              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James McFillin,                         :
                         Petitioner     :
                                        :
                  v.                    :
                                        :
Workers’ Compensation Appeal            :
Board (Township of Lower Merion         :
and Delaware Valley Workers             :
Compensation Trust),                    :   No. 478 C.D. 2018
                      Respondents       :

James McFillin,                         :
                         Petitioner     :
                                        :
                  v.                    :
                                        :
Workers’ Compensation Appeal            :
Board (Township of Lower Merion),       :   No. 479 C.D. 2018
                      Respondent        :   Submitted: November 30, 2018


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                 FILED: February 4, 2019

            James McFillin (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) March 15, 2018 order
affirming the Workers’ Compensation Judge’s (WCJ) decision dismissing as
untimely Claimant’s Petition for Reinstatement (Reinstatement Petition), denying his
Claim Petition and denying his Motion for Remand/Rehearing (Motion). Claimant
presents two issues for this Court’s review: (1) whether the Agreement for
Compensation purportedly signed by Claimant and Lower Merion Township’s
(Employer) insurance carrier on September 15, 2010 (Compensation Agreement)
should have been considered in resolving Claimant’s Reinstatement Petition; and (2)
whether the grievance arbitrator’s (Arbitrator) decision should have been considered
in determining Claimant’s Claim Petition. After review, we affirm.
               Claimant was employed by Employer as a police officer. On January
31, 2007, Claimant injured his back while getting out of his police car. On October
19, 2009, Employer issued a medical-only Notice of Temporary Compensation
Payable (NTCP) describing Claimant’s injury as a low back sprain/strain. Claimant
continued working until he retired effective July 31, 2012.         Claimant originally
received an age and service pension from Employer. Claimant subsequently filed a
grievance under the collective bargaining agreement (CBA) between the police union
and Employer, and the Arbitrator issued a decision converting Claimant’s age and
service pension to a service-connected disability pension.
               On June 18, 2015, Claimant filed the Reinstatement Petition alleging
that his 2007 work injury caused his decreased earning power as of 2012. Claimant
also filed the Claim Petition alleging that on July 1, 2012, he sustained injuries to his
lumbar spine, neck and both shoulders, and radiculopathy and myofascial pain
syndrome while performing police duties, which were aggravations of the prior work
injury. Claimant alleged that he notified Employer of this injury. Claimant sought
total disability benefits from July 1, 2012, and ongoing. Employer denied Claimant’s
allegations.
               The Reinstatement and Claim Petitions were consolidated before the
WCJ. On January 24, 2017, the WCJ denied both Petitions. The WCJ concluded that
the Reinstatement Petition was time-barred because it was not filed within three years
of the January 31, 2007 work injury date. The WCJ also concluded that since
collateral estoppel did not apply to the grievance Arbitrator’s decision, the WCJ was
not bound by the Arbitrator’s findings. Relative to the Claim Petition, the WCJ
                                           2
concluded that Claimant failed to prove he sustained a work-related injury on or
about July 1, 2012, or that he notified Employer of such injury. On February 9, 2017,
Claimant appealed from the WCJ’s decisions to the Board. On April 14, 2017,
Claimant filed the Motion with the Board pursuant to Section 426 of the WC Act
(Act).1 In his Motion, Claimant requested a hearing to introduce the Compensation
Agreement. On March 15, 2018, the Board denied Claimant’s Motion and affirmed
the WCJ’s decisions. Claimant appealed to this Court.2
               Claimant first argues that the Compensation Agreement should have
been considered in resolving Claimant’s Reinstatement Petition.3 We disagree.
               Initially, Section 315 of the Act provides, in relevant part:

               In cases of personal injury[,] all claims for compensation
               shall be forever barred, unless, within three years after the

