          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


City of Wilkes-Barre,                   :
                        Appellant       :
                                        :
                  v.                    :   No. 1320 C.D. 2015
                                        :   Argued: March 7, 2016
Fire Fighters Local Union No. 104       :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                     FILED: April 5, 2016


            The City of Wilkes-Barre appeals from an order of the Court of
Common Pleas of Luzerne County that denied the City’s Petition to Vacate
Arbitration Award. We affirm.
            In September 2012, Captain Joseph Perlis (Grievant) sustained a work
injury while performing his duties with the City’s Fire Department. Unable to
work, he underwent surgery for a torn rotator cuff and participated in physical
therapy and chiropractic treatments. During his period of attempted recuperation,
the City provided him with full pay and paid all of his hospital, medical and
surgical expenses. In addition, he was awarded workers’ compensation benefits in
October 2012.
              In June 2013, the City’s workers’ compensation carrier requested a
utilization review (UR) of Grievant’s chiropractic treatments and physical therapy.
Pursuant to an August 2013 UR determination, Grievant’s chiropractic treatments
were determined to be unreasonable and unnecessary as of May 21, 2013, and into
the future. Although neither Grievant nor his chiropractic provider Dr. Colella
appealed therefrom, after May 21, 2013, Grievant continued to receive chiropractic
treatment for which the City refused to pay. As for physical therapy, Grievant
ceased receiving such services after the UR determination.1 In any event, once the
City stopped paying for both services, the dispute between the parties arose.
              In August 2013, Fire Fighters Local Union No. 104 (Union) filed a
grievance alleging that, contrary to the parties’ collective bargaining agreement
(CBA), the City’s action deprived Grievant of benefits under what is frequently
referred to as the Heart and Lung Act.2 Upon the parties’ inability to resolve the
grievance, an arbitrator was assigned to the dispute. When the parties similarly
were unable to stipulate to the issues, the arbitrator determined that they were as
follows: 1) whether the grievance was substantively arbitrable; and 2) whether the
City violated the CBA when it refused to continue to pay for Grievant’s physical
therapy and chiropractic treatments and, if so, the proper remedy. September 2,
2014 Arbitration Award at 2. In the interim, Grievant submitted a voluntary
resignation in October 2013.


    1
       Noting that the record did not include a copy of the UR determination for Grievant’s
physical therapy, the arbitrator observed that the record nonetheless reflected that the provider
filed a petition for review of UR in September 2013. In addition, the arbitrator noted that a
Workers’ Compensation Judge (WCJ) in March 2013 concluded that Grievant’s physical therapy
was also unreasonable and unnecessary. September 2, 2014 Arbitration Award at 4.
     2
       Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637-38.



                                               2
               Following an April 2014 hearing, the arbitrator concluded that the
grievance was substantively arbitrable and made the following award:
               The grievance is sustained in part and denied in part.
               The City violated the Agreement when it refused to
               continue to pay for the Grievant’s chiropractic treatments
               after May 21, 2013. The City shall pay for those
               chiropractic services rendered between August 24, 2013
               and October 5, 2013 that are not otherwise payable under
               the City’s medical insurance program (at no cost to the
               Grievant).
Id. at 11. As for physical therapy services, the arbitrator determined that Grievant
was not out-of-pocket for any fees for those services because he discontinued
therapy after the UR determination. The City’s Petition to Vacate Arbitration
Award followed. Following common pleas’s July 2015 denial of that petition, the
City timely appealed to this Court.
               Our narrow certiorari review permits us “to consider only questions
relating to the arbitrators’ jurisdiction, the regularity of the proceedings, an excess
of the arbitrators’ powers and constitutional deprivations.”3 Dep’t of Corr. v. Pa.
State Corr. Officers Ass’n, 12 A.3d 346, 356 (Pa. 2011). We turn first to the City’s
assertion that the arbitrator lacked jurisdiction over the parties’ dispute.
               As we have noted, our “courts have held that disputes regarding
entitlement to heart and lung benefits may be resolved through the grievance
arbitration process if provided for in a mutually agreed upon CBA.” Shaw v. Twp.
of Aston, 919 A.2d 303, 305 (Pa. Cmwlth. 2007) [citing Sidlow v. Twp. of Nether
Providence, 621 A.2d 1105 (Pa. Cmwlth. 1993)]. Here, the City’s argument is
twofold. First it claims that Heart and Lung Act benefits are not covered in the

    3
      In its reply brief, the City conceded that it incorrectly referenced the “essence test,” rather
than the correct “narrow certiorari” review.



                                                 3
CBA because it does not specifically reference the Act. This argument misses the
mark. As the City itself points out, Article 12 of the parties’ CBA provides for the
payment of “hospital, medical and surgical expenses incurred by any member of
the Department who is injured in the performance of his duties.” It is the failure of
the City to pay for such expenses while Grievant was a member of the Department
which is the basis for the grievance, and the fact that those benefits are also
provided for in the Act is irrelevant. Next, the City argues that the benefits at issue
are outside the CBA because Dr. Colella has not attempted to collect his fees from
Grievant, so Grievant has not “incurred” the expenses. However, the arbitrator
found that “the Grievant has been billed for those services and the City is
responsible for any such fees incurred within the grievance filing period.”
September 2, 2014 Arbitration Award at 10. This argument is nothing more than a
challenge to the arbitrator’s fact-finding and his interpretation of the CBA, matters
entirely outside our scope of review. Pa. State Police v. Pa. State Troopers Ass’n,
840 A.2d 1059, 1062-63 (Pa. Cmwlth. 2004).
                The City next argues that the doctrine of collateral estoppel applied to
preclude a finding that the City was responsible to pay the medical benefits after
the Workers’ Compensation Judge found them to be unreasonable and
unnecessary, and thus not payable under the Workers’ Compensation Act.4 Even
assuming, arguendo, that issue preclusion would apply in this instance, the
arbitrator’s contrary conclusion would simply be an error of law, again a question
outside our scope of review. Fraternal Order of Police, Lodge No. 19 v. City of
Chester, 845 A.2d 230, 233 (Pa. Cmwlth. 2004).


    4
        Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.



                                                4
             Finally, the City avers that “Captain Perlis was never precluded from
submitting Pro Rehabilitation’s or Dr. Coletta’s bills or any other medical bill to
the City’s health insurance provider.” Brief for Appellant at 14. It is not clear how
this alleges any error by the arbitrator, let alone one within our scope of review,
since the award specifically stated that “the City shall pay for those chiropractic
services rendered between August 24, 2013 and October 5, 2013 that are not
otherwise payable under the City’s medical insurance program (at no cost to the
Grievant).” September 2, 2014 Arbitration Award at 11.
             For all the foregoing reasons, the order of the Court of Common Pleas
of Luzerne County refusing to vacate the arbitration award is affirmed.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge




                                         5
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


City of Wilkes-Barre,                  :
                        Appellant      :
                                       :
                  v.                   :   No. 1320 C.D. 2015
                                       :
Fire Fighters Local Union No. 104      :


                                    ORDER


            AND NOW, this 5th day of April, 2016, the order of the Court of
Common Pleas of Luzerne County is hereby AFFIRMED.




                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Senior Judge
