          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Jackson, Jr.,                      :
                                        : No. 228 C.D. 2016
                          Petitioner    : Submitted: July 8, 2016
                                        :
                     v.                 :
                                        :
Workers' Compensation Appeal            :
Board (Radnor School District           :
and ACTS Retirement Community),         :
                                        :
                          Respondents   :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION
BY JUDGE WOJCIK                                    FILED: October 19, 2016


             John Jackson, Jr. (Claimant) petitions for review of the January 21,
2016 order of the Workers’ Compensation Appeal Board (Board), which reversed
the decision of a workers’ compensation judge (WCJ) and held that the petition of
Radnor School District (Radnor) to join ACTS Retirement Life Community
(ACTS) as an additional defendant was untimely filed. We affirm.
             On September 4, 2002, Claimant injured his knee while in the course
and scope of his employment as a security guard for Radnor. Radnor issued a
notice of compensation payable (NCP) acknowledging an injury to Claimant’s left
knee in the nature of torn cartilage. Reproduced Record (R.R.) at 3a. At the time
of the work-injury, Claimant was concurrently employed as a security guard with
ACTS, but his additional earnings were not reflected in the NCP. On September 7,
2004, the parties entered into a supplemental agreement documenting Claimant’s
concurrent employment, the recalculation of his average weekly wage, periods of
total and partial disability, and his return to work at ACTS on July 21, 2003. R.R.
at 4a-5a.
              On April 1, 2013, Claimant filed a reinstatement petition against
Radnor, alleging a worsening of his condition as of that date. Section 413(a) of the
Workers’ Compensation Act (Act).1 Radnor filed an answer denying Claimant’s
allegations and noting that he soon would receive the maximum 500 weeks of
partial disability benefits allowed under Section 306(b) of the Act.2 R.R. at 6a-10a.
              At a May 6, 2013 hearing, Claimant testified that he injured his left
knee on September 4, 2002, while working for Radnor at a football game.
Claimant stated that he never returned to his position at Radnor. However, he
returned to his concurrent employment with ACTS from December 15, 2002, to
February 5, 2003, and from July 21, 2003, until March 31, 2013. R.R. at 75a-76a.
              Claimant explained that his supervisor at ACTS allowed him to work
modified duties, so that his job there was more sedentary; in his position as a
security guard at ACTS, Claimant did not have patrol duties, but only worked as a
stationary guard sitting at the gate house. He stated when ACTS adopted new job


       1
         Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772. Section 413(a) authorizes the
reinstatement of disability benefits “upon proof that the disability of an injured employe has
increased [or] recurred . . . .” Under workers’ compensation law, the term “disability” means a
loss of earning power. Landmark Constructors, Inc. v. Workers’ Compensation Appeal Board
(Costello), 747 A.2d 850, 854 (Pa. 2000).

       2
          Section 306(b) of the Act states that “[i]n no event shall the total number of weeks of
partial disability exceed five hundred weeks for any injury or recurrence thereof, regardless of
the changes in status in disability that may occur.” 77 P.S. §512. Radnor stopped paying partial
disability benefits to Claimant effective April 20, 2013.


