           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher Byfield,                           :
                                               : No. 2002 C.D. 2015
                             Petitioner        : Submitted: April 8, 2016
                                               :
                     v.                        :
                                               :
Workers' Compensation Appeal                   :
Board (Philadelphia Housing                    :
Authority),                                    :
                                               :
                             Respondent        :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION BY JUDGE WOJCIK                                            FILED: July 26, 2016

              Christopher Byfield (Claimant) petitions for review of the September
18, 2015 order of the Workers’ Compensation Appeal Board (Board), affirming the
decision of a workers’ compensation judge (WCJ) to deny Claimant’s Petition to
Review Compensation Benefits (review petition). The review petition requested
an award of costs and attorney’s fees incurred by Claimant in successfully
defending a suspension petition filed by the Philadelphia Housing Authority
(Employer).1 We affirm.

       1
        Section 440 of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736,
added by Section 3 of the Act of February 8, 1972, as amended, provides in part as follows:

              (a) In any contested case where the insurer has contested liability
              in whole or in part, including contested cases involving petitions to
              terminate, reinstate, increase, reduce or otherwise modify
              compensation awards, agreements or other payment arrangements
(Footnote continued on next page…)
               In August 2010, Claimant sustained work-related injuries in the nature
of strains and sprains of the lumbar, cervical, and thoracic spine and a contusion of
the right wrist. Employer issued a notice of compensation payable acknowledging
liability for those injuries. In February 2011, Employer filed a suspension petition
under Section 306(f.1)(8) of the Act,2 alleging that Claimant had refused
reasonable medical treatment and was ineligible for benefits effective January 31,
2011. Claimant filed an answer denying this allegation and asserting that he was
being treated by company doctors, he had returned to work, and there were no
benefits to suspend.
               Employer presented the deposition testimony of Scott K. Epstein,
M.D., who conducted an independent medical examination of Claimant on
December 16, 2010. Dr. Epstein determined that Claimant was not fully recovered
from his lumbar injury but was capable of light duty work. He said that he


(continued…)

               or to set aside final receipts, the employe or his dependent, as the
               case may be, in whose favor the matter at issue has been finally
               determined in whole or in part shall be awarded, in addition to the
               award for compensation, a reasonable sum for costs incurred for
               attorney’s fee, witnesses, necessary medical examination, and the
               value of unreimbursed lost time to attend the proceedings:
               Provided, That cost for attorney fees may be excluded when a
               reasonable basis for the contest has been established by the
               employer or the insurer.

77 P.S. §996(a).

       2
          Section 306(f.1)(8) states that “[i]f the employe shall refuse reasonable services of
health care providers, surgical, medical and hospital services, treatment, medicines and supplies,
he shall forfeit all rights to compensation for any injury or increase in his incapacity shown to
have resulted from such refusal.” 77 P.S. §531(8).


                                                2
recommended a medical procedure involving lumbar facet injections bilaterally,
which had minimal risks and a high likelihood of success. On cross-examination,
however, Dr. Epstein testified that he had no information that Claimant ever
refused lumbar facet injections.
              At a September 12, 2011 hearing, Claimant testified that he was
currently working light duty for Employer and receiving treatment from Michael
R. McCoy, M.D. Claimant said that he first saw his family physician, Dr. Rosales,
and he acknowledged that he missed two appointments with Dr. Rosales in January
and February 2011. Claimant stated that he sought a second opinion from Dr.
McCoy, who was providing him therapy, medications, and trigger point injections
in his back. Claimant testified that if Dr. McCoy advised him to get a set of
lumbar facet point injections, he would agree to undergo that treatment. Claimant
insisted that he never refused any medical treatment.
              Claimant also presented the deposition testimony of Dr. McCoy. In
relevant part, Dr. McCoy stated that he scheduled trigger point injections for
Claimant, as well as physical therapy and medication for pain.            Dr. McCoy
testified that trigger point injections are usually ordered first because they are less
invasive, adding that if they did not work, he would recommend lumbar facet point
injections.
              In his January 31, 2013 decision, the WCJ relied on the consistent
testimony of the medical experts and found that lumbar facet injections constituted
a reasonable and necessary medical treatment for Claimant’s work injury. The
WCJ granted Employer’s petition and suspended Claimant’s compensation
benefits as of January 31, 2011.




