           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Aziz Moumen,                              :
                          Petitioner      :
                                          :
             v.                           :   No. 1817 C.D. 2016
                                          :   Submitted: June 9, 2017
Workers’ Compensation Appeal              :
Board (Supreme Mid Atlantic               :
Trucking),                                :
                       Respondent         :



BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                              FILED: August 31, 2017


             Petitioner Aziz Moumen (Claimant), acting pro se, petitions for
review of an order of the Workers’ Compensation Appeal Board (Board),
affirming the order of a Workers’ Compensation Judge (WCJ), which granted
Supreme Mid Atlantic’s (Employer) motion to dismiss Claimant’s review petition,
alleging an incorrect description of injury. For the reasons that follow, we affirm.
             Before filing the instant review petition, Claimant, then represented
by counsel, filed a claim petition on June 18, 2012, alleging that he suffered a
work-related injury on February 21, 2012, in the nature of an aggravation of an
inguinal hernia.1 Following hearings, by order dated September 3, 2014, the WCJ
denied Claimant benefits and dismissed his claim petition, concluding that
Claimant failed to meet his burden to prove a work-related injury. Claimant
appealed to the Board, arguing that the WCJ erred in concluding that he failed to
prove that he suffered a work-related injury in the nature of an inguinal hernia.
The Board affirmed by order dated October 20, 2015. Claimant then petitioned
this Court for review, and we affirmed by order dated September 2, 2016.
Claimant then filed a petition for allowance of appeal, which the Supreme Court of
Pennsylvania denied.2         Thus, with regard to the February 21, 2012 incident,


       1
          The original record in this matter includes a portion of the transcript from a hearing
conducted on February 21, 2012, relating to Claimant’s claim petition. (See Certified Record
(C.R.), Item No. 6.) The portion of the transcript is attached to Claimant’s appeal to the Board in
the matter now before this Court. Based upon our review of that limited portion of the transcript,
it appears that at some point during that hearing on the claim petition, Claimant attempted to
testify as to the existence of a low back injury not alleged in the claim petition. (See id.)
Employer objected to testimony regarding a possible low back injury, taking the position that the
claim petition did not identify any such injury, Employer had not prepared to defend a low back
injury, and Claimant should file a new petition. The WCJ appeared to agree with the position
advanced by Employer. A discussion also ensued between counsel as to whether Employer may
want to join a prior employer if Claimant litigated the alleged low back injury. The portion of
the transcript attached to Claimant’s appeal to the Board, however, is limited, and we cannot
discern what the WCJ or parties decided or agreed upon regarding the alleged low back injury.
More specifically, the Court is unable to discern from the brief portion of the transcript before
the Court whether the WCJ precluded the testimony or whether Claimant’s counsel decided that
he did not wish to proceed with attempting to litigate the low back injury as part of the claim
petition proceeding then before the WCJ.
       2
          See Moumen v. Workers’ Comp. Appeal Bd. (Supreme Mid Atl. Trucking), (Pa.
Cmwlth., No. 2608 C.D. 2015, filed September 2, 2016) (Moumen I), appeal denied, __A.3d__
(Pa., No. 836 MAL 2016, filed May 16, 2017). In Moumen I, Claimant argued only that the
WCJ and Board erred in concluding that he failed to prove a work-related injury. Claimant did
not argue that the WCJ erred in refusing to consider whether Claimant suffered a work-related
low back injury.