                                               2
requirements in February 2013, he was told that he could no longer work modified
duty. Claimant did not believe that he could perform the additional duties, such as
walking three hours per shift and climbing three or four flights of stairs several
times in each of six buildings, and ACTS terminated his employment. R.R. at 80a-
95a.
             Claimant testified that he had arthroscopic surgery on his left knee in
late 2002 or early 2003. He said that he returned to his surgeon, Dr. Bosacco, in
2010, when the pain in his left knee began to worsen with increased physical
activity. R.R. at 77a-82a. Claimant stated that, on a scale of one to ten, his pain
rating would typically be at a four or five but would rise to an eight, nine, or ten
“as [his] level of activity increases depending on days and shifts or whatever. The
more activity I have, the more pain I have in general . . . .” R.R. at 79a.
             Claimant also testified that his symptoms were essentially stable until
the 2012-2013 holidays. Noting that Dr. Bosacco had passed away, Claimant
stated that he sought treatment for his knee pain with William Murphy, D.O., on
April 3, 2013. R.R. at 89a-90a.
             Dr. Murphy testified by way of deposition on October 2, 2013. Based
on his physical examination of Claimant, Claimant’s medical history, and the
results of x-rays and an MRI, Dr. Murphy concluded that Claimant had advanced
degenerative joint disease that was aggravated by his original work injury and his
subsequent work activities at ACTS.            Dr. Murphy reviewed a “Position
Description” for the security guard position, updated by ACTS as of March 2012.
R.R. at 141a-43a. The document, which had blank spaces for signatures of an
employee and human resources approval, summarized the job duties of a security
guard as including patrolling the buildings and grounds and monitoring the


                                           3
gatehouse. The Position Description also set forth a number of physical demands,
such as lifting or carrying 50 pounds or more; walking for at least 90 minutes;
stooping, kneeling, crawling, and crouching; an ability to stand and walk for
extended periods; and frequent use of stairs. Id.
               Dr. Murphy stated that Claimant’s testimony concerning his job duties
was consistent with that written description, and he opined that Claimant was not
able to perform the duties as described.       Further, Dr. Murphy believed that
Claimant was disabled from all employment. Dr. Murphy stated that conservative
treatment, including therapy and the use of a knee brace, had helped Claimant
maintain his condition, but he expected that Claimant eventually would need
additional surgery. R.R. at 108a-17a.
               On cross-examination, however, Dr. Murphy acknowledged that
Claimant actually testified that he did not perform many of the duties on the
written job description, and, in fact, that Claimant’s job only required him to sit in
a booth at the entrance to the employer’s property. Dr. Murphy clarified that his
belief that Claimant could no longer perform that job was based on his
understanding that ACTS would be modifying his job duties. Additionally, Dr.
Murphy testified that his findings on examination were consistent with Claimant’s
age, weight, and previous arthroscopic procedure, and that a radiologist report of
an April 2013 MRI found no change from a prior, post-meniscectomy study. R.R.
at 121a-27a.
               On October 22, 2013, Radnor filed a petition for joinder against
ACTS, alleging that Dr. Murphy related Claimant’s current disability in whole or
in part to Claimant’s concurrent employment with ACTS. ACTS filed an answer




                                          4
denying Radnor’s allegations and objecting to the joinder petition as untimely
filed. Claimant joined in ACTS’ objection.
             Subsequently, Radnor submitted the March 26, 2014 deposition
testimony of Gene D. Levin, M.D., a board-certified orthopedic surgeon who
performed an independent medical examination of Claimant on June 12, 2013.
The history Claimant provided to Dr. Levin included suffering a work injury at
Radnor in September 2002; not returning to work with that employer; continuing
to work a sedentary position as a security guard at ACTS; and ceasing that
employment in March 2013 when the physical requirements of the job were
changed. Based on that history, his review of Claimant’s medical records, and his
physical examination of Claimant, Dr. Levin diagnosed Claimant as status post-
arthroscopic surgery for work related left medial meniscus tear with a progression
of preexisting degenerative arthritis thereafter. Dr. Levin testified that in light of
Claimant’s arthritic knee and associated pain, he was limited in his ability to walk
and, consequently, Dr. Levin approved him only for sedentary work. Dr. Levin
added that his review of Dr. Murphy’s records did not change his opinions. R.R. at
153a-55a.3
             The WCJ found Claimant’s testimony credible to establish that his
increased knee pain was related to his work at ACTS but not to his injury on
September 4, 2002. The WCJ’s Finding of Fact No. 18 states:

             This Judge has carefully reviewed the evidence of
             record[,] in particular Claimant’s testimony[,] and finds
             that [C]laimant’s testimony is credible in part and not

      3
           Radnor also submitted the deposition testimony of William C. Ford, a certified
rehabilitation counselor, who drafted an analysis of the security job position based on
information he obtained from ACTS’ security manager. R.R. at 172a-97a.