                                          3
              Claimant appealed to the Board, arguing that the record contained no
evidence to show that Claimant had ever refused lumbar facet injections. Claimant
sought reversal of the WCJ’s decision and specifically requested interest and
unreasonable contest attorney’s fees.
              The Board concluded that Employer had not met its burden of proving
that Claimant refused reasonable and necessary medical treatment and reversed the
WCJ’s decision.        Although the Board acknowledged Claimant’s request for
attorney’s fees, the Board did not address that request in its opinion and order of
August 26, 2013. Neither Claimant nor Employer appealed from the Board’s
order.3
              On September 13, 2013, Claimant filed a review petition, seeking
litigation costs and attorney’s fees incurred during litigation of the suspension
petition. The review petition was assigned to a different WCJ, who concluded that
Claimant’s proper recourse would have been to appeal the Board’s order or request
a rehearing.4 Because Claimant did neither, the WCJ held that he was barred from
recovering those costs and attorney’s fees through a separate petition.
              Claimant appealed to the Board, which concluded that Claimant had
the opportunity to request a rehearing to address the award of costs and fees or
appeal that issue to Commonwealth Court, yet failed to do so. The Board held that
Claimant’s review petition was barred by collateral estoppel5 because the issue of

       3
         Section 423(a) of the Act provides a twenty-day appeal period, which is measured in
calendar days and is computed from the date upon which the decision is mailed. 77 P.S. §853.

       4
         Section 426 of the Act states that “the board, upon petition of any party and upon cause
shown, may grant a rehearing of any petition upon which the board has made an award or
disallowance of compensation or other order or ruling . . . .” 77 P.S. §871.

(Footnote continued on next page…)
                                               4
litigation costs and attorney’s fees was identical to that raised in the prior litigation,
was actually litigated, was essential to the judgment, and was material to the
adjudication. Further, the Board rejected Claimant’s argument that he had no
standing to appeal the Board’s order because he was not aggrieved by the Board’s
decision.      The Board explained that although Claimant had prevailed in the
suspension proceeding, he was aggrieved by the Board’s failure to award costs and
attorney’s fees and, therefore, he had a right to request a rehearing or to appeal the
Board’s order to this Court. Thus, the Board affirmed the WCJ’s order.
                 On appeal to this Court,6 Claimant argues that the Board’s failure to
award litigation costs and unreasonable contest attorney’s fees in the suspension
proceeding was a mechanical error properly addressed by a petition for review
under Section 413(a) of the Act.7 Claimant further asserts that the Board erred in

(continued…)
       5
         The principle of collateral estoppel operates to bar relitigation of an issue of law or fact
in a subsequent action only when the following factors are demonstrated: (1) the legal or factual
issues are identical; (2) they were actually litigated; (3) they were essential to the judgment; and
(4) they were material to the adjudication. PMA Insurance Group v. Workmen’s Compensation
Appeal Board (Kelley), 665 A.2d 538, 541 (Pa. Cmwlth. 1995). Because we conclude that
Claimant cannot pursue the relief he seeks under section 413 of the Act, we do not decide
whether this doctrine applies to the present appeal.
       6
          Our scope of review is limited to determining whether constitutional rights were
violated, whether the adjudication is in accordance with the law, or whether necessary findings
of fact are supported by substantial evidence. Milner v. Workers’ Compensation Appeal Board
(Main Line Endoscopy Center), 995 A.2d 492, 495 n.2 (Pa. Cmwlth. 2010).