                                                2
Employer has never accepted a work-related injury, and no work-related injury has
ever been adjudicated to exist.
              On February 11, 2015, while the claim petition was on appeal to the
Board, Claimant filed the instant review petition. (Certified Record (C.R.), Item
No. 2.) Claimant asserted an “incorrect description of injury” relating to the same
alleged work-related incident which was the subject of the initial claim petition.3
(Id.) Claimant further asserted that his attorney who handled the initial claim
petition should have included the low back injury in the claim petition but failed to
do so. Claimant contends that when Claimant became aware of the situation, his
attorney asked the WCJ to include the low back injury in the claim petition, but,
according to Claimant, the WCJ instructed that a separate petition needed to be
filed.
              The review petition was assigned to the same WCJ as the claim
petition.4   The WCJ conducted a brief hearing on March 4, 2015, at which
Claimant appeared unrepresented by counsel. The WCJ provided Claimant with a
notice explaining his rights to retain legal counsel. The WCJ scheduled a second
hearing for July 22, 2015. Prior to the second hearing, Employer filed a motion to


         3
         The review petition asserts the same date of injury as the claim petition—
February 21, 2012.
         4
         We glean much of the facts surrounding the procedural aspects of this matter through
the WCJ’s decision and order, dated November 10, 2015, and the Board’s opinion and order,
dated October 4, 2016. Inexplicably, the certified record before this Court does not contain
various scheduling orders and, more pertinent to this matter, Employer’s motions to dismiss
Claimant’s review petition and Claimant’s answers thereto. Nor does it contain other items
referenced in the WCJ’s decision and order. The absence of the items, although inconvenient,
did not prevent this Court from being able to ascertain and address the issues raised in this
appeal.



                                             3
dismiss the review petition, apparently on the basis that Claimant could not seek
the relief he wanted through a review petition because there was no accepted or
adjudicated work injury.
             Clamant appeared at the second hearing without counsel but with an
interpreter. Claimant again attempted to offer testimony regarding the alleged low
back injury. (C.R., Item No. 11.) Given the pending motion to dismiss, however,
the WCJ limited the scope of the second hearing.         The WCJ did not permit
Claimant to testify regarding matters to which he had previously testified in the
litigation involving the claim petition proceedings. The WCJ explained:
                     I am not re-litigating the case from before. You
             presented your evidence and I am not—you can’t get a
             second bite of the apple, so to speak. You had this case
             litigated before. And so you’re starting to tell the same
             things that we went over the first time, and we’re not
             going to do that. That’s the number one problem with
             this testimony.
                     I mean I remember very well—I mean, I can
             remember it even now. At one point in the hearing at the
             end of the other case, the issue of your back came up and
             [your counsel]—I can’t put the words without having to
             read the transcript. But he essentially said something to
             the effect, we’re not seeking anything for the back.
             That’s on the record in the other case.
                     And that’s considered a statement by counsel.
             That was essentially a stipulation that we’re not seeking a
             claim for the back, as I remember. So now that’s a real
             legal problem for you . . . because that was in the record
             in the other case. And now you’ve brought this claim for
             the back.

(Id. at 14-15.)
             Following the hearing, the WCJ provided Claimant with an
opportunity to file an answer to Employer’s motion to dismiss, which he did.


                                         4
Thereafter, Employer filed a second motion to dismiss, this time averring that the
review petition should be dismissed on the basis of the doctrine of technical res
judicata. Claimant answered that motion as well.
              By decision and order dated November 10, 2016, the WCJ granted
Employer’s motions to dismiss the review petition. (C.R., Item No. 5.) The WCJ
observed that the record contains four “Judge’s Exhibits”—including the WCJ’s
decision and order, dated September 3, 2014, denying Claimant’s claim petition,
and an order of the Board.5 (Id.) The WCJ opined that “although [C]laimant
testified briefly regarding the employment situation and his back condition, this
WCJ concludes that testimony (briefly presented on July 22, 2015) is of minimal
relevance to the issues raised by the [m]otions to [d]ismiss.” (Id.)
              Relating to the first motion to dismiss, the WCJ found significant the
fact that Claimant previously litigated a claim petition for an alleged work-related
injury that occurred on February 21, 2012, in the nature of an aggravation of an
inguinal hernia, which the WCJ denied and dismissed. The WCJ reasoned that,
pursuant to Section 413(a) of the Workers’ Compensation Act (Act), Act of
June 2, 1915, P.L. 736, as amended and renumbered, 77 P.S. § 771, and case law
interpreting it, in order to proceed with a review petition, there must be an accepted
injury, via a notice of compensation payable, agreement for compensation, or a
decision. The WCJ found that, in the present case, there was never an accepted
work-related injury; the injury alleged in the claim petition—i.e., aggravation of an


