              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Roosevelt McDaniel,                     :
                Petitioner              :
                                        :   No. 797 C.D. 2016
            v.                          :
                                        :   Submitted: September 23, 2016
Workers’ Compensation Appeal            :
Board (Maramont Corporation),           :
                Respondent              :


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                  FILED: December 20, 2016


            Roosevelt McDaniel (Claimant) petitions for review of the April 20,
2016 order of the Workers’ Compensation Appeal Board (Board), which affirmed a
Workers’ Compensation Judge’s (WCJ’s) decision granting his claim petition in part.


                          Facts and Procedural History
            Claimant worked for Maramont Corporation (Employer) as a delivery
assistant and his job duties consisted of loading and unloading trucks and making
deliveries. On July 21, 2010, Claimant was the passenger in a delivery truck that was
traveling 10-15 miles per hour down a one-way street. The truck swerved to the right
to avoid hitting a pedestrian and sideswiped a car. As a result, Claimant was jerked
forward and back, striking his head on the dashboard and his right elbow on the
armrest. Claimant immediately reported the accident to his supervisor, Perry Pilson,
who advised him to contact the police. Claimant did so and thereafter finished his
deliveries for the day. (WCJ’s 3/6/15 Decision, Findings of Fact Nos. 1(a)-(e).)
             The next day, Claimant called off work and sought treatment at the
Temple University Hospital Emergency Room for complaints of neck, elbow, and
back pain. On July 23, 2010, Claimant reported to WorkNet upon the instruction of
Pilson, at which time he was required to undergo drug testing. Claimant worked a
few days following the incident but was eventually laid off when his drug test
returned a positive result for marijuana. Claimant had difficulty performing his job
duties prior to his layoff because of back and elbow pain. Claimant believed that he
would be working for Employer the entire summer. (WCJ’s March 6, 2016 Decision,
Findings of Fact Nos. 1(e)-(g), (j)-(l).)
             On September 8, 2010, Claimant filed a claim petition alleging that he
was totally disabled as a result of the injuries he sustained to his lower back and
elbow on July 21, 2010. (WCJ’s January 27, 2012 Decision, Finding of Fact No. 1.)
Employer filed an answer denying the allegations of Claimant’s petition. (WCJ’s
January 27, 2012 Decision, Finding of Fact No. 2.) The matter was assigned to WCJ
Pamela Santoro, who proceeded with hearings. In support of his claim petition,
Claimant submitted his own deposition testimony as well as the deposition testimony
of Michael Schina, M.D. In opposition, Employer submitted into evidence the
deposition testimony of Claimant’s supervisor, Pilson; the deposition testimony of
David Kuntz, Ph.D., the executive director of the lab that performed Claimant’s drug
test; the deposition testimony of I. Howard Levin, M.D., who performed an
independent medical examination of Claimant; the deposition testimony of Roy
Stahlman, M.D., the WorkNet physician who evaluated Claimant two days after the



                                            2
motor vehicle accident; and medical records from Temple University Hospital.
(Supplemental Reproduced Record (S.R.R.) at 1a-8a.)
               By decision and order circulated January 27, 2012, WCJ Santoro granted
Claimant’s claim petition. Id. In rendering her decision, WCJ Santoro credited the
testimony of Claimant and Dr. Schina, and rejected Dr. Levin’s testimony as neither
credible nor persuasive. Id. Employer appealed to the Board, arguing that WCJ
Santoro failed to review and/or analyze the substantial evidence it presented, namely
the deposition testimony of Pilson, Dr. Kuntz, Dr. Levin, and Dr. Stahlman, and the
medical records from Temple University Hospital.1 (S.R.R. at 9a-10a.) Further,
Employer argued that WCJ Santoro failed to address the crucial issue in this case, i.e.,
whether Claimant’s loss of earnings was the result of his termination following a
positive drug test.       Id.   Rather, Employer contended that WCJ Santoro merely
adopted Claimant’s proposed findings. Id.
               On February 15, 2012, WCJ Santoro issued an amended/corrected
decision, still granting Claimant’s claim petition, but including additional findings
relating to the deposition testimony of Dr. Kuntz, Dr. Stahlman, and the medical
records from Temple University Hospital. (S.R.R. at 11a-19a.) However, WCJ
Santoro again failed to review or analyze the deposition testimony of Pilson or Dr.
Levin, or address the issue of Claimant’s positive drug test. Id.
               Employer thereafter filed a second appeal with the Board arguing that
WCJ Santoro’s sua sponte issuance of an amended/corrected decision was improper
and inconsistent with section 131.112 of the Special Rules of Administrative Practice
and Procedure Before Workers’ Compensation Judges, 34 Pa. Code §131.112
(providing that a WCJ may correct a typographical or clerical error, or obvious

