the 2007 work
injury. (R.R. at 194a-198a, 201a-02a.)
               On July 21, 2014, the WCJ issued an order denying Claimant’s petition
to reinstate compensation benefits. The WCJ found Claimant’s testimony regarding
his subjective symptoms credible; however, he noted that the case must be decided by

       4
         Dr. Pollack described this procedure as a “debridement of his right knee with irrigation and
a polyethylene exchange of his right knee.” (R.R. at 189a.)



                                                 11
expert testimony and concluded that Dr. Pollack’s testimony was more credible than
Dr. Grandrimo’s because: Dr. Pollack had access to and reviewed all of Claimant’s
preinjury and post-injury medical records whereas Dr. Grandrimo’s understanding of
Claimant’s condition was based only upon his physical examination and Claimant’s
subjective history; Dr. Grandrimo’s opinion failed to adequately address Claimant’s
preinjury right knee complaints as well as the post-injury bus accident; and the
“totality of the evidence is more consistent with a number of factors/injuries playing a
role in the arthritic condition that led to the 2010 knee replacement, and with the most
recent injury, the May 19, 2008 bus accident causing the most significant aggravation
of the condition.” (WCJ Finding of Fact No. 78.) The WCJ found that Claimant’s
work-related disability ceased on or after April 18, 2010, the date his benefits were
suspended pursuant to the Supplemental Agreement, and concluded that the surgeries
and other medical treatment rendered after that date were not related to his 2007 work
injury. (WCJ Finding of Fact No. 79.) Accordingly, the WCJ determined that
Claimant failed to satisfy his burden that he was again disabled as a result of the 2007
work injury.
               Claimant appealed to the Board, arguing that the WCJ erred when he
determined that Claimant’s knee replacement was not related to the 2007 work injury
because, pursuant to the Supplemental Agreement, the knee replacement was part of
the work injury and, consequently, the doctrine of res judicata precluded Employer
from contesting the causal connection between the 2007 work injury and the total
knee replacement. The Board affirmed the WCJ, reasoning that the testimony of
Employer’s medical expert attributed Claimant’s knee replacement to arthritic issues
and, although Employer agreed to pay for the knee replacement, the description of the
injury in the Supplemental Agreement did not include arthritis or aggravation of pre-



                                          12
existing arthritis.    Accordingly, the Board concluded that Employer was not
precluded from contesting the causal connection between Claimant’s 2007 work-
related knee sprain and the knee replacement.
              On appeal to this Court,5 Claimant reiterates his arguments before the
Board. Claimant asserts that the WCJ erred when he denied Claimant’s reinstatement
petition because, pursuant to the Supplemental Agreement and the WCJ’s 2010
decision, the causal relationship between Claimant’s 2007 work injury and
subsequent knee replacement was settled. More specifically, Claimant argues that res
judicata bars Employer from contesting the causal relationship between the knee
replacement and the 2007 work injury and also argues that collateral estoppel bars
Employer from asserting that Claimant’s knee replacement was not a recurrence of
his 2007 work injury.


                                          Discussion
              A claimant seeking to reinstate workers’ compensation benefits
following a suspension of benefits must prove that the work-related injury caused his
or her present disability, i.e., loss of earning power.             Trumbull v. Workmen’s
Compensation Appeal Board (Helen Mining Company), 683 A.2d 342, 345 (Pa.
Cmwlth. 1996).
              Here, Claimant’s expert, Dr. Grandrimo, testified that Claimant suffered
from arthritis before his 2007 work injury. (R.R. at 16a.) He also stated that, after he
performed the surgery on Claimant’s right knee in 2007, he recommended that

       5
         Our standard of review in workers’ compensation appeals is limited to determining
whether an error of law was committed, whether constitutional rights were violated, or whether
necessary findings of fact are supported by substantial evidence. Fruehauf Trailer Corporation v.
Workers’ Compensation Appeal Board (Barnhart), 784 A.2d 874, 876 n.2 (Pa. Cmwlth. 2001).



                                               13
Claimant undergo a series of injections to treat his degenerative arthritis. (R.R. at
10a-11a.) Dr. Grandrimo further testified that he performed Claimant’s total knee
replacement in 2010 because of arthritic issues.        (R.R. at 100a.)     Similarly,
Employer’s expert, Dr. Pollack, testified that he performed an IME of Claimant in
May 2008 and opined that Claimant had fully recovered from his 2007 work injury.
(R.R. at 183a, 195a-96a.) He further testified that “all the subsequent treatment that
[Claimant] sustained following that bus accident is directly related to that bus
accident and not related to any work injury.” (R.R. at 195a-96a.) Notwithstanding
the WCJ’s credibility determinations, both experts agreed that the 2007 work injury
was not the cause of Claimant’s total knee replacement. Therefore, Claimant failed
to meet his burden and establish that the 2007 work injury caused his current
disability.
              Nevertheless, Claimant argues that the Supplemental Agreement settled
the issue of causation and that Employer is estopped from contesting the causal
relationship between Claimant’s 2007 work injury and his 2010 total knee
replacement. Claimant argues that the Employer acknowledged via the Supplemental
Agreement that Claimant’s disability had recurred and agreed to pay for all medical
treatment causally related to the total knee replacement and that Employer cannot
now use its expert’s favorable testimony as a basis to modify its agreement. Claimant
essentially argues that once Employer agreed to pay for his total knee replacement
and all causally related treatment by way of the Supplemental Agreement, Employer
is precluded from denying that Claimant’s current disability is work related.
However, this Court has held that a voluntary agreement to pay medical bills does not
constitute an admission of liability. Bailey v. Workers’ Compensation Appeal Board
(Abex Corp.), 717 A.2d 17, 19 (Pa. Cmwlth. 1998) (en banc). Moreover, this Court



                                         14
has declined to extend the principle of estoppel to supplemental agreements. Myers
v. Workers’ Compensation Appeal Board (Family Heritage Restaurant), 728 A.2d
1021, 1023-24 (Pa. Cmwlth. 1999). Therefore, the burden remained with Claimant to
prove that the 2007 work injury caused his current disability, which he failed to do.
             Thus, we conclude that the Board did not err when it determined that
Employer was not prohibited from contesting the causal relationship between
Claimant’s 2007 work injury and the 2010 knee replacement.
             Accordingly, the Board’s order is affirmed.




                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                          15
               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John Bailey,                             :
                    Petitioner           :
                                         :    No. 1442 C.D. 2015
               v.                        :
                                         :
Workers’ Compensation Appeal             :
Board (Commonwealth of PA/               :
SCI Camp Hill),                          :
                Respondent               :


                                     ORDER


               AND NOW, this 27th day of April, 2016, the July 14, 2015 order of
the Workers’ Compensation Appeal Board is affirmed.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
