        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William Tobin,                            :
                          Petitioner      :
                                          :
             v.                           :   No. 974 C.D. 2018
                                          :   Submitted: November 2, 2018
Workers’ Compensation Appeal              :
Board (Upper Darby Township),             :
                      Respondent          :


BEFORE: HONORABLE ROBERT SIMPSON, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                          FILED: May 31, 2019


             Petitioner William Tobin (Claimant) petitions for review of an order of
the Workers’ Compensation Appeal Board (Board), dated June 26, 2018. The Board
affirmed an order of Workers’ Compensation Judge Kathleen DiLorenzo (WCJ
DiLorenzo), granting the termination petition (Termination Petition) filed by Upper
Darby Township (Employer) and denying Claimant’s review petition (Review
Petition). We now vacate and remand the matter to the Board.
             Claimant worked for Employer as a police officer.          (Reproduced
Record (R.R.) at 47a.) On June 13, 2012, Claimant sustained a work-related injury
in the nature of a lumbosacral sprain/strain along with a contusion of the right knee.
(Id.) Employer accepted liability for Claimant’s work-related injury by issuing a
notice of temporary compensation payable, which subsequently converted to a
notice of compensation payable (NCP) by operation of law. (Id. at 47a.) On
April 19, 2013, Employer filed a petition to terminate benefits, alleging that
Claimant had fully recovered from his work-related injury as of January 31, 2013.
(Id.) By order dated June 16, 2014, Workers’ Compensation Judge Joseph Stokes
(WCJ Stokes) denied Employer’s petition, concluding that Employer failed to meet
its burden of proving that Claimant had fully recovered from his work-related injury
as of January 31, 2013. (Id. at 49a-50a.) Employer appealed WCJ Stokes’s decision
to the Board, asking the Board to clarify that WCJ Stokes made no ruling on the
permanence of Claimant’s work-related injury. (Id. at 53a.) The Board affirmed
WCJ Stokes’s decision, concluding that Employer did not raise an appealable issue
because matters related to permanence “are not at issue in a termination petition
beyond any relevance to a claimant’s full recovery.” (Id. at 54a.)
             Thereafter, on June 2, 2016, Employer filed its Termination Petition,
alleging that Claimant had fully recovered from his work-related injury as of
May 24, 2016. (Id. at 261a.) On October 18, 2016, Claimant filed his Review
Petition, seeking to amend the description of his work-related injury in the NCP,
because his work-related injury was later diagnosed as more serious than “a
contusion and abrasion to [his] knees and back.” (Id.)
             Claimant testified before WCJ DiLorenzo at the hearing held on
July 13, 2016. (Id. at 64a.) At that time, Claimant testified that he injured his right
knee and low back on June 13, 2012, while working for Employer. (Id.) Claimant
explained that, in the six-to-seven months prior to the hearing, the treatment for his
work-related injury included spinal injections and physical therapy. (Id. at 65a-66a.)
Claimant explained further that he continues to experience a lack of strength in his


                                          2
knees, difficulty lifting things, an inability to stand for long periods, an inability to
sit for long periods, an inability to run or walk long distances, difficulty sleeping,
constant pain, low back stiffness, and general discomfort. (Id. at 67a-70a.) As a
result, Claimant did not believe that he has fully recovered from his work-related
injury. (Id. at 70a-71a.)
              Claimant also presented the deposition testimony of James F. Bonner,
M.D., who is board certified in physical medicine and rehabilitation.1 (Id. at 9a.)
Dr. Bonner testified that Claimant first consulted with him concerning the
work-related injury on June 18, 2012. (Id. at 9a.) At that time, Dr. Bonner diagnosed
Claimant with a lumbar sprain/strain and a right knee contusion strain and prescribed
a course of treatment for Claimant. (Id. at 9a-10a.) Dr. Bonner examined Claimant
again on January 16, 2013. (Id. at 10a.) At that time, Dr. Bonner made a number of
additional findings concerning Claimant’s condition, including:                  (1) Claimant
suffered chronic and ongoing pain; (2) an MRI of Claimant’s lumbar spine showed
an L4-L5 annular tear, a bulging disc, and some degenerative changes; and (3) an
MRI of Claimant’s right knee showed some evidence of effusion—i.e., water on the
knee—and a contusion. (Id. at 10a-11a.) Based on his findings with respect to
Claimant’s lumbar spine, Dr. Bonner referred Claimant to Michael Stanley, M.D., a
neurologist, who determined that the annular tear was consistent with an acute injury
and a right-sided disc herniation. (Id. at 11a-15a.) With respect to the injury to
Claimant’s right knee, Dr. Bonner referred Claimant to William Emper, M.D., an
orthopedic surgeon who, based on Claimant’s complaints of pain, administered three

       1
          The parties agreed that, rather than duplicating efforts from the previously litigated
termination petition, Dr. Bonner’s deposition testimony from January 29, 2014, in the proceedings
before WCJ Stokes would be submitted into evidence along with his updated deposition testimony
from April 5, 2017. In this opinion, we will discuss both of Dr. Bonner’s deposition testimonies
together.

