               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Monique Wharton,                         :
                         Petitioner      :
                                         :
                   v.                    :
                                         :
Workers’ Compensation Appeal             :
Board (Department of Corrections),       :   No. 643 C.D. 2016
                       Respondent        :   Argued: May 2, 2017


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                  FILED: May 26, 2017

              Monique Wharton (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) March 23, 2016 order
affirming the Workers’ Compensation Judge’s (WCJ) decision granting the
Commonwealth of Pennsylvania, Department of Corrections’ (Employer) Petition to
Terminate Compensation Benefits (Termination Petition). Claimant presents one
issue for this Court’s review: whether the Board and the WCJ erred by finding that
res judicata and collateral estoppel barred litigation of her newly-discovered medical
conditions.
              On November 20, 2010, Claimant suffered a work-related injury while
working as a prison guard for Employer. On May 4, 2011, Claimant filed a Claim
Petition (Claim Petition). Following litigation on the Claim Petition, in November
2011, the parties stipulated that Claimant’s work injury was described as a right
shoulder strain/sprain and cervical sprain/strain (Original Stipulation). By January 4,
2012 decision, WCJ Nancy Goodwin adopted the Original Stipulation. By July 30,
2013 decision, WCJ Pamela Santoro (WCJ Santoro) adopted a subsequent stipulation,
wherein, the parties agreed that Claimant had returned to a sedentary/light-duty
position with no wage loss (Subsequent Stipulation), thus entitling Employer to
suspend Claimant’s WC benefits as of April 14, 2013.
              On January 3, 2014, Employer filed its Termination Petition alleging
that Claimant had fully recovered from her work injury as of December 12, 2013 as
confirmed by an independent medical examination performed by Dean Trevlyn, M.D.
(Dr. Trevlyn). On July 1, 2014, Employer filed a Petition to Modify and/or Suspend
Compensation Benefits (Suspension Petition) based upon its December 24, 2013 job
offer to Claimant following Dr. Trevlyn’s release to return to work without
restrictions. On October 24, 2014, Employer filed a Notification of Suspension
following Claimant’s October 23, 2014 return to work at wages greater than or equal
to her pre-injury wages.        On November 13, 2014, Claimant filed an Employee
Challenge to Employer’s Notification of Suspension (Challenge Petition).
              On October 19, 2015, WCJ Lawrence Beck (WCJ Beck) granted
Employer’s Termination Petition and dismissed Employer’s Suspension Petition and
Claimant’s Challenge Petition as moot. Claimant appealed to the Board. On March
23, 2016, the Board affirmed the WCJ’s decision. Claimant appealed to this Court.1
              Claimant argues that the Board and WCJ Beck erred by concluding,
based on Weney v. Workers’ Compensation Appeal Board (Mac Sprinkler Systems,
Inc.), 960 A.2d 949 (Pa. Cmwlth. 2008), that res judicata and collateral estoppel
barred litigation of her newly-discovered medical conditions. Specifically, Claimant

       1
        “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).


                                                2
contends that the Subsequent Stipulation included express language reserving both
parties’ rights to further litigate the injury description, and that Weney is
distinguishable.
             We begin our analysis with a discussion of Weney.          In Weney, the
claimant sustained a work-related left shoulder strain. The employer acknowledged
the claimant’s work injury through a Notice of Temporary Compensation Payable,
which was later converted to a Notice of Compensation Payable (NCP). Thereafter,
the claimant filed an initial Petition to Review Compensation Benefits (Review
Petition I) seeking to amend the NCP to include a left shoulder injury in the nature of
a tear of the anterior labrum with large glenohumeral joint effusion, tendonitis or a
partial tear of the supraspinatus/infraspinatus, minimal impingement, and biceps
tenosynovitis. The parties stipulated that the NCP should be amended to include the
additional shoulder injuries.   The WCJ adopted the stipulation and granted the
claimant’s Review Petition I. Eleven days later, the claimant filed another Petition to
Review Compensation Benefits (Review Petition II) seeking to further amend the
NCP to include four herniated discs, which he alleged were sustained as a result of
the work incident.    The employer denied the allegations and asserted that the
claimant’s Review Petition II was barred by the doctrines of technical res judicata
and/or collateral estoppel. The WCJ granted the claimant’s Review Petition II and
amended the NCP to include the claimant’s herniated discs.
             The employer appealed to the Board which essentially concluded that
the claimant’s Review Petition II was barred by technical res judicata, and reversed
the WCJ’s decision. The claimant appealed to this Court, which held:

             Here, the subject matter of both the Review Petition I and
             Review Petition II proceedings was the nature and extent of
             the injuries that Claimant sustained as a result of the . . .
             work incident, and the ultimate issue in both proceedings
             was whether the NCP accurately reflected the nature and

                                          3
             extent of [the c]laimant’s injuries. Although [the c]laimant
             did not actually litigate the specific issue of his neck or
             cervical spine injury during the earlier proceedings on his
             Review Petition I, the record evidence clearly establishes
             that he should have done so. . . . [There was] concrete
             evidence that [the c]laimant was aware of the injury to his
             neck or cervical spine and its relatedness to the . . . work
             incident during the earlier proceedings on his Review
             Petition I . . . . As [the c]laimant was aware of the injury to
             his neck or cervical spine and its relatedness to the . . . work
             incident during the proceedings on his Review Petition I, he
             should have litigated such injury at that time. . . .
             Therefore, since [the c]laimant attempted to raise a matter
             through his Review Petition II that should have been
             litigated during the earlier proceedings on his Review
             Petition I, [the c]laimant’s Review Petition II was barred by
             technical res judicata.