      1
          WCJ Santoro did review a report submitted by Dr. Levin, but not his deposition testimony.



                                                 3
omission or error on her own motion or upon the motion of a party, but that any other
corrections requires the written agreement of the parties).        (S.R.R. at 20a-22a.)
Employer reiterated its argument that WCJ Santoro failed to review or analyze the
deposition testimony of Dr. Levin or the issue of Claimant’s positive drug test. Id.
Further, Employer argued that the WCJ’s findings were not supported by substantial
evidence and actually contradicted the evidence of record. Id.
             By decision dated October 16, 2013, the Board vacated both decisions
by WCJ Santoro and remanded for further proceedings, de novo, relating to
Claimant’s claim petition. (S.R.R. at 23a-28a.) The Board specifically recommended
that the matter be assigned to a new WCJ. Id. In rendering its decision, the Board
noted that this Court has previously held that the “[i]ssuance of an Amended Order by
the WCJ without written agreement of the parties that did not correct a typographical
or clerical error or oversight, but obviously evidenced a change in analysis which
affected the substantive rights of the parties was . . . null and void.”2 (S.R.R. at 27a.)
The Board concluded that “the WCJ’s attempt to rehabilitate her earlier decision by
referencing the omitted exhibits in her Amended/Corrected Decision did not
accomplish that purpose” and made “substantive changes to the earlier Decision.” Id.
The Board further held that the WCJ erred by not reviewing all evidence of record
and by failing to address Employer’s defense of termination for cause, i.e.,
Claimant’s positive drug test. Id.
             Despite the recommendation of the Board, the matter was reassigned to
WCJ Santoro, who conducted a hearing on April 8, 2014. Following a lengthy pre-

      2
        The Board cited our previous decisions in Varkey v. Workers’ Compensation Appeal
Board (Cardone Industries), 827 A.2d 1267 (Pa. Cmwlth. 2003), and Butcher v. Workmen’s
Compensation Appeal Board (Treadway Resort Inn), 517 A.2d 1023 (Pa. Cmwlth. 1986).




                                            4
trial conference with respective counsel for the parties, WCJ Santoro announced her
agreement with the Board’s recommendation to reassign this matter to a new WCJ.
(S.R.R. at 31a.) WCJ Santoro noted that “[b]oth counsel have agreed with [the
reassignment].” (S.R.R. at 32a.) She went on to state that she was “officially
recusing [herself] from this case based upon the Remand and my conversation with
Counsel” and “given the series of events that have happened.” Id. She then noted
that “[b]oth counsel have agreed to my recusal.” Id.
            The matter was subsequently reassigned to WCJ Erin Young, who had
previously been assigned a protective termination petition filed by Employer during
the pendency of its appeals relating to Claimant’s claim petition. At a hearing held
with respect to Employer’s termination petition on October 17, 2014, counsel for the
parties reiterated that neither objected to the reassignment of the remanded claim
petition to WCJ Young. The remanded claim petition was officially reassigned to
WCJ Young on November 17, 2014. (S.R.R. at 34a-38a.)
            By decision and order circulated March 6, 2015, WCJ Young granted
Claimant’s claim petition in part, concluding that Claimant had sustained his burden
of proving that he sustained a compensable work injury on July 21, 2010, in the
nature of a cervical and lumbar strain and sprain. (S.R.R. at 39a-52a.) However,
WCJ Young further found that Claimant failed to meet his burden of proof with
respect to disability resulting from the work injury or his allegations of additional
injuries. Id. The WCJ explained that Claimant returned to work following his injury
and his subsequent loss of wages was the result of his termination from employment
for a cause wholly unrelated to his work injury.       Id.   Thus, the WCJ granted
Employer a suspension of Claimant’s benefits effective July 21, 2010. Id. Further,
accepting the testimony of Dr. Levin as credible that Claimant had fully recovered



                                          5
from his work injury as of the date of his examination of Claimant, January 6, 2011,
WCJ Young granted Employer a termination of benefits effective as of that date. Id.
                Claimant thereafter appealed to the Board, arguing that WCJ Young’s
findings were not supported by substantial evidence and that the Board lacked the
authority to remand the matter to a new WCJ. (S.R.R. at 53a-57a.) Nonetheless, the
Board affirmed WCJ Young’s decision. (S.R.R. at 58a-69a.)
                On appeal to this Court,3 Claimant argues that the Board erred and
exceeded its discretion in remanding the case to a different WCJ for de novo
proceedings.4 We disagree.