                                               3
injections to Claimant’s right knee. (Id.) Dr. Bonner testified further that as of the
date of his January 16, 2013 examination of Claimant, he restricted Claimant from
performing full-time police duty and continued Claimant’s prescriptions for pain and
inflammation medication and outpatient physical therapy.                     (Id. at 11a-12a.)
Thereafter, Claimant continued to treat with Dr. Bonner for his lumbar spine and
right knee injuries through the date of Dr. Bonner’s April 5, 2017 deposition. (Id.
at 16a-24a, 134a-42a.) Throughout the course of his treatment of Claimant, Dr.
Bonner has restricted Claimant from returning to full-time police work and has
prescribed     outpatient     physical      therapy     and    lumbar      injections.        (Id.
at 16a-24a, 134a-36a.)
               When questioned about whether Claimant is capable of returning to
full-time police duties, Dr. Bonner testified that his opinion remains unchanged—
i.e., Claimant could not perform full-time, unrestricted, police duty because his
significant physical impairments preclude him from performing the essential duties
of a police officer. (Id. at 136a-40a.) Dr. Bonner opined that Claimant’s injuries are
permanent, and Claimant will require ongoing treatment in the form of medications
and injections. (Id. at 139a-41a.) Dr. Bonner further testified that he disagreed with
Dr. McHugh’s2 medical opinion that Claimant had fully recovered from his right
knee contusion and lumbar sprain/strain and could return to full-duty work as a
police officer. (Id. at 143a-49a.) Instead, Dr. Bonner opined that Claimant: (1) had
sustained, in addition to a lumbar sprain/strain and a right knee contusion, a
herniated disc at L5-S1, an annular tear at L5-S1 and L4-L5, an aggravation of a
preexisting right knee injury, and degenerative arthritis in his right knee; (2) required

       2
         Dennis P. McHugh, D.O., is an orthopedic surgeon who testified on Employer’s behalf,
as to whether, in his medical opinion, Claimant had fully recovered from his work-related injuries.
(See R.R. at 88a-89a.)

                                                4
further treatment for his work-related injuries; and (3) was not capable of returning
to full-duty police work without restrictions. (Id. at 144a-50a.)
             Employer presented the deposition testimony of Dr. McHugh, who
performed an independent medical examination of Claimant with respect to the
injury to Claimant’s right knee on March 17, 2016. (Id. at 89a-90a.) Upon physical
examination of Claimant’s right knee, Dr. McHugh found: (1) Claimant could fully
extend the knee; (2) there was no increase of fluid in the knee; (3) there was no
increased warmth or redness in the knee; (4) the knee was neutrally aligned and the
kneecap was stable; and (5) the kneecap did not grind when it went through an arc
of motion but tracked normally. (Id. at 90a.) Dr. McHugh noticed, however, that
when he pushed on Claimant’s right kneecap, Claimant experienced some
discomfort. (Id.) Further, Claimant experienced pain over the lateral joint line
during palpitation of the knee at 90 degrees. (Id.) Otherwise, Claimant had a normal
gait—i.e., a heel strike and follow through without a limp. (Id. at 90a-91a.) Based
upon his review of Claimant’s medical records, the history he obtained from
Claimant, and his physical examination, Dr. McHugh opined that Claimant had fully
recovered from the work-related right knee contusion as of the date of his
independent medical examination. (Id.)
             Dr. McHugh performed a second independent medical examination of
Claimant relative to Claimant’s low back injury on May 24, 2016. (Id.) Dr.
McHugh’s physical examination of Claimant’s low back revealed: (1) no palpable
spasms in the muscle tissue of the low back; (2) generalized and nonspecific pain
over both sacroiliac notches and both sciatic notches; (3) tightness with forward
flexion at 80 degrees; (4) no pain upon extension; (5) normal side bending and
rotation; and (6) normal sensation and strength. (Id. at 92a.) Based upon his review