       7
           Section 413(a) of the Act states:

                 A workers’ compensation judge may, at any time, review and
                 modify or set aside a notice of compensation payable and an
                 original or supplemental agreement or upon petition filed by either
                 party with the department, or in the course of the proceedings
(Footnote continued on next page…)
                                                 5
holding that he had standing to appeal the Board’s decision when in fact he
prevailed in the suspension proceeding. We disagree.
                Under Section 440 of the Act, a prevailing claimant is entitled to
recover litigation costs and an award of reasonable attorney’s fees unless the
record establishes that the employer had a reasonable basis for contesting liability.
Wood v. Workers’ Compensation Appeal Board (Country Care Private Nursing),
915 A.2d 181, 186 (Pa. Cmwlth. 2007).                   A determination of whether the
employer’s contest was reasonable is a question of law that depends upon the facts
and the legal issues involved in each case. Id. A reasonable contest is established
when the medical evidence is conflicting or susceptible to contrary inferences and
there is an absence of evidence that an employer’s contest was frivolous or
intended to harass the claimant. Id.
                Relying on Drozd v. Workers’ Compensation Appeal Board (The
Lion, Inc.), 485 A.2d 96 (Pa. Cmwlth. 1984), Claimant argues that because he
prevailed in the suspension proceeding, the Board’s failure to award costs and
attorney’s fees is a mechanical error appropriately corrected by way of a petition
for review. In Drozd, the claimant was awarded total disability benefits at the rate
of $60.00 per week.          The employer appealed to the Board, which affirmed.
Neither party appealed the Board’s decision. Thereafter, the claimant filed a



(continued…)

                under any petition pending before such workers’ compensation
                judge, if it be proved that such notice of compensation payable or
                agreement was in any material respect incorrect.

77 P.S. §771.


                                                6
modification petition alleging that the referee8 relied on an obsolete version of
Section 305(a) of the Act, 77 P.S. §511, to calculate the amount of benefits
payable. The claimant asserted that he was entitled to benefits in the amount of
$86.14 per week and that the referee’s error could be corrected under Section 413
of the Act. However, the referee denied the claimant’s petition, and the Board
affirmed.
               On appeal, we reversed the Board’s order and held that the referee’s
mechanical error in the computation of the claimant’s benefits was not
irremediable, despite the claimant’s failure to appeal. Instead, we determined that
Section 413 of the Act permits a referee to modify an award to correct mechanical
errors in the application of the statute. We noted that the matter did not concern
the merits of the original award, but only the question of its satisfaction. Because
the claimant in Drozd was totally disabled and entitled to compensation, he should
have received $86.14 per week during total disability instead of $60.00 per week,
the amount he was awarded. Thus, we held that it was error on the part of
compensation authorities not to have modified the original award to correct the
mechanical error.
               In contrast to Drozd, this case does not involve a mechanical or
mathematical error relating to the satisfaction of an award. Unlike the claimant in
Drozd, Claimant has not been awarded the costs and attorney’s fees he now seeks.
Moreover, and, contrary to his implied assertions, an award of attorney’s fees to a
prevailing claimant is not automatic. Mason v. Workmen’s Compensation Appeal



      8
          Workers’ compensation judges were formerly known as referees.



                                              7
Board (Wheeling-Pittsburgh Steel Corp.), 600 A.2d 241, 244 (Pa. Cmwlth. 1991).9
Therefore, even if the absence of an award of attorney’s fees was inadvertent on
the Board’s part, the mistake goes to the merits of the case, not to the satisfaction
of the award, and it cannot be corrected by way of a review petition under Section
413 of the Act.
               Claimant maintains that he did not have standing to file an appeal
from the Board’s order because, having prevailed on appeal in the suspension
proceeding, he was not “aggrieved.”10 However, a determination of whether an
individual is aggrieved and thus has standing to appeal is made on a case-by-case
basis. Chiro-Med Review Co. v. Bureau of Workers’ Compensation, 908 A.2d 980
(Pa. Cmwlth. 2006). Generally, a party who prevailed in a proceeding below is not
an aggrieved party and, consequently, has no standing to appeal.                     Almeida v.
Workers’ Compensation Appeal Board (Herman Goldner Co.), 844 A.2d 642, 644
(Pa. Cmwlth. 2004). However, “[c]ourts allow a party to appeal where the remedy
awarded is claimed to be insufficient.” Chiro-Med Review Co., 908 A.2d at 984;
Robb v. Workers’ Compensation Appeal Board (Department of Public Welfare),
718 A.2d 875, 880 (Pa. Cmwlth. 1998).
               In Robb, the employer filed a petition for a physical examination, and,
thereafter, the WCJ granted the employer’s request for supersedeas. At a hearing

       9
          In affirming the Board’s conclusion that the employer’s contest was reasonable, we
specifically held in Mason that the reasonableness of an employer’s contest does not depend on
its success in litigating a matter, but rather upon whether the employer has an objective basis for
its actions. Id. at 243-44.