       1
         Act of June 2, 1915, P.L. 736, as amended, added by Section 6 of the Act of June 26, 1919,
P.L. 642, 77 P.S. § 871. Section 426 of the Act governs rehearing requests.
               [A] petition for rehearing under [S]ection 426 of the Act is properly
               filed only after the [Board] has issued a decision. Because Claimant
               filed his petition before the [Board] ruled in this matter, Claimant’s
               Petition for Rehearing was premature. Thus, Claimant’s request to
               present new evidence is properly considered a Petition for Remand
               under [S]ection 419 of the Act[, added by Section 6 of the Act of June
               26, 1919, P.L. 642, 77 P.S. § 852].
Puhl v. Workers’ Comp. Appeal Bd. (Sharon Steel Corp.), 724 A.2d 997, 1000 n.4 (Pa. Cmwlth.
1999) (citation omitted).
        2
          “On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
        3
          This Court will treat Claimant’s Reinstatement Petition as a Claim Petition since the only
other document before the WCJ was Employer’s October 19, 2009 medical-only NTCP, which,
presumably, converted to a Notice of Compensation Payable 90 days thereafter. Because Employer
never accepted and Claimant never proved that he was disabled from the 2007 injury, disability had
not been suspended when the NCP was issued. Therefore, Claimant could not seek to have
disability benefits reinstated, and the 500–week period for reinstatement of benefits does not govern
this case. See Sloane v. Workers’ Comp. Appeal Bd. (Children’s Hosp. of Phila.), 124 A.3d 778
(Pa. Cmwlth. 2015).
                                                 3
              injury, the parties shall have agreed upon the compensation
              payable under this article; or unless within three years after
              the injury, one of the parties shall have filed a petition as
              provided in article four hereof.

77 P.S. § 602. Here, because Claimant’s injury occurred January 31, 2007, pursuant
to Section 315 of the Act, Claimant’s claim was “forever barred” unless an agreement
of compensation or a petition was filed by January 31, 2010. Id. Claimant filed his
Reinstatement Petition on June 18, 2015. In addition, Claimant’s Compensation
Agreement, even if it were properly introduced and admitted into evidence before the
WCJ,4 was purportedly signed on September 15, 2010. Accordingly, since neither
document was executed within the allotted time period, the WCJ properly determined
the Reinstatement Petition was untimely.
              Moreover,

              [a] request for remand to the [WCJ], when accompanied by
              supporting evidence, constitutes the equivalent of a petition
              for rehearing, which is granted to allow a party to present
              newly[-]discovered, noncumulative evidence. The decision
              whether to grant or deny such petition is within the Board’s
              discretion and will not be reversed except for an abuse of
              that discretion.

Cisco v. Workmen’s Comp. Appeal Bd. (A&P Tea Co.), 488 A.2d 1194, 1196 (Pa.
Cmwlth. 1985) (citation omitted). Further, “[t]he Board cannot be said to have
abused its discretion in denying a request for remand where [a c]laimant has failed to
show how the newly[-]discovered evidence could change the outcome of the case.”
Id.
              Here, the Board denied Claimant’s Motion, stating:

              [A] rehearing is not allowable simply for the purpose of
              strengthening weak proofs that have already been presented,
              or to introduce previously[-]available evidence to attempt to

       4
        Claimant did not introduce the Compensation Agreement before the WCJ, but rather filed
the Motion before the Board for a remand/rehearing for that purpose.
                                              4
               cure a failure to satisfy the burden of proof before the WCJ.
               ...
               Claimant alleges that he did not know about the
               [Compensation] Agreement and that it was not available by
               any reasonable effort because it was apparently in
               [Employer’s] sole possession.[5] However, he does not
               explain why. An [a]greement for [c]ompensation is a
               document that both a claimant and employer would execute,
               not something that an employer would unilaterally issue.
               Claimant fails to explain how he would execute an
               [a]greement for [c]ompensation providing for receipt of
               disability benefits but not have knowledge of it and not be
               able to receive a copy from [Employer]. Claimant does not
               allege that he requested a copy but [Employer] refused to
               provide him with one or falsely denied its existence. Nor
               does he explain how he came into possession of the
               document. The [Compensation Agreement], if it existed,
               should have been equally available to Claimant and
               [Employer], and Claimant has not adequately explained
               why it would not have been. Therefore, we determine that a
               remand is not warranted and we deny Claimant’s [Motion].