                                          5
of Claimant’s medical records (including the MRI and EMG findings) and his
physical examination, Dr. McHugh opined that Claimant had fully recovered from
his lumbosacral sprain/strain as of the date of his independent medical examination,
required no further treatment, and could return to full-duty work without restrictions.
(Id. at 92a-93a.) Dr. McHugh further testified that he did not discover any evidence
that Claimant had sustained an acute disc injury at L4-L5 or L5-S1 or an annular tear
as a result of his June 13, 2012 work-related injury. (Id. at 93a.)
              By decision and order dated June 12, 2017, WCJ DiLorenzo granted
Employer’s Termination Petition and denied Claimant’s Review Petition. In doing
so, WCJ DiLorenzo summarized the witnesses’ testimony and made the following
credibility determinations:
              4. Claimant is credible to an extent, specifically about the
                 occurrence of the work injury, and isn’t credible with
                 respect to the alleged extent of the work injuries. Drs.
                 McHugh and Lubeck[3] are more credible and
                 persuasive than Dr. Bonner for several reasons, to
                 wit: 1.) Dr. McHugh, with a board certification in
                 orthopedic surgery, has better qualifications than Dr.
                 Bonner, with a board certification in physical medicine
                 and rehabilitation, for the determination and existence
                 of alleged orthopedic injuries as those of . . .
                 Claimant; 2.) Dr. Lubeck, as a board certified
                 electromyographer, has better qualifications than Dr.
                 Bonner, with a board certification in physical medicine
                 and rehabilitation, for the analyzation of
                 electromyograms and nerve conduction studies and
                 determination of alleged conditions on the basis of the
                 aforesaid test findings; 3.) Dr. McHugh’s examinations
                 of . . . Claimant were more comprehensive than the
       3
         Joseph S. Lubeck, D.O., is a medical doctor who is board certified in electromyography.
(R.R. at 212a.) Employer presented deposition testimony of Dr. Lubeck, who was only asked to
review Claimant’s medical records and issue a report based on his findings. (Id.) Dr. Lubeck did
not perform a physical examination of Claimant, and, therefore, had no medical opinion as to
whether Claimant had fully recovered from his work-related injury. (Id. at 230a-31a.)

                                               6
                 described examinations by Dr. Bonner with Dr.
                 McHugh’s performance of a myriad of tests of . . .
                 Claimant and without the performance of the same tests
                 by Dr. Bonner; 4.) The opinions of Drs. McHugh and
                 Lubeck are supported by the clinical examination
                 results and objective findings on the diagnostic tests of
                 . . . Claimant; 5.) Drs. McHugh and Lubeck gave
                 rational explanations for their opinions on the bases of
                 objective findings; [and] 6.) Dr. McHugh’s testimony
                 established Dr. McHugh’s extensive review of medical
                 records with regard to . . . Claimant in contrast to Dr.
                 Bonner, with no testimony with respect to Dr. Bonner’s
                 review of the same reviewed records as those by Dr.
                 McHugh.

(WCJ DiLorenzo Decision at 4.) Based on these credibility determinations, WCJ
DiLorenzo concluded that Employer met its burden of proving that Claimant had
fully recovered from his work-related injury as of May 24, 2016. (Id. at 18.) WCJ
DiLorenzo further concluded: (1) Claimant did not meet his burden of proving that
there was a material mistake in the NCP concerning the description of his
work-related injury; and (2) Claimant was otherwise precluded from litigating this
issue—i.e., the description of the work-related injury—under the doctrines of
collateral estoppel and res judicata because the issue was fully litigated before WCJ
Stokes during the prior petition to terminate benefits. (Id.) Claimant appealed WCJ
DiLorenzo’s decision to the Board, which affirmed. Claimant now petitions this
Court for review.
             On appeal,4 Claimant argues that the Board erroneously affirmed WCJ
DiLorenzo’s decision because WCJ DiLorenzo committed an error of law when she
denied Claimant’s Review Petition on the basis of res judicata. Claimant also

      4
          This Court’s review is limited to a determination of whether an error of law was
committed, whether findings of fact are supported by substantial evidence, or whether
constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa.
C.S. § 704.