       10
          Pursuant to Section 702 of the Administrative Agency Law, “[a]ny person aggrieved
by an adjudication of a Commonwealth agency who has a direct interest in such adjudication
shall have the right to appeal therefrom . . . .” 2 Pa.C.S. §702. See also Pa.R.A.P. 501 (any party
aggrieved by an appealable order may appeal therefrom).


                                                8
on the petition, the claimant’s counsel conceded that the employer was entitled to a
physical examination but argued that the WCJ improperly granted supersedeas
when the only petition pending was for a physical examination. Ultimately, the
parties agreed that the supersedeas should be lifted once the claimant submitted to
an examination. The claimant complied, and the WCJ entered an order indicating
that the petition was withdrawn. However, the WCJ’s order did not reinstate the
claimant’s benefits.
             The claimant appealed to the Board, which concluded that the
claimant lacked standing. However, on appeal, we reversed the Board’s order and
determined that the claimant had standing because the WCJ’s order effectively
denied the claimant benefits. We noted that a contrary holding “would produce the
grossly inequitable result of essentially leaving [the claimant] with a right without
a remedy . . . .” Robb, 718 A.2d at 880.
             We relied on Robb in Chiro-Med Review Co.               In that case, a
utilization review organization (URO) petitioned for review of a hearing officer’s
order, which sustained the URO’s appeal from a revocation of its authorization to
conduct utilization reviews but failed to compensate it for losses it sustained during
the period of revocation. The Bureau of Workers’ Compensation (Bureau) filed a
cross-appeal and a motion to quash, arguing, inter alia, that the URO lacked
standing to appeal. We rejected that argument, explaining as follows:


             Here, Petitioner complains [that] the Hearing Officer
             denied it a meaningful remedy to compensate it for
             revenue lost during the [25-months from the Bureau’s
             revocation of] its authorization until it was reissued ….
             In its proposed findings of fact, Petitioner requested the
             assignment of additional utilization reviews; however,
             the Hearing Officer failed to address Petitioner’s request.

                                           9
             As in Robb, Petitioner’s appeal is the only means by
             which it may challenge the Hearing Officer’s failure to
             compensate it for the Bureau’s actions. Thus, although
             Petitioner “prevailed” below, we conclude it has
             standing because it did not receive all the relief it
             requested.
Chiro-Med Review Co., 908 A.2d at 985 (emphasis added).
             We conclude that Chiro-Med Review Co. and Robb are controlling
and that Claimant had standing to appeal the Board’s order. Although Claimant
prevailed before the Board in his appeal of the suspension order, he only prevailed
in part; because the Board did not address his request for costs and attorney’s fees,
its order did not entitle him to receive payment for expenses he incurred in
defending Employer’s suspension petition. As a result, and because an award of
attorney’s fees is not automatic, Claimant was adversely affected by the Board’s
decision, and thus, he was aggrieved. Claimant’s proper remedy was to request
reconsideration by the Board or file an appeal to this Court. Claimant failed to do
either. Consequently, the Board’s order is final and cannot be collaterally attacked
by a subsequently filed review petition.
             For these reasons, we affirm the Board’s order.




                                       MICHAEL H. WOJCIK, Judge




                                           10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Christopher Byfield,                    :
                                        : No. 2002 C.D. 2015
                        Petitioner      :
                                        :
                  v.                    :
                                        :
Workers' Compensation Appeal            :
Board (Philadelphia Housing             :
Authority),                             :
                                        :
                        Respondent      :




                                     ORDER


            AND NOW, this 26th day of July, 2016, the order of the Workers’
Compensation Appeal Board, dated September 18, 2015, is affirmed.



                                      __________________________________
                                      MICHAEL H. WOJCIK, Judge