                                           5
             credible in part. Claimant’s testimony is credible that as
             he continued to work at ACTS, the pain in his left knee
             increased over the years. Claimant is also credible that
             he could not do the increased duties proposed by the job
             change at ACTS. Even though Claimant did not perform
             those duties[,] given the increase in his pain over the
             years by the performance of his regular job duties at
             ACTS, Claimant was in a position to know he could not
             perform the increased job duties. Significant in this
             determination is this Judge’s observation of Claimant’s
             composure and demeanor during his testimony. To the
             extent that Claimant testified that he had increased pain
             over the years from performing his job duties at ACTS
             and that his pain level increased to the point where he
             did not feel that he could perform the new job duties
             proposed by ACTS, this Judge finds his testimony
             credible. To the extent that Claimant relates this increase
             in pain level to his original slip and fall on September 4,
             2002, this Judge finds his testimony not credible. When
             Claimant’s testimony is viewed as a whole, it is clear that
             his continued working at ACTS and his job duties at
             ACTS increased his pain level. This Judge finds that this
             aggravation of his underlying degenerative joint disease
             constitutes a new injury and is not a recurrence of his
             September 4, 2002 injury.
WCJ’s Finding of Fact No. 18 (emphasis added).
             Similarly, the WCJ found Dr. Murphy’s testimony credible to
establish that Claimant’s left knee was aggravated by his continued work at ACTS,
but not credible to the extent that he related Claimant’s current disability to the
original injury.   The WCJ credited Dr. Levin’s testimony insofar as it was
consistent with Dr. Murphy’s credited testimony. WCJ’s Findings of Fact Nos. 19,
20.
             The WCJ found that the petition for joinder filed on October 22, 2013,
was timely because “the evidence on which it is based was known to the parties at
Dr. Murphy’s [October 2, 2013] deposition.” WCJ’s Finding of Fact No. 5. The


                                         6
WCJ noted that ACTS was given the opportunity to cross-examine any witness
and/or present other evidence in its defense but did not do so. Id.
               Based on these findings, the WCJ concluded that Claimant’s current
disability was a new injury that resulted from an aggravation of his pre-existing
degenerative joint disease and was not causally related to his 2002 injury. The
WCJ granted Radnor’s petition for joinder, treated Claimant’s reinstatement
petition as a claim petition against ACTS, granted that petition, and ordered ACTS
to pay Claimant total disability benefits, including payments for reasonable and
necessary medical treatment, effective March 31, 2013.
               ACTS appealed to the Board, specifically challenging 20 of the
WCJ’s Findings of Fact as unsupported by the evidence and contrary to Claimant’s
testimony. ACTS further asserted that the WCJ erred as a matter of fact and law in
overruling ACTS’ and Claimant’s objections to the joinder petition and finding
that the joinder petition was timely filed. R.R. at 52a-53a.
               Relying on Pennsylvania Uninsured Employers Guaranty Fund v.
Workers’ Compensation Appeal Board (Dudkiewicz), 89 A.3d 330 (Pa. Cmwlth.
2014), the Board held that Claimant’s testimony on May 6, 2013, which attributed
an increase in his pain to an increase in his physical duties, was evidence regarding
a reason to join ACTS that triggered the 20-day period for filing a joinder petition,
34 Pa. Code §131.36, and concluded that Radnor’s joinder petition was untimely. 4
Accordingly, the Board reversed the WCJ’s order.




