           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scott Rosenberry,                            :
                            Petitioner       :
                                             :
              v.                             :    No. 446 C.D. 2019
                                             :    Submitted: July 26, 2019
Workers' Compensation Appeal                 :
Board (Ramsey Construction, LLC),            :
                       Respondent            :

BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ROBERT SIMPSON, Judge1
              HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                   FILED: November 22, 2019

              Scott Rosenberry (Claimant) petitions for review of an adjudication of
the Workers’ Compensation Appeal Board (Board) holding that Claimant’s review
petition was barred by res judicata. Claimant contends the Board erred because the
claims in his review petition were not decided in an earlier proceeding on his
reinstatement and review petitions. Discerning no error by the Board, we affirm.
              Claimant worked as a laborer for Ramsey Construction, LLC
(Employer).        On June 4, 2012, while dumping construction debris from a
wheelbarrow, he sustained a back injury. Employer issued a Notice of Temporary
Compensation Payable (NTCP), acknowledging the injury as a thoracolumbar back
strain or sprain. Pursuant to the Workers’ Compensation Act (Act),2 Claimant filed
a claim petition. Thereafter, Employer issued a medical-only Notice of


1
  This matter was assigned to this panel before September 1, 2019, when Judge Simpson assumed
the status of senior judge.
2
  Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
Compensation Payable (NCP) for the work injury acknowledged in the NTCP.
Claimant amended his claim petition to make it a reinstatement petition and also
filed a review petition to add a thoracic disc herniation to the description of the work
injury.
             The reinstatement and review petitions were assigned to WCJ Pamela
Briston. In support of his review petition, Claimant offered the deposition testimony
of his family doctor, Joanna M. Brady, M.D. She testified that prior to the work
injury, Claimant suffered chronic pain syndrome for brachialplexus of the shoulder
and preexisting lumbar pain. In 2012, Dr. Brady ordered a magnetic resonance
imaging (MRI) of Claimant’s spine, and it showed a “right paracentral herniated
nucleus pulposus, although subtle it is encroaching on the right side of the cord on
T-9, T-10L[,] and minimul bulging on the disc at T-7, T-8 levels[.]”             Brady
Deposition, 1/11/2013, at 14; Reproduced Record at 412a (R.R. __). With respect
to the thoracic disc herniation on the MRI report, Dr. Brady testified that it “could
have occurred at any time” and she could not be sure it related to the work injury.
Brady Deposition at 29; R.R. 415a. Dr. Brady opined that Claimant could not return
to his position with Employer, but was capable of performing sedentary work. Dr.
Brady’s restrictions were based on Claimant’s subjective complaints of pain.
             Employer presented the testimony of Lucian P. Bednarz, M.D., who
completed an independent medical evaluation (IME) of Claimant on August 17,
2012. Dr. Bednarz found that Claimant suffered a thoracolumbar sprain or strain.
He believed that Claimant would reach full recovery in six weeks and that Claimant
was capable of doing medium-duty work until he reached full recovery. Dr. Bednarz
testified that the MRI did not indicate a stenosis or any condition that needed
treatment. Rather, the MRI showed a nearly normal lumbar spine.


                                           2
               The WCJ granted Claimant’s reinstatement petition. In her decision,
WCJ Briston found, in relevant part, as follows:

               Based upon a review of the foregoing, as well as all evidence of
               record, I find that [Claimant] has met his burden of proof in the
               reinstatement petition.
               a. I accept the testimony of [Claimant] as credible that he
               sustained a low back injury or thoracolumbar myoligamentous
               sprain/strain o[n] June 4, 2012.

               b. I accept the opinions of Dr. Bednarz as credible regarding
               the description of injury, and I note that Dr. Brady could not state
               that the herniation shown on the MRI was related to the work
               injury, as it could have occurred at any time.

               c. As far as [Claimant’s] ability to work as of September,
               2012, I accept the opinions of Dr. Brady as more credible than
               Dr. Bednarz at that time regarding [Claimant’s] work
               restrictions[.]

WCJ Briston Decision, 8/27/2013, at 5, Finding of Fact No. 12. In granting
Claimant’s reinstatement petition, WCJ Briston did not make any reference to
Claimant’s review petition. Neither party appealed WCJ Briston’s decision.
               On April 23, 2014, Employer filed a termination petition, asserting that
Claimant had fully recovered from his work injury and could return to work without
restrictions as of March 17, 2014. Claimant filed a second review petition seeking
to add a thoracic disc herniation to the description of his work injury. Employer
argued that Claimant’s second review petition was barred by the doctrine of res
judicata. The petitions were assigned to WCJ Brian Eader.3