Weney, 960 A.2d at 955-56 (citations omitted).
             Claimant argues that because she was not formally diagnosed with her
cervical herniations and radiculopathy until after the Subsequent Stipulation was
executed (albeit before WCJ Santoro adopted it), and because the Subsequent
Stipulation included express language reserving the parties’ rights to further litigate
the nature and extent of the injuries, Weney is inapposite. Particularly, Claimant
contends that she was not aware of her additional injuries until after her treating
physician Scott J. Davidoff, M.D.’s (Dr. Davidoff) August 26, 2014 deposition.
Employer responds that since the nature and causation of Claimant’s injuries were
known to her as early as December 2011, which was the time of the original
litigation, Weney applies.
             Initially, we acknowledge that “[t]echnical res judicata may be applied to
bar ‘claims that were actually litigated[,] as well as those matters that should have
been litigated.’” Namani v. Workers’ Comp. Appeal Bd. (A. Duie Pyle), 32 A.3d 850,
856 (Pa. Cmwlth. 2011) (quoting Henion v. Workers’ Comp. Appeal Bd. (Firpo &
Sons, Inc.), 776 A.2d 362, 365 (Pa. Cmwlth. 2001)). However, although Weney and

                                            4
the instant matter both involve stipulations, unlike in Weney, the Stipulations here
contained express preservations of the right to litigate additional injuries.
Specifically, the Stipulations included as paragraphs 15 and 14, respectively state:
“The parties reserve the right to further litigate the description of injury or to
litigate any matter as permitted by the Pennsylvania Workers’ Compensation Act
[(Act)2] or [what is commonly referred to as] the Pennsylvania Heart and Lung
Act[3].” Original Stipulation at 2 (emphasis added), Subsequent Stipulation at 2
(emphasis added).
               Further,

               Section 413(a) of the Act[4] specifically authorizes the WCJ
               to amend the NCP during litigation of any petition where
               the evidence presented shows that the NCP is materially
               incorrect. Whether an employer has had a fair opportunity
               to contest the corrective amendment is determined on a
               case-by-case basis by looking at the totality of
               circumstances.

Walter v. Workers’ Comp. Appeal Bd. (Evangelical Cmty. Hosp.), 128 A.3d 367, 374
(Pa. Cmwlth. 2015) (emphasis added). Consequently, had Claimant’s work injuries
been litigated as opposed to resolved by stipulation, she would have been permitted to
present evidence of additional injuries during the litigation of Employer’s
Termination Petition.5 Here, Dr. Davidoff’s deposition was taken on August 26,
2014, and the last WCJ hearing was held on November 12, 2014. Thus, Employer
had notice of the additional injuries before it rested its case.




       2
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
       3
          Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637-638.
        4
          77 P.S. § 771.
        5
           During oral argument, Employer’s Counsel was specifically asked whether Claimant
would have had the right to raise the additional injuries at the Termination Petition hearing but for
the Stipulations. Employer’s Counsel conceded that Claimant would have been permitted to do so.
                                                 5
               Moreover, WCJ Beck specifically found as a fact that “Claimant []
suffered cervical herniation[s] . . . and [] radiculopathy as a result of the November
20, 2010 work injury.” WCJ Dec. at 5, Finding of Fact 7(c). Therefore, WCJ Beck
concluded that Claimant met her burden of proving the additional injuries. Given the
totality of the circumstances, Weney is distinguishable from the case sub judice.
Accordingly, we hold that the Board and WCJ Beck erred by ruling that res judicata
and collateral estoppel barred Claimant’s litigation of her additional medical
conditions.6
               For all of the above reasons, the Board’s order is reversed, and the
matter is remanded to the Board to remand to the WCJ for further proceedings on
Employer’s Suspension Petition and Claimant’s Challenge Petition.


                                           ___________________________
                                           ANNE E. COVEY, Judge




       6
        Given this Court’s reversal of the ruling on Employer’s Termination Petition, Employer’s
Suspension Petition and Claimant’s Challenge Petition are no longer moot.
                                               6
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Monique Wharton,                            :
                          Petitioner        :
                                            :
                   v.                       :
                                            :
Workers’ Compensation Appeal                :
Board (Department of Corrections),          :   No. 643 C.D. 2016
                       Respondent           :



                                       ORDER


             AND NOW, this 26th day of May, 2017, the Workers’ Compensation
Appeal Board’s (Board) March 23, 2016 order is reversed. This matter is remanded
to the Board to remand to the Workers’ Compensation Judge for further proceedings
consistent with his opinion.
             Jurisdiction relinquished.


                                          ___________________________
                                          ANNE E. COVEY, Judge