                                            Discussion
                Claimant acknowledges that the Board has broad discretionary authority
under section 419 of the Workers’ Compensation Act (Act)5 to remand to a WCJ.
Section 419 provides as follows:



       3
          On appeal, our scope of review is limited to determining whether findings of fact are
supported by substantial evidence, whether an error of law has been committed, or whether
constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S.
§704, Meadow Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d
214, 261 n.3 (Pa. Cmwlth. 2006).

       4
          In his petition for review, Claimant reiterated the argument he raised before the Board that
WCJ Young’s findings were not supported by substantial evidence. However, in his brief, Claimant
abandoned this argument and proceeded solely with the argument set forth above. Thus, Claimant’s
substantial evidence argument is waived. See Muretic v. Workers’ Compensation Appeal Board
(Department of Labor & Industry), 934 A.2d 752, 758 (Pa. Cmwlth. 2007) (holding that issues
raised in a petition for review but not addressed in a brief are waived).

       5
           Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §852.




                                                  6
              The board may remand any case involving any question of fact
              arising under any appeal to a referee[6] to hear evidence and
              report to the board testimony taken before him or such
              testimony and findings of fact thereon as the board may order.
              The department may refer any question of fact arising out of
              any petition assigned to a referee, to any other referee to hear
              evidence, and report the testimony so taken thereon to the
              original referee.
77 P.S. §852; see also See Joseph v. Workmen’s Compensation Appeal Board
(Delphi Co.), 560 A.2d 755 (Pa. 1989). Indeed, in Joseph, our Supreme Court held
that the Board properly remanded a matter to the WCJ where the WCJ admittedly
closed the record prematurely without considering a party’s brief relating to a
determinative issue of insurability. Here, the WCJ failed to consider the bulk of the
evidence presented by Employer and, perhaps more importantly, failed to address the
crucial issue of Claimant’s entitlement to benefits following the termination of his
employment due to a failed drug test.
              Moreover, we have previously noted that section 419 of the Act merely
states that the Board may remand to “a referee,” and that “this language imposes no
requirement that a case must always be remanded to a different referee. . . .” Boyd v.
Workmen’s Compensation Appeal Board (Eichleay Corp.), 631 A.2d 1111, 1113 (Pa.
Cmwlth. 1993). The reverse is equally applicable, i.e., the language of section 419
imposes no requirement that the Board remand a matter to the same referee. In other
words, section 419 is neither a statutory mandate that a case be remanded to an
original referee, nor is it a statutory prohibition on remanding the matter to a new
referee. Furthermore, we note that the Board did not direct that the matter be
transferred to a new WCJ, it only recommended that such action be taken, and the

       6
        Pursuant to sections 109 and 401 of the Act, 77 P.S. §§29, 701, “referees” are now referred
to as “WCJs.”



                                                7
record reveals that Claimant explicitly agreed to a remand to a different WCJ during
hearings before both WCJ Santoro and WCJ Young. (S.R.R. at 32a, 35a.)
            Nevertheless, Claimant asserts that the Board lacked the authority to
remand the case for a de novo hearing and that such action by the Board amounts to
the grant of a rehearing and a second bite at the apple for Employer. We do not
agree.
            In her original decision, WCJ Santoro merely adopted Claimant’s
proposed findings and conclusions without addressing the evidence or principal issue
submitted by Employer. While WCJ Santoro attempted to correct these substantial
defects via her sua sponte issuance of an amended/corrected decision, such decision
still failed to consider the bulk of the evidence and the principal issue submitted by
Employer and, as the Board held, was null and void. Additionally, contrary to
Claimant’s argument, the Board’s remand does not amount to a rehearing or a second
bite at the apple. Rather, the Board’s remand essentially requires a complete review
of all of the evidence submitted by the parties, a review that WCJ Santoro failed to
conduct when rendering her original decision.
            Because a remand for de novo proceedings was appropriate given our
review of the record in this case, and there is no authority prohibiting a remand to a
new WCJ, the Board did not err or exceed its discretion.
            Accordingly, the order of the Board is affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                          8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Roosevelt McDaniel,                   :
                Petitioner            :
                                      :    No. 797 C.D. 2016
            v.                        :
                                      :
Workers’ Compensation Appeal          :
Board (Maramont Corporation),         :
                Respondent            :


                                   ORDER


            AND NOW, this 20th day of December, 2016, the April 20, 2016
order of the Workers’ Compensation Appeal Board is affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