                                            7
contends that the Board committed an error of law by affirming WCJ DiLorenzo’s
decision granting Employer’s Termination Petition because WCJ DiLorenzo failed
to address the full extent of the work-related injury as it was implicitly redefined in
previous litigation before WCJ Stokes.5
                   As to the Review Petition, Claimant argues that WCJ DiLorenzo’s
decision to deny Claimant’s Review Petition on the basis of res judicata is erroneous
as a matter of law. Specifically, Claimant argues that he filed the Review Petition
in order to clarify WCJ Stokes’s supposed amendment of the work-related injury
and that, pursuant to this Court’s decision in Knouse v. Workers’ Compensation
Appeal Board (G.O.D., Inc.), 886 A.2d 329 (Pa. Cmwlth. 2005), such a request is
not barred by res judicata or collateral estoppel. In response, Employer contends
that there is substantial evidence of record to support WCJ DiLorenzo’s decision to
deny the Review Petition.
                   When a party files a review petition seeking to modify or amend an
incorrect description of a work-related injury in an NCP, the burden is on the party
seeking modification to prove that “a material mistake of fact or law was made at
the time the NCP was issued or that the injury has changed.” ESAB Welding &
Cutting Products v. Workers’ Comp. Appeal Bd. (Wallen), 978 A.2d 399, 404 (Pa.
Cmwlth. 2009), appeal denied, 991 A.2d 314 (Pa. 2010).
                   In workers’ compensation proceedings, the WCJ is the ultimate finder
of fact. Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works),
862 A.2d 137, 143 (Pa. Cmwlth. 2004). As factfinder, matters of credibility,
conflicting medical evidence, and evidentiary weight are within the WCJ’s exclusive


          5
              For purposes of our analysis, we have reversed the order of Claimant’s arguments on
appeal.

                                                  8
province.   Id.   In determining whether the WCJ’s findings are supported by
substantial evidence, we may not reweigh the evidence or the credibility of the
witnesses but must simply determine whether the WCJ’s findings have the requisite
measure of support in the record as a whole. Elk Mountain Ski Resort, Inc. v.
Workers’ Comp. Appeal Bd. (Tietz, deceased), 114 A.3d 27, 32 n.5 (Pa.
Cmwlth. 2015). It is irrelevant whether there is evidence to support a contrary
finding; if substantial evidence supports the WCJ’s necessary findings, we may not
disturb those findings on appeal. Williams, 862 A.2d at 143-44.
             The doctrine of res judicata incorporates two distinct principles of
preclusion—collateral estoppel and technical res judicata. Henion v. Workers’
Comp. Appeal Bd. (Firpo & Sons, Inc.), 776 A.2d 362, 365 (Pa. Cmwlth. 2001).
Both principles apply to prevent re-litigation of claims and issues.         Weney v.
Workers’ Comp. Appeal Bd. (Mac Sprinkler Systems, Inc.), 960 A.2d 949, 954 (Pa.
Cmwlth. 2008), appeal denied, 971 A.2d 494 (Pa. 2009). Parties will be barred from
re-litigating claims if technical res judicata, also known as claim preclusion, applies.
Firpo & Sons, Inc., 776 A.2d at 365. Technical res judicata is found where there is:
“(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.” Mac Sprinkler Systems, Inc.,
960 A.2d at 954. Where collateral estoppel, also known as issue preclusion, applies,
parties are barred from re-litigating issues. Pucci v. Workers’ Comp. Appeal Board
(Woodville State Hosp.), 707 A.2d 646, 647-48 (Pa. Cmwlth. 1998). Collateral
estoppel is found where: “(1) the issue decided in the prior case is identical to the
one presented in the later case; (2) there was a final judgment on the merits; (3) the
party against whom the doctrine is asserted was a party or in privity with a party in


                                           9
the prior case and had a full and fair opportunity to litigate the issue; and (4) the
determination in the prior proceeding was essential to the judgment.” Id. at 648.
             At the outset we note that G.O.D., Inc. is not applicable to the situation
before us. In G.O.D., Inc., a claimant sustained work-related injuries as a result of
being involved in a vehicular accident. The same WCJ ultimately issued a number
of decisions concerning the work-related injury.
             In the WCJ’s first decision, he granted the claimant’s claim petition and
denied the employer’s termination petition by accepting medical testimony
concluding that the claimant sustained a sprained left ankle and low back and a
cervical strain. In this first decision, the WCJ also found that medical testimony
concluding that the claimant suffered a disc herniation was not persuasive. In his
second decision, the WCJ granted the claimant’s reinstatement petition and denied
the employer’s second termination petition.          In support of the claimant’s
reinstatement petition, the claimant presented the deposition testimony of his second
treating physician who opined that the claimant’s condition had worsened and that
his lumbar disc strain was an annular disruption.        The treating physician also
explained that a sprained low back can be described as an annular disruption and is
not a disc herniation. The WCJ found the treating physician’s medical testimony
persuasive and, therefore, clarified the description of the injury by making specific
findings of fact as to the presence of an annular disruption as part of the low back
sprain. The employer appealed the WCJ’s decision to the Board, which concluded
that the WCJ was precluded from amending the description of the injury because the
parties previously litigated that issue.
             On appeal to this Court, we determined that the WCJ merely clarified
the description of the work-related injury as it was described in his first decision—