3
 Employer also filed a petition for review of a utilization review determination, which was denied
by WCJ Eader and not appealed to the Board.
                                                3
           Claimant presented the testimony of his chiropractor, Gordon Kaiser,
D.C., who began treating Claimant on June 8, 2012. Dr. Kaiser testified that the
2012 MRI showed a right-sided herniation at the T7-8 or T8-9 disc level and opined
that the herniation was caused by Claimant’s work injury. A second MRI done in
2014 showed the 2012 herniation and additional disc degeneration. Dr. Kaiser
diagnosed Claimant with a work-related disc protrusion with myelopathy and
continued muscle spasm. Dr. Kaiser did not believe Claimant could return to his
pre-injury job but was capable of sedentary work.
             Dr. Brady also testified. She explained that at the time of the deposition
for the 2012 proceeding, she was unable to determine that the thoracic disc
herniation shown on the 2012 MRI was work related. However, due to the length of
time that had passed without improvement in Claimant’s symptoms, she now
believed that Claimant’s work injury caused the thoracic disc herniation.
             Employer presented the testimony of Arnold Berman, M.D., an
orthopedic surgeon, who did an IME of Claimant on March 17, 2014. Dr. Berman
opined that Claimant’s accepted work injury had resolved because no objective
manifestations of injury were found in his IME. Dr. Berman rejected the 2012 MRI
report of disc bulge and herniation because his clinical examination done nearly two
years later could not confirm them.
             WCJ Eader rejected Employer’s argument that the review petition was
barred by res judicata. WCJ Briston had granted Claimant’s reinstatement petition
without addressing Claimant’s review petition. Because a final ruling was never
issued on Claimant’s first review petition, the second review petition was not barred
by res judicata.




                                          4
                 On the merits, WCJ Eader credited the opinions of Drs. Kaiser and
Brady and rejected the opinion of Dr. Berman. Accordingly, WCJ Eader denied
Employer’s termination petition and granted Claimant’s second review petition,
amending the description of the work injury to include a thoracic disc herniation.
                 Employer appealed to the Board, arguing that WCJ Eader erred in
rejecting its res judicata defense to Claimant’s review petition.4 The Board agreed.
It observed that WCJ Briston specifically relied on Dr. Brady’s admission that the
thoracic disc herniation “could have occurred at any time” and was unable to relate
it to Claimant’s work injury. Board Adjudication, 12/29/2016, at 3 (quoting WCJ
Briston Decision, 8/27/2013, at 4, Finding of Fact No. 5). Further, WCJ Briston
found that Claimant’s work injury was a “thoracolumbar myoligamentous
sprain/strain.”       Board Adjudication, 12/29/2016, at 3 (quoting WCJ Briston
Decision, 8/27/2013, at 6, Finding of Fact No. 7). Although WCJ Briston’s decision
did not expressly address Claimant’s review petition, it accepted Dr. Bednarz’s
opinion that the description of the injury should not be expanded. The Board held
that Claimant should have appealed WCJ Briston’s decision limiting his work injury
to a sprain.
                 Claimant petitioned for this Court’s review. In Rosenberry v. Workers’
Compensation Appeal Board (Ramsey Construction, LLC) (Pa. Cmwlth., No. 67
C.D. 2017, filed December 20, 2017), we concluded that we could not say whether
WCJ Briston had addressed Claimant’s review petition. Accordingly, we vacated
the Board’s adjudication and remanded the matter to a WCJ for findings of fact and
conclusions of law so that it could be determined whether res judicata precluded
Claimant’s second review petition.


4
    Employer did not appeal the denial of its termination petition.
                                                   5
              The remand matter was assigned to WCJ Eader, who concluded that
WCJ Briston did not make an express ruling on Claimant’s first review petition but
did grant Claimant’s reinstatement petition. As such, WCJ Eader concluded that
without a final judgment on the merits of the first review petition, res judicata did
not bar Claimant’s second review petition. WCJ Eader granted the second review
petition and amended the description of the injury to include a thoracic disc
herniation.
              Employer appealed to the Board, which concluded that Employer’s
appeal raised a purely legal question, i.e., whether res judicata barred the second
review petition. The Board found that WCJ Briston rendered a final decision on the
merits of the first review petition because she made a specific factual finding that
limited Claimant’s work injury to a thoracolumbar sprain/strain. Stated otherwise,
she denied Claimant’s review petition by not expanding the work injury to include
herniation, as he requested. Because Claimant did not appeal WCJ Briston’s
decision to the Board, it became a final adjudication on the scope of Claimant’s work
injury. This precluded Claimant’s second review petition.
              Claimant has again petitioned for this Court’s review.5                Claimant
contends the Board erred in holding that res judicata barred his second review
petition because WCJ Briston did not formally rule on his first review petition.
              We begin with a review of the doctrines res judicata and collateral
estoppel. Collateral estoppel is encompassed within the doctrine of res judicata,