       5
         Although the date of the order of the Board is not mentioned in the WCJ’s decision,
presumably the WCJ intended to refer to the Board’s order dated October 20, 2015, affirming the
WCJ’s decision denying Claimant’s claim petition. The Judge’s Exhibits are among the items
that were not included in the certified record.



                                              5
inguinal hernia, was specifically denied by Employer; the WCJ denied Claimant’s
claim petition; and the Board affirmed the WCJ’s denial of the claim petition.
Thus, “[w]hen Claimant filed the instant [r]eview [p]etition . . . , there was no
injury accepted or found to have occurred within the meaning of the Act.”6
(WCJ’s decision and order, dated 11/10/15, at 5.) The WCJ concluded that no
review could be undertaken when Employer never accepted the alleged
work-related injury and there has never been an adjudication that Claimant
suffered a work-related injury. (Id. at 4.) Simply put, the WCJ concluded that
there was no injury to review.
               Relating to the second motion to dismiss, the WCJ found that, as of
February 12, 2014, Claimant was aware that he had back problems relating to his
work for Employer but did not allege the back problems in the claim petition. The
WCJ further found that, during the hearing for the claim petition, the WCJ
indicated that Claimant could file another petition with respect to his back.
Claimant never filed another claim petition. The WCJ also found that prior to the
close of the record with respect to the claim petition, Claimant was aware of a back
problem which, at that time, he believed was related to his employment with
Employer. (Id. at 4.) The WCJ also found that “Claimant had knowledge of a
back problem at the time he filed the [c]laim [p]etition on June 18, 2012 or, at the
latest, during the litigation of that [c]laim [p]etition.” (Id.) The WCJ concluded
that the principle of res judicata barred Claimant from re-litigating the merits of
his claim petition in his review petition. (Id.) As a result of his disposition of the
motion to dismiss, the WCJ dismissed the review petition.

      6
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.



                                               6
              Claimant appealed to the Board, arguing that the WCJ improperly
prevented Claimant from taking depositions and presenting his case when the WCJ
granted Employer’s motions to dismiss.              The Board interpreted this issue as
encompassing a challenge to the WCJ’s decision to grant Employer’s motions to
dismiss. By order dated October 4, 2016, the Board affirmed the WCJ’s decision
and order. Claimant then petitioned this Court for review.
              On appeal,7 Claimant essentially argues that the Board erred in
affirming the WCJ’s granting of Employer’s motions to dismiss Claimant’s review
petition and, instead, should have allowed oral argument and testimony in regard to
the alleged low back injury.8 Claimant maintains that the subject low back injury
occurred on February 21, 2012, at the same time that the aggravation of the
inguinal hernia occurred, the latter of which the WCJ concluded, during the course
of litigating the claim petition, that Claimant failed to prove was a work-related
injury.
              Section 413(a) of the Act provides:



       7
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
       8
          Claimant also argues that the WCJ and Board erred in concluding that Claimant’s low
back injury was not work-related when he provided “expert documents” from two different
doctors regarding his injury and Employer presented no expert testimony to rebut that of
Claimant’s experts. This argument, however, fails to recognize that the WCJ dismissed the
review petition as an improper vehicle for the relief sought and based on the principle of res
judicata. The WCJ, therefore, did not consider the merits of whether Claimant’s low back injury
was work-related. Thus, the WCJ made no determination as to whether or not Claimant proved
that his low back injury was work-related. As a result, this argument is without merit.