      4
          The Board did not address ACTS’ remaining arguments.


                                             7
             On appeal to this Court,5 Claimant argues that the Board erred in
reversing the WCJ’s determination and holding that the joinder petition was
untimely filed. We disagree.
             As we observed in Dudkiewicz, the regulations governing practice and
procedure before workers’ compensation judges set forth requirements for all
pleadings. The regulation at 34 Pa. Code §131.36 governs petitions for joinder and
states in relevant part as follows:

             §131.36. Joinder
                 (a) A party desiring to join another defendant to assert
             a claim relevant to the pending petition may do so as a
             matter of right by filing a petition for joinder.
                 (b) A petition for joinder shall set forth the identity of
             employers and insurance carriers sought to be joined and
             the reasons for joining a particular employer or insurance
             carrier as well as the specific facts and the legal basis for
             the joinder.
                                        * * *
                 (d) An original and the number of copies specified on
             the Bureau petition for joinder form shall be filed no
             later than 20 days after the first hearing at which
             evidence is received regarding the reason for which
             joinder is sought, unless the time is extended by the
             judge for good cause shown.
                 (e) The petition for joinder shall be filed with the
             Bureau and an original of any answer shall be filed with
             the office of the judge to whom the case has been
             assigned.
                 (f) An answer to a petition for joinder shall be filed in
             accordance with section 416 of the act (77 P.S. §821)
      5
          Our scope 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
              within 20 days after the date of assignment by the Bureau
              to the judge and may include a motion to strike.
                                          * * *
                  (i) After joinder, the original petition shall be deemed
              amended to assert a claim of the claimant against an
              additional defendant. The additional defendant is liable to
              any other party as the judge orders. The additional
              defendant shall have the same rights and responsibilities
              under this chapter as the original defendant.
34 Pa. Code §131.36 (emphasis added). Thus, in relevant part, the regulation
provides that a joinder petition must be filed no later than 20 days after the first
hearing at which evidence regarding the reason for joinder is sought and that a
WCJ can extend the time to file a joinder petition for good cause shown. Id.
              In Dudkiewicz, the claimant filed a claim petition against Michael
Rossini Construction Company (Rossini) and the Pennsylvania Uninsured
Employers Guaranty Fund (UEGF),6 asserting that he suffered injuries during the
course of his employment with Rossini when he slipped and fell off a roof. After
several hearings, UEGF filed joinder petitions naming two additional parties as
additional employers. The WCJ dismissed both petitions as untimely, noting that
they were filed more than 20 days after the claimant was questioned regarding the
relationships among the purported employers. The Board affirmed the WCJ’s
finding that both joinder petitions were untimely, explaining that the claimant’s
testimony at the first hearing described “a vertical chain of contractual
relationships” between the identified employers. 89 A.3d at 336.

       6
          UEGF is a separate fund in the state treasury, established in section 1602 of the Act,
added by the Act of November 9, 2006, P.L. 1362, 77 P.S. §2702, for the exclusive purpose of
paying workers’ compensation benefits due to claimants and their dependents where the
employer liable for the payments was not insured at the time of the work injury. Insurers and
self-insured employers are assessed as necessary to pay claims and the cost of administering the
fund. Section 1607 of the Act, 77 P.S. §2707.


                                               9
            On appeal, we rejected UEGF’s argument that the claimant’s
testimony did not constitute substantial evidence that would support a finding that
another party was a statutory employer. In doing so, we emphasized that the 20-
day time period “begins when evidence is presented regarding the reason for
which joinder is sought, not evidence establishing a reason for requesting joinder.”
Id. We then concluded that the information elicited from the claimant at the first
hearing “was sufficient to alert UEGF to the existence of other parties who likely
were, or at least may have been, in a contractual relationship with [the claimant’s]
uninsured employer.” Id.
            Here, in finding that the joinder petition was timely filed, the WCJ
observed that “the evidence on which the petition for joinder was based was known
to the parties at Dr. Murphy’s deposition.”       WCJ’s Finding of Fact No. 5
(emphasis added). Notably, the WCJ did not indicate that the relevant evidence
was first known to the parties at this time. Thus, it is not clear whether the WCJ
understood that the 20-day period begins to run from “the first hearing at which
evidence is received regarding the reason for which joinder is sought.” 34 Pa.
Code §131.36.
            In any event, Claimant testified on May 6, 2013, and, as summarized
by the WCJ, Claimant’s testimony credibly established that “he had increased pain
over the years from performing his job duties at ACTS . . . .” WCJ’s Finding of
Fact No. 18. Claimant has not challenged the WCJ’s findings on appeal, and those
findings reflect that evidence regarding the reason for joinder was received at the