5
 This Court’s review of an order of the Board determines “whether the necessary findings of fact
are supported by substantial evidence, whether Board procedures were violated, [or] whether
constitutional rights were violated or an error of law was committed.” Ingrassia v. Workers’
Compensation Appeal Board (Universal Health Services, Inc.), 126 A.3d 394, 400 n.6 (Pa.
Cmwlth. 2015). Regarding questions of law, our review is plenary. American Road Lines v.
Workers’ Compensation Appeal Board (Royal), 39 A.3d 603, 610 n.6 (Pa. Cmwlth. 2012).
                                               6
which “prevents the relitigation of claims and issues in subsequent proceedings.”
Henion v. Workers’ Compensation Appeal Board (Firpo & Sons, Inc.), 776 A.2d
362, 365 (Pa. Cmwlth. 2001).          In technical res judicata, often called claim
preclusion, “when a final judgment on the merits exists, a future suit between the
parties on the same cause of action is precluded.” Id. In order for technical res
judicata to apply, there must be: “(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 366.
Technical res judicata will bar “claims that were actually litigated as well as those
matters that should have been litigated.” Id. Further, “causes of action are identical
when the subject matter and the ultimate issues are the same in both the old and the
new proceedings.” Id.
              The doctrine of collateral estoppel, often called issue preclusion, “is
designed to prevent relitigation of an issue in a later action, despite the fact that the
later action is based on a cause of action different from the one previously litigated.”
Pucci v. Workers’ Compensation Appeal Board (Woodville State Hospital), 707
A.2d 646, 647–48 (Pa. Cmwlth. 1998). Collateral estoppel applies 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 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.
              Both Claimant and Employer cite this Court’s holding in Henion, 776
A.2d 362, to support their respective arguments. Claimant contends Henion
establishes that a second claim may be filed when the merits of the first claim have
                                            7
not been addressed by the WCJ. Employer contends Henion is distinguishable
because the claimant in Henion did not file two identical claims, as Claimant has
done in this case.
             In Henion, the claimant filed a specific loss petition for the loss of one-
half of his right middle finger. He withdrew the petition when the employer issued
an NCP accepting liability for the work injury. The claimant then filed a claim
petition, alleging that the work injury also included an injury to his right hand and
right index finger. The claimant alleged this injury was separate and distinct from
the specific loss award. The WCJ denied his claim, the Board affirmed, and no
further appeal was taken.
             The claimant then filed a second claim petition, asserting that he
suffered carpal tunnel syndrome in both hands as a result of his work injury. He also
filed a review petition to have the NCP amended to include carpal tunnel syndrome.
The employer asserted that the second claim petition and the review petition were
barred by res judicata. The WCJ agreed, and the Board affirmed. On appeal, this
Court concluded that res judicata did not apply because the causes of action were
not identical. The first proceeding involved an injury to the right hand and right
index finger, and the second proceeding involved carpal tunnel syndrome in both
hands. Collateral estoppel did not apply because the existence of carpal tunnel
syndrome was neither litigated nor necessary to the first proceeding. Accordingly,
we reversed the Board.
             Employer argues that Henion is distinguishable because Claimant’s two
review petitions are identical. We agree. Claimant did not appeal WCJ Briston’s
decision and, instead, filed a second review petition to litigate the identical issue.
Res judicata bars his second review petition. This conclusion is consistent with this


                                           8
Court’s recent decision in Pinto v. Workers’ Compensation Appeal Board (Main
Line Healthcare) (Pa. Cmwlth., No. 739 C.D. 2018, filed February 22, 2019).6
                 In Pinto, the claimant filed a claim petition alleging that a fall at work
had injured the cervical, thoracic and lumbar regions of his spine. The WCJ found
that the work injury “shall be defined to include lumbar strain/sprain and
lumbosacral radiculitis[.]” Id., slip op. at 4 (quoting 2015 WCJ decision). The
claimant alleged that the injury also caused cervical herniations, but the WCJ did not
address that claim. The claimant did not appeal to the Board.7
                 Several months later, the employer denied liability for the claimant’s
neck surgery. In response, the claimant filed a reinstatement petition and a review
petition “seeking review of [the WCJ’s] description of the work injury….” Pinto,
slip op. at 5.     The employer argued that the claimant’s review petition was barred
by res judicata. The claimant responded that she was not seeking to expand the
injury but sought only a clarification of the WCJ’s earlier decision. Rejecting the
employer’s res judicata argument, the WCJ granted both the reinstatement and
review petitions.
                 The employer appealed to the Board, which reversed. It held a WCJ
cannot review the merits of another WCJ’s decision. Rather, the merits of a WCJ’s
decision may be addressed only by appeal to the Board. This Court affirmed the
Board.
                 In doing so, this Court acknowledged that clarification of a WCJ
decision can be appropriate in some circumstances. For example, in Knouse v.