                                               7
              A workers’ compensation judge may, at any time, review
              and modify or set aside a notice of compensation payable
              and an original or supplemental agreement or upon
              petition filed by either party with the department, or in
              the course of the proceedings under any petition pending
              before such workers’ compensation judge, if it be proved
              that such notice of compensation payable or agreement
              was in any material respect incorrect.

Pursuant to Section 413(a) of the Act, a claimant may file a review petition to
correct the description of an injury in a notice of compensation payable or original
or supplemental agreement.9 Cinram Mfg., Inc., v. Workers’ Comp. Appeal Bd.
(Hill), 975 A.2d 577, 580-81 (Pa. 2009).               At the outset, we emphasize that
Claimant’s review petition seeks review of an alleged work-related injury that
Employer never accepted, that no court ever adjudicated to exist, and for which
Employer never issued a notice of compensation payable. In other words, although
Claimant filed the instant review petition, there is no accepted, agreed upon, or
adjudicated description of injury for us to review. Because we cannot review a
description of an injury that has never been accepted or agreed upon as a work-
related injury, we must agree with the Board that the WCJ properly granted


       9
          A party also may file a review petition to amend a notice of compensation payable to
remedy an incorrect injury description during the course of proceedings under any petition
pending before the WCJ. Section 413(a) of the Act, 77 P.S. § 771. A claimant also may file a
petition to amend a description of an injury to include an injury that develops subsequently and
as a result of the original injury. Section 413(a) of the Act, as amended and renumbered, 77 P.S.
§ 772. Claimant does not argue that his alleged low back injury came as a subsequent result of
the injury initially alleged, but rather argues that the low back injury coincided with the
aggravation of the inguinal hernia. Claimant’s alleged low back injury must, therefore, be
considered as an injury incorrectly omitted from the original claim petition. The Supreme Court
of Pennsylvania noted the distinction between these two reasons for amendment in its decision in
Cinram Manufacturing, Inc., v. Workers’ Compensation Appeal Board (Hill), 975 A.2d 577
(Pa. 2005).



                                               8
Employer’s motion to dismiss on that basis. See id. at 582-83. Claimant could not
use a review petition to change an incorrect description of an injury when no work-
related injury has ever been accepted or otherwise recognized.
            Furthermore, we agree that Claimant’s claim petition is barred by the
principle of technical res judicata, because Claimant already litigated his claim of
allegedly suffering a February 21, 2012 work-related injury. Claimant once again
comes before this Court in an attempt to litigate the existence of a work-related
injury; this time, under the guise of a review petition. The principle of technical
res judicata, however, renders Claimant’s arguments meritless.
            The principle of technical res judicata bars a future suit between the
same parties on the same cause of action once a final judgment is entered on the
merits of a claim.      Henion v. Workers’ Comp. Appeal Bd. (Firpo & Sons,
Inc.), 776 A.2d 362, 365 (Pa. Cmwlth. 2001). To prevail on technical res judicata
grounds, a party must show: (1) identity of the thing sued upon or for; (2) identity
of the cause of action; (3) identity of the persons and parties to the action; and
(4) identity of the quality or capacity of the parties suing or sued. Id. at 365-66.
Technical res judicata applies equally to claims actually litigated and claims that
should have been litigated. Id. at 366. “Generally, causes of action are identical
when the subject matter and the ultimate issues are the same in both the old and
new proceedings.” Id.
            Claimant, through the instant review petition, is attempting to
re-litigate the same claim he pursued in his claim petition.     First, the thing sued
upon or for in both the claim petition and review petition is workers’ compensation
benefits arising out of a work-related injury that allegedly occurred on
February 21, 2012. The WCJ found that Claimant failed to meet his burden of