                                        10
May 6, 2013 hearing. Thus, the Board properly held that the joinder petition was
untimely filed and reversed the WCJ’s decision.7




       7
          Alternatively, citing Strattan Homes, Inc. v. Workmen’s Compensation Appeal Board
(Hollis), 633 A.2d 1250 (Pa. Cmwlth. 1993), and Krumins Roofing & Siding v. Workmen’s
Compensation Appeal Board (Libby), 575 A.2d 656 (Pa. Cmwlth. 1990), Claimant argues that
the WCJ did not abuse her discretion in permitting joinder because ACTS was not prejudiced by
the WCJ’s ruling. While Claimant suggests that the decision to grant or deny a petition for
joinder is a matter for the WCJ’s discretion, the regulation at 34 Pa. Code §131.36 allows a party
to join another defendant as a matter of right, subject to the requirements of the regulation,
including the requirement that the petition is timely filed. The regulation does afford a WCJ
discretion to extend the filing deadline for good cause shown, but Radnor did not assert good
cause or request an extension of time to file the joinder petition.
                We recognize that the Court appears to have applied an abuse of discretion
standard in Krumins to uphold the denial of a joinder petition, and, relying on that case, we stated
generally in Dudkiewicz, 89 A.3d at 335, and Strattan, 633 A.2d at 1257, that joinder is within
the discretion of a WCJ/referee. In Krumins, the referee explained that the employer’s July 1986
request for joinder could have been made in October 1985 and that the claimant would be
seriously prejudiced by further delay. However, neither the referee nor this Court made any
reference to the regulation at 34 Pa. Code §131.36. In Strattan, the claimant argued that the late
joinder of an additional defendant violated his right to due process. In contrast to the facts here,
the additional defendant did not challenge the alleged late joinder in Strattan and, as in Krumins,
the regulation at 34 Pa. Code §131.36 was not addressed. In Dudkiewicz, we acknowledged that
under §131.36, “[j]oinder is permitted as of right, so long as a petition for joinder is filed within
the prescribed time period . . . .” 89 A.3d at 335. Noting that a WCJ may waive or modify the
deadline for good cause, we stated that “[t]he decision to grant or deny a petition for joinder is
within the discretion of the WCJ.” Id. However, we specifically examined the language of 34
Pa. Code §131.36(d), which sets forth the 20-day time limit, and held that the WCJ “neither erred
nor abused his discretion” in denying an untimely-filed petition. 89 A.3d at 330. We conclude
that these decisions are not inconsistent with our holding in this case, and we emphasize that the
regulation at 34 Pa. Code §131.36 circumscribes the WCJ’s discretionary authority by allowing
joinder as a matter of right if the requirements of the regulation are satisfied.


                                                11
Accordingly, we affirm the Board’s order.




                        MICHAEL H. WOJCIK, Judge




                          12
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Jackson, Jr.,                        :
                                          : No. 228 C.D. 2016
                          Petitioner      :
                                          :
                     v.                   :
                                          :
Workers' Compensation Appeal              :
Board (Radnor School District             :
and ACTS Retirement Community),           :
                                          :
                          Respondents     :


                                       ORDER


             AND NOW, this 19th day of October, 2016, the January 21, 2016
order of the Workers’ Compensation Appeal Board is affirmed.




                                        __________________________________
                                        MICHAEL H. WOJCIK, Judge