6
  Pinto is an unreported opinion. Under Section 414(a) of this Court’s Internal Operating
Procedures, an unreported opinion may be cited for its persuasive value. 210 Pa. Code §69.414(a).
7
  The employer appealed to the Board. The appeal was limited to the length of time the claimant
was entitled to benefits. The parties resolved the issue pursuant to a stipulation of facts, approved
by the Board.
                                                 9
Workers’ Compensation Appeal Board (G.O.D., Inc.), 886 A.2d 329 (Pa. Cmwlth.
2005), a WCJ found that the claimant suffered a work-related lumbar disc sprain but
not a disc herniation. Years later, in the course of a reinstatement petition, the same
WCJ found that the claimant’s lumbar disc sprain was more appropriately described
as an annular disruption. This Court agreed that using the “annular disruption”
terminology was a simple clarification occasioned by the medical experts’ testimony
that a sprained low back was best described as an annular disruption. Id. at 336.
This clarification did not implicate res judicata.
             Pinto distinguished Knouse and relied, instead, on Corbett v. Workers’
Compensation Appeal Board (Port Authority of Allegheny County) (Pa. Cmwlth.,
No. 2726 C.D. 2010, filed August 24, 2011). In Corbett, the claimant filed a claim
petition alleging injuries to his left shoulder, neck, left leg, left hip and low back.
The WCJ granted the claim petition on the basis of four of the injuries, but he did
not address the alleged low back injury. The claimant did not appeal. One year
later, the claimant filed a review petition requesting that his work injury be amended
to include a low back injury. A second WCJ granted the review petition, rejecting
the employer’s res judicata defense. The WCJ reasoned that the claimant could not
have appealed the first WCJ’s determination because it granted his claim petition.
The Board reversed, explaining that the description of a work injury was
fundamental to the decision. As such, res judicata barred the Claimant’s review
petition, and this Court affirmed.
             In his appeal to this Court, the claimant argued that the omission of the
back injury was a mistake and that he lacked standing to appeal the grant of benefits.
We disagreed. We held that the claimant had standing to appeal because the claim
petition alleged five injuries, and the WCJ accepted only four of the alleged injuries.


                                          10
Because the WCJ did not find the alleged low back injury work-related, the Claimant
had standing to appeal to the Board.
             In Pinto, we found the holding in Corbett dispositive. We explained
our decision on res judicata as follows:

             The Court must conclude that the relief sought by [the claimant]
             – the inclusion of cervical herniation in her injury description –
             is a substantive change rather than a clarification and that the
             elements of technical res judicata are met. Before [the first WCJ,
             the claimant] asserted an injury to the cervical spine and
             submitted medical reports and imaging of cervical herniations.
             [The first WCJ] summarized this evidence, as well as [the
             employer’s] evidence, in findings of fact, but did not make any
             specific finding as to which evidence he accepted and which he
             rejected. Of importance here, he omitted cervical herniations
             from the injury description, without even cursory reasoning as to
             why.[] These omissions are not small [as the claimant] now
             asserts that cervical herniations are why she cannot work and is
             entitled to benefits. Even if, as [the claimant] urges, the evidence
             presented … was adequate to support a determination that [she]
             suffered a work injury of which cervical herniations were a part,
             [the WCJ] did not include them in describing her injury. The
             omission, if a mistake, would have properly been brought in an
             appeal [to the Board].

Pinto, slip op. at 10-11 (emphasis added; internal footnote omitted). We concluded
that the claimant was aggrieved because she prevailed in the first proceeding only in
part. Therefore, she was required to appeal to the Board. Because the claimant did
not appeal, the first WCJ’s decision became final and could not be collaterally
attacked by a later review petition.
             Returning to the present case, we conclude that Pinto provides the
relevant precedent.    Claimant seeks to add a thoracic disc herniation to the
description of his work injury. This is a substantive change and not a mere

                                           11
clarification. WCJ Briston summarized the evidence presented on the thoracic disc
herniation, but she did not make a finding that it was work-related. Because the
WCJ’s description of his injury omitted the thoracic disc herniation, Claimant could
have appealed to the Board. Because Claimant did not appeal, WCJ Briston’s
decision is final and cannot be collaterally attacked by a second review petition.
             For the above reasons, we affirm the order of the Board.

                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge




                                         12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scott Rosenberry,                     :
                       Petitioner     :
                                      :
            v.                        :   No. 446 C.D. 2019
                                      :
Workers' Compensation Appeal          :
Board (Ramsey Construction, LLC),     :
                       Respondent     :


                                    ORDER

            AND NOW, this 22nd day of November, 2019, the order of the
Workers’ Compensation Appeal Board, dated April 3, 2019, is hereby AFFIRMED.


                                _____________________________________
                                MARY HANNAH LEAVITT, President Judge