                                           10
i.e., among other injuries, a low back sprain that did not include a disc herniation.
G.O.D., Inc., 886 A.2d at 335.     The WCJ was, therefore, not precluded from
clarifying the description of the work-related injury by the doctrine of res judicata.
Id.
             Contrary to Claimant’s belief, our decision in G.O.D., Inc. does not
stand for the proposition that res judicata does not bar attempts by claimants to
clarify the description of their work-related injuries. Instead, we concluded that
where an injury description has been defined by previous litigation, a WCJ may
clarify—and not modify—said description in later litigation. Here, there has not
been a clarification of the description of Claimant’s work-related injury because that
issue has never been litigated. Claimant argues that the following statement by WCJ
Stokes amended the description of the work-related injury: “Dr. Bonner noted that
. . . an MRI had been performed that showed an L4-[L]5 annular tear with bulging
disc and a herniated disc at L5-S1[.]” (R.R. at 49a; Finding of Fact (F.F.) No. 8.)
The quoted statement, however, is merely a re-iteration of Dr. Bonner’s medical
testimony. WCJ Stokes credited Dr. Bonner’s testimony but did not adopt any other
definition of the work-related injury; rather, he simply found Dr. Bonner credible
and convincing in that Claimant had not recovered from his work-related injury.
(R.R. at 49a; F.F. No. 10 (“Dr. James Bonner is credible and convincing that
Claimant remains disabled from employment as it relates to his employment incident
of June 13, 2012.”).)
             Further, the claim before WCJ Stokes was a termination petition, which
merely required a determination as to whether Claimant was fully recovered from
the work-related injury as it was described in the NCP. WCJ Stokes’s determination
did not require him to consider whether the description of the work-related injury


                                         11
should be amended, and he did not do so. Accordingly, the description of the
work-related injury was never amended or clarified and has, therefore, not been
litigated. Consequently, we agree that WCJ DiLorenzo committed an error of law
by concluding that Claimant was precluded from relief by the doctrines of technical
res judicata and/or collateral estoppel because the issue concerning the description
of Claimant’s work-related injury was never before WCJ Stokes.
             Next we address Claimant’s contention that the Board committed an
error of law by affirming WCJ DiLorenzo’s decision granting Employer’s
Termination Petition because WCJ DiLorenzo failed to address the full extent of the
work-related injury as it was implicitly redefined in previous litigation before WCJ
Stokes. In response, Employer contends that there is substantial evidence of record
to support WCJ DiLorenzo’s decision to grant Employer’s Termination Petition.
             Based on our discussion above, however, it is clear that WCJ
DiLorenzo limited her consideration of whether Claimant fully recovered from his
work-related injury to the initial description of Claimant’s injury due to her mistaken
belief that she was precluded from considering whether the description should be
amended. Both petitions must be resolved anew, and a remand is in order.
             On remand, WCJ DiLorenzo should consider Claimant’s Review
Petition in light of the fact that the description of Claimant’s work-related injury has
not been litigated and determine the proper description of the work-related injury
before ruling on Employer’s Termination Petition.




                                          12
            Accordingly, we vacate the Board’s order and remand this matter to the
Board with instruction that it remand the matter to WCJ DiLorenzo for the issuance
of a new decision and order in accordance with this opinion.




                                         P. KEVIN BROBSON, Judge

Judge Fizzano Cannon did not participate in the decision of this case.




                                        13
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William Tobin,                           :
                         Petitioner      :
                                         :
            v.                           :   No. 974 C.D. 2018
                                         :
Workers’ Compensation Appeal             :
Board (Upper Darby Township),            :
                      Respondent         :



                                      ORDER


            AND NOW, this 31st day of May, 2019, the order of the Workers’
Compensation Appeal Board is VACATED and the matter is REMANDED to the
Board with instruction that it remand the matter to the Workers’ Compensation
Judge for the issuance of new findings of fact and conclusions of law.
            Jurisdiction relinquished.




                                         P. KEVIN BROBSON, Judge