Board Dec. at 12. This Court discerns no abuse of discretion in the Board’s analysis.
               Moreover, our Supreme Court has held: “[T]he Act provides no
mechanism whereby an agreement can create or resurrect a right under the statute,
where the statute itself mandates that the right is expired.” Cozzone v. Workers’
Comp. Appeal Bd. (Pa. Mun./E. Goshen Twp.), 73 A.3d 526, 542 (Pa. 2013). Given
the purported date of the Compensation Agreement, it was executed too late to
preserve Claimant’s claims.          Thus, the Compensation Agreement, if considered,
would not have changed the outcome in resolving Claimant’s Reinstatement Petition.
Accordingly, the Board properly denied the Motion.
               Claimant next argues that the Arbitrator’s decision should have been
considered in determining the Claim Petition. Specifically, Claimant contends that



      5
          Employer denies this allegation.
                                              5
collateral estoppel precluded the WCJ from denying the Claim Petition because the
Arbitrator awarded Claimant a disability pension. We disagree.
                This Court has explained:

                Collateral estoppel, also known as issue preclusion,
                prevents relitigation of questions of law or issues of fact
                that have already been litigated in a court of competent
                jurisdiction. The doctrine of collateral estoppel is based on
                the policy that a losing litigant does not deserve a rematch
                after fairly suffering a loss in adversarial proceedings on an
                issue identical in substance to the one he subsequently seeks
                to raise.
                Collateral estoppel will foreclose relitigation of issues of
                fact or law in subsequent actions where the following
                criteria are met: (1) the issue in the prior adjudication is
                identical to the one presented in the later action; (2)
                there was a final judgment on the merits; (3) the party
                against whom the plea is asserted was a party or in privity
                with a party to the prior adjudication; (4) the party against
                whom collateral estoppel is asserted has had a full and fair
                opportunity to litigate the issue in the prior action; and (5)
                the determination in the prior proceeding was essential to
                the judgment.

Merrill v. Workers’ Comp. Appeal Bd. (Dep’t of Corr.), 158 A.3d 242, 245 (Pa.
Cmwlth. 2017) (emphasis added; citations omitted). All of the factors must be met
for collateral estoppel to apply. Hulmes v. Workers’ Comp. Appeal Bd. (Rite Aid
Corp.), 811 A.2d 1126 (Pa. Cmwlth. 2002).
                Here, Claimant asserts that the Arbitrator’s award precludes the WCJ’s
denial of the Claim Petition. However, the Claim Petition reflects that Claimant
sustained an injury on July 1, 2012. See Reproduced Record (R.R.) at 5a. According
to the Arbitrator’s Introduction and Statement of Relevant Facts: “At the time of his
retirement in July 2012,[6] [Claimant] maintained that he was forced to retire due to a
permanent, service-related disability that occurred in the January, 2007 incident.”

      6
          Claimant retired July 31, 2012.
                                              6
R.R. at 72a (emphasis added). The Arbitrator’s decision nowhere references a July 1,
2012 injury. See R.R. at 69a-77a.
             Further, the Arbitrator concluded: “I find that Officer McFillin is entitled
to a service-connected disability pension.” R.R. at 76a. A police officer is eligible
for a service-connected disability pension if he “suffers a work-related injury that the
[o]fficer believes renders him or her totally disabled as defined in Article 14.5.A of
[the CBA].” Article 14.5.A of the CBA defines “‘Total Disability’ [as] [m]entally or
physically unfit for an indefinite duration and recovery is not predicted in the
foreseeable future to perform the duties presently being provided by a Lower Merion
Police Officer.” R.R. at 61a.
             As the issue in the Claim Petition was whether Claimant sustained a
work-related injury on July 1, 2012, and the issue in the arbitration proceeding was
whether Claimant was entitled to a service-connected disability, “the issue in the
[arbitration proceeding] is [not] identical to the one presented in the [Claim
Petition].” Merrill, 158 A.3d at 245. Because all five factors are not met, collateral
estoppel does not apply. Hulmes. Accordingly, collateral estoppel did not preclude
the WCJ from denying the Claim Petition.
             For all of the above reasons, the Board’s order is affirmed.



                                       ___________________________
                                       ANNE E. COVEY, Judge




                                           7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James McFillin,                        :
                        Petitioner     :
                                       :
                  v.                   :
                                       :
Workers’ Compensation Appeal           :
Board (Township of Lower Merion        :
and Delaware Valley Workers            :
Compensation Trust),                   :   No. 478 C.D. 2018
                      Respondents      :

James McFillin,                        :
                        Petitioner     :
                                       :
                  v.                   :
                                       :
Workers’ Compensation Appeal           :
Board (Township of Lower Merion),      :   No. 479 C.D. 2018
                      Respondent       :


                                     ORDER

            AND NOW, this 4th day of February, 2019, the Workers’ Compensation
Appeal Board’s March 15, 2018 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
