          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Jackson, Jr.,                   :
                         Petitioner  :
                                     :
             v.                      :        No. 1447 C.D. 2018
                                     :        SUBMITTED: November 15, 2019
Workers’ Compensation Appeal Board :
(Radnor School District and ACTS     :
Retirement Life Community),          :
                         Respondents :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                     FILED: August 4, 2020


             John Jackson, Jr., Claimant, petitions for review of the order of the
Workers’ Compensation Appeal Board reversing the orders of the Workers’
Compensation Judge (WCJ) granting Claimant’s petition to reinstate compensation
benefits (second reinstatement petition) against Radnor School District (Radnor) and
Claimant’s claim petition for workers’ compensation against ACTS Retirement Life
Community (ACTS). The Board’s decision was based upon the principles of
technical res judicata and collateral estoppel arising from this Court’s decision in a
case involving an earlier reinstatement petition (first reinstatement petition) against
Radnor and a joinder petition against ACTS that was ultimately deemed untimely
by the Board and this Court. See Jackson v. Workers’ Comp. Appeal Bd. (Radnor
Sch. Dist. and ACTS Ret. Cmty.), 148 A.3d 939 (Pa. Cmwlth. 2016) (Wojcik, J.)
(Jackson I). Claimant seeks reversal of the Board’s decision as it pertains to his
claim against ACTS.1
              In Jackson I, Claimant filed his first reinstatement petition in April
2013 against Radnor related to an alleged worsening of an accepted 2002 injury.
The original injury was to his left knee and occurred during the course and scope of
his employment as a security guard with Radnor. Claimant received partial benefits
from Radnor for 500 weeks while continuing to work for ACTS, where he had a
more sedentary job as the guard in a gatehouse. In February 2013, ACTS altered the
requirements for Claimant’s job to make them non-sedentary and he was terminated
from employment at ACTS because he could no longer do the tasks required of him.
His last day of work at ACTS was March 31.
              At a May 6, 2013 hearing on the first reinstatement petition, Claimant
testified, inter alia, that his pain worsened during his employment with ACTS and
attributed an increase in his pain to his physical duties.
              During the course of an October 2, 2013 deposition taken in connection
with the first reinstatement petition, Claimant’s treating physician, William Murphy,
D.O., opined that Claimant’s duties at ACTS from 2002 to 2013 aggravated and
made symptomatic Claimant’s preexisting left knee condition. On October 22, 2013,
Radnor filed a joinder petition against ACTS, alleging that Dr. Murphy had related
Claimant’s current disability in whole or in part to Claimant’s concurrent
employment with ACTS. ACTS filed an answer denying Radnor’s allegations and
objecting to the joinder petition as untimely filed.


    1
      Claimant’s arguments are focused on the Board’s decision as it pertains to ACTS. Toward
the end of his brief’s argument section, Claimant concedes that the Board is correct with respect
to Radnor: “as outlined above, because the joinder petition was procedurally defective, the
[Board’s d]ecision must stand only as to Radnor, not ACTS.” (Claimant’s Br. at 27.)


                                               2
             The WCJ issued a decision and order on the first reinstatement petition
and the joinder petition on October 27, 2014 (2014 Decision). 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 while employed with Radnor in 2002. The
WCJ further credited Dr. Murphy’s testimony that Claimant’s left knee injury was
aggravated by his continued work at ACTS, but did not credit him to the extent that
he related Claimant’s injury to the 2002 injury. The WCJ credited Radnor’s expert
only insofar as his testimony was consistent with that of Dr. Murphy.
             Based on these findings, the WCJ concluded that Claimant's disability
was a new injury that resulted from an aggravation of his preexisting degenerative
joint disease and was not causally related to his 2002 injury. The WCJ granted
Radnor’s joinder petition, 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 on the ground, among others, that the WCJ
had erred in overruling ACTS’ objections to the joinder petition and finding that the
joinder was timely filed. Relying upon our decision in 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 twenty-day period
for filing a joinder petition, 34 Pa. Code § 131.36, and concluded that Radnor’s
joinder petition was untimely. Accordingly, the Board reversed the WCJ’s order.




                                           3
Claimant appealed to this Court, which affirmed based upon Dudkiewicz. Jackson
I, 148 A.3d at 945.
             On February 3, 2016, during the pendency of the appeal to this Court
on the first reinstatement petition, Claimant filed a second reinstatement petition
against Radnor alleging a worsening of his condition as of April 29, 2015, and a
claim against ACTS alleging that on March 30, 2013, he sustained an aggravation
of his left knee condition from work-related activities. Claimant sought ongoing
total disability benefits as of March 30, 2013, as well as payment of medical bills
and counsel fees.
             Claimant submitted as exhibits the testimony of himself and the
deposition of Dr. Murphy taken during litigation of the first petition. In a new
deposition, Dr. Murphy reiterated that it was his belief that Claimant had aggravated
his left knee condition during the course of his employment with ACTS.
             The WCJ issued a decision and order on July 16, 2017 (2017 Decision).
The WCJ found that both the first and second reinstatement petitions against Radnor
(noting that the joinder petition was ultimately reversed) and the claim petition
against ACTS were before her. The WCJ’s order granted the second reinstatement
petition against Radnor and the claim against ACTS, concluding that Claimant
established an aggravation of a preexisting condition caused by his original work
injury and continued employment with ACTS, culminating in total disability as of
March 31, 2013. The WCJ ordered Radnor and ACTS to each pay one half of total
disability benefits based on earnings at ACTS as of March 31, 2013, and medical
benefits.
             Radnor and ACTS each appealed the 2017 Decision to the Board.
Radnor argued that the WCJ should have granted its motion to dismiss the second