                                         9
proof in establishing a work-related injury. Moumen I. Both petitions explicitly
refer to February 21, 2012, as the date of the alleged work-related injury, and
Claimant maintains that the injuries occurred at the same time.
               Second, the causes of action of the claim petition and review petition
are identical.     Claimant ultimately failed to establish a February 21, 2012,
work-related injury in the nature of an aggravation of an inguinal hernia in his
claim petition. Now, under the guise of a review petition alleging an incorrect
description of injury, Claimant is attempting to adjudicate the existence of a
work-related, low back injury arising out of the same February 21, 2012 incident.
Just as Claimant attempted to establish a work-related injury in his claim petition,
the testimony offered before the WCJ and the arguments in Claimant’s brief both
attempt to persuade this Court of the existence of a work-related, low back injury.
               Furthermore, although Claimant did not include his low back injury in
his claim petition, if he wished to litigate his low back injury, he should have done
so when he filed the claim petition. See Weney v. Workers’ Comp. Appeal Bd.
(Mac Sprinkler Systems, Inc.), 960 A.2d 949, 956-57 (Pa. Cmwlth. 2008), appeal
denied, 971 A.2d 494 (Pa. 2009). The record demonstrates Claimant’s awareness
of a low back injury at the time he filed his claim petition.10

       10
           Claimant, at the hearing for his review petition, testified before the WCJ that “first
when I tried to open the claim, I told the previous attorney he’s supposed to --- the claim for my
lower back and my inguinal hernia.” (C.R., Item No. 11 at 10.) The WCJ, recalling the prior
hearing for Claimant’s claim petition, recounted that Claimant’s counsel “essentially [stipulated]
that we’re not seeking a claim for the back, as I remember.” (Id. at 15.) Review of the
February 12, 2014 claim petition hearing transcript reveals that Claimant’s attorney stated that
Claimant desired to testify in regards to the low back injury, but that the same was “not alleged .
. . in our petition.” (C.R., Item No. 6.) Furthermore, Claimant submitted to the WCJ a letter
from his treating physician, Dr. John P. Welch, which states: “[p]atient has had low back pain
since February 2012 that was aggrivated [sic] by heavy lifting at work.” (Id.) Therefore, at the
(Footnote continued on next page…)

                                               10
               Finally, the parties to both the claim petition and review petition
actions are Employer and Claimant, and no issue is raised as to their respective
capacities to sue or be sued. Technical res judicata, therefore, precludes Claimant
from re-litigating, under the guise of a review petition, a claim which Claimant
already litigated in his claim petition. See id. We conclude, therefore, that the
Board did not err in affirming the WCJ’s dismissal of Claimant’s review petition
under the principle of res judicata.11
               Accordingly, we affirm the Board’s order.




                                     P. KEVIN BROBSON, Judge




(continued…)

time Claimant filed his claim petition, he undoubtedly knew of his low back injury and its
relatedness to his alleged work-related injury. See Weney, 960 A.2d at 956-57 (dismissing
second review petition when claimant knew of injury’s existence during litigation of a prior
review petition).
       11
           To the extent that Claimant contends that, during the proceedings on the claim petition
relating to the inguinal hernia, the WCJ refused to allow Claimant to litigate his low back injury
at that time, we make two observations: (1) the WCJ recalls a different scenario where
Claimant’s counsel specifically stated on the claim petition record (which neither party has made
part of the record before this Court in this proceeding) that Claimant was not pursuing a low
back injury; and (2) Claimant, in his appeal relating to the claim petition, did not argue to this
Court that the WCJ erred by not allowing him to pursue his low back injury as part of the claim
petition proceeding.



                                               11
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Aziz Moumen,                        :
                Petitioner          :
                                    :
           v.                       :   No. 1817 C.D. 2016
                                    :
Workers' Compensation Appeal        :
Board (Supreme Mid Atlantic         :
Trucking),                          :
                Respondent          :



                                ORDER


           AND NOW, this 31st day of August 2017, the order of the Workers’
Compensation Appeal Board is AFFIRMED.




                             P. KEVIN BROBSON, Judge