                                         4
reinstatement petition because the first reinstatement petition was not before her for
consideration and Claimant was barred from litigating a second reinstatement
petition.     Radnor also argued that the WCJ erred in not denying the second
reinstatement petition on the merits. ACTS argued that the WCJ failed to consider
its defenses of technical res judicata2 and collateral estoppel and failed to issue a
reasoned decision.
               The Board reversed the order of the WCJ, finding that the matter was
barred by the doctrines of technical res judicata and collateral estoppel. Although
the Board recognized that the reversal of the WCJ’s determination on the first
reinstatement petition and joinder petition was based on the untimeliness of the
joinder petition, it relied on the fact that the WCJ had issued a complete decision and
order (the 2014 Decision) and that no part of that decision was preserved in whole
or in part.
               On appeal, Claimant raises the following argument, rephrased slightly3:

               The doctrines of collateral estoppel and res judicata
               preclude a party from relitigating an issue of law or fact
               only when the issue was actually litigated and decided on
               the merits.




    2
       The general term res judicata encompasses two related yet distinct principles: technical res
judicata or claim preclusion and collateral estoppel or issue preclusion. Henion v. Workers’ Comp.
Appeal Bd. (Firpo & Sons, Inc.), 776 A.2d 362, 365 (Pa. Cmwlth. 2001). We take references to
“res judicata” by ACTS and the Board to refer to technical res judicata. (See ACTS’ Appeal from
2017 Decision, Reproduced Record “R.R.” at 52a; see also Board Op. filed October 5, 2018, R.R.
70a-85a.)

    3
      This summary of the argument differs from the statement of questions involved. (Claimant’s
Br. at 5.) For clarity, we address the arguments as they are presented in the body of the brief.



                                                5
(Claimant’s Br. at 14.) Claimant asserts that the dismissal of the joinder petition as
untimely was procedural and not substantive, meaning that he is not barred by
collateral estoppel or technical res judicata. Claimant also asserts that the requisite
elements of collateral estoppel and technical res judicata are not present in this case
with respect to ACTS.
              The preclusion doctrine provides that when a final judgment on the
merits exists, a future suit between the parties on the same cause of action is
precluded. Henion v. Workers’ Comp. Appeal Bd. (Firpo & Sons, Inc.), 776 A.2d
362, 365 (Pa. Cmwlth. 2001). Collateral estoppel, or issue preclusion, acts to
foreclose litigation in a later action of issues of law or fact that were actually litigated
and necessary to a previous final judgment. Id. Technical res judicata, or claim
preclusion, applies when the following four factors are all met: (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 365-366. This doctrine applies to claims that were actually
litigated as well as those matters that should have been litigated. Id. Generally,
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. Moreover, where “the same
evidence is required to support a final determination in a former action and in a
subsequent action, res judicata bars the second action.” Robinson v. Fye, 192 A.3d
1225, 1231 (Pa. Cmwlth. 2018) [quoting Commonwealth ex rel. Bloomsburg State
Coll. v. Porter, 610 A.2d 516, 520 (Pa. Cmwlth. 1992)].
              Since Claimant has conceded that the Board’s decision is correct with
respect to Radnor, we need not discuss that question further except to note our
agreement that the claim against Radnor was fully and finally adjudicated on the



                                             6
merits in the first reinstatement petition proceedings and all the factors necessary to
establish collateral estoppel are satisfied.
             With respect to ACTS, however, the Board’s finding of technical res
judicata cannot stand. While the four enumerated factors set out above may have
been met, ACTS cannot satisfy the threshold prerequisite that the first petition
resulted in a final judgment on the merits. As Claimant points out, the claim against
ACTS was dismissed solely on the ground that its joinder was untimely. Indeed, had
the WCJ’s decision on the first reinstatement petition been affirmed on the merits, it
would appear that Claimant would now be in a position to assert collateral estoppel
against ACTS.
             In light of the foregoing, we affirm the decision of the Board as to
Radnor and reverse its decision as to ACTS, which shall be liable for 100% of
Claimant’s benefits.




                                         _____________________________________
                                         BONNIE BRIGANCE LEADBETTER,
                                         Senior Judge


Judge Cohn Jubelirer and Judge Fizzano Cannon did not participate in the decision
for this case.




                                               7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Jackson, Jr.,                   :
                         Petitioner  :
                                     :
             v.                      :        No. 1447 C.D. 2018
                                     :
Workers’ Compensation Appeal Board :
(Radnor School District and ACTS     :
Retirement Life Community),          :
                         Respondents :


                                     ORDER




             AND NOW, this 4th day of August, 2020, the order of the Workers’
Compensation Appeal Board is AFFIRMED as to Radnor School District, but is
REVERSED as to ACTS Retirement Life Community. The matter is REMANDED
for any necessary computation of benefits against ACTS, including interest and
costs, in accordance with the foregoing opinion.
             Jurisdiction is relinquished.




                                        _____________________________________
                                        BONNIE BRIGANCE LEADBETTER,
                                        Senior Judge
