Opinion
No. 2193 C.D. 2011
07-09-2012
City of Philadelphia, Petitioner v. Workers' Compensation Appeal Board (Porter), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
The City of Philadelphia (Employer) petitions for review of the Order of the Workers' Compensation Appeal Board (Board) that affirmed the Decision of the Workers' Compensation Judge (WCJ), which granted Tamika Porter's (Claimant) Petition to Reinstate Compensation Benefits (Reinstatement Petition), amended Employer's Notice of Compensation Payable (NCP) to include an injury of a disc herniation at C5-6 and C6-7, granted Employer's Petition to Suspend Compensation Benefits (Suspension Petition), and denied Employer's Petition to Terminate Compensation Benefits (Termination Petition). Employer argues that the WCJ and the Board erred in failing to consider the Opinion and Award of Employer's Heart and Lung Arbitration Panel (Arbitration Panel) pursuant to the Act commonly known as the Heart and Lung Act for purposes of collateral estoppel. Employer also argues that the expert medical testimony upon which the WCJ relied to expand the definition of Claimant's work-related injury and deny Employer's Termination Petition was not substantial, competent evidence.
Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637 - 638. The Heart and Lung Act allows "police and fire personnel to collect full salary benefits for temporary injuries sustained in the performance of their duties." Cohen v. Workers' Compensation Appeal Board (City of Philadelphia), 589 Pa. 498, 500 n.1, 909 A.2d 1261, 1262 n.1 (2006).
Claimant worked for Employer as a police officer and was injured in the course and scope of her employment in a car accident on June 10, 2008. Employer issued the NCP, in which it accepted Claimant's injury as a "neck sprain/strain," and began paying Claimant "Heart [and] Lung benefits in lieu of workers' compensation [(WC)] benefits." (NCP at 1-2, R.R. at 1A-2A.) Claimant's benefits were suspended when she returned to work for Employer without loss of wages on September 3, 2008. Claimant filed her Reinstatement Petition on June 1, 2009, alleging that her condition had worsened to the point where she was unable to perform her duties and "was placed back out of work." (Reinstatement Petition at 2, R.R. at 4A.) On July 20, 2009, Employer filed its Termination Petition and Suspension Petition, arguing that Claimant was fully recovered and able to return to her job without restrictions. The parties' petitions were consolidated before the WCJ, who held hearings on the matter on July 9, 2009 and February 18, 2010. At the hearings, Claimant testified on her own behalf and submitted into evidence transcripts of hearings before the Arbitration Panel, dated May 7, 2009, June 18, 2009, and July 2, 2009, which contained the testimony of Claimant and her supervisors, Sergeant Kendra Henderson, Sergeant John Stanford, and Sergeant Ronald Washington. Claimant also introduced the deposition testimony of her treating chiropractor, Matthew B. Marcus, D.C. Employer submitted the deposition testimony of L. Richard Trabulsi, M.D. Both experts relied on the radiologist's report of an MRI of Claimant's cervical spine, which was conducted on July, 14, 2008 (MRI Report). Employer also attempted to submit the Opinion and Award of the Arbitration Panel; however, Claimant's Counsel objected to the admission of the Arbitration Panel's Opinion and Award on grounds of relevance, and the WCJ sustained the objection.
This initial hearing only dealt with Claimant's Reinstatement Petition, as Employer's petitions had not yet been filed.
On September 27, 2010, the WCJ issued a Decision in which she credited Claimant's testimony and credited the testimony of Dr. Marcus over that of Dr. Trabulsi. (Findings of Fact (FOF) ¶¶ 32-34.) Based on these credibility determinations, the WCJ concluded that Claimant's work injury recurred as of March 6, 2009 and that her disability continued until August 3, 2009, at which time Claimant returned to regular duty work. (FOF ¶ 35.) The WCJ also determined that the description of Claimant's work injury should be expanded to include C5-6 and C6-7 disc herniations and that Claimant was not fully recovered from her work injury. (FOF ¶ 35, Conclusions of Law ¶ 1-3.) Employer appealed to the Board, arguing, inter alia, that the WCJ erred by not admitting the Opinion and Award of the Arbitration Panel for purposes of collateral estoppel. The Board examined Cohen v. Workers' Compensation Appeal Board (City of Philadelphia), 589 Pa. 498, 909 A.2d 1261 (2006), in which the Pennsylvania Supreme Court held that a WCJ did not err by declining to give preclusive effect to a determination by the Philadelphia Civil Service Commission in a Heart and Lung Act determination. Acknowledging that, in Department of Corrections v. Workers' Compensation Appeal Board (Wagner-Stover), 6 A.3d 603 (Pa. Cmwlth. 2010) (en banc), this Court held that an adjudication in an agency proceeding may have preclusive effect in a WC matter, the Board noted that Wagner-Stover "does not so mandate." (Board Op. at 5.) The Board stated that merely because an Act 632 proceeding held by the Department of Corrections in Wagner-Stover provided the claimant in that case with a full and fair opportunity to litigate the issue of recovery from a work-related injury, "[i]t does not necessarily follow that [Employer]'s Heart and Lung Act arbitration procedures provided Claimant with a full and fair opportunity to litigate the issue" of her recovery from her work-related injury. (Board Op. at 5 (emphasis added).) Therefore, the Board held that the WCJ did not err in refusing to admit the Opinion and Award of the Arbitration Panel for purposes of collateral estoppel. The Board also held that the WCJ's findings of fact were supported by substantial, credible evidence. Employer now petitions this Court for review.
Act of December 8, 1959, P.L. 1718, as amended, partially repealed by Act of August 11, 2009, P.L. 147, formerly at 61 P.S. §§ 951-952. The provisions of Act 632 with regard to employees of State Correctional Institutions have since been codified at 61 Pa. C.S. § 1101. Both the former Act 632 and the current provisions allow injured employees of State Correctional Institutions to receive their full salaries if injured in the course of their employment. 61 Pa. C.S. § 1101(a).
In an appeal of an order of the Board, this Court's "review is limited to determining whether constitutional rights have been violated, whether an error of law was committed or whether the necessary findings of fact are supported by substantial evidence." Verbilla v. Workmen's Compensation Appeal Board (Schuykill Nursing Association), 668 A.2d 601, 603 n.2 (Pa. Cmwlth. 1995).
Before this Court, Employer makes arguments similar to those it made before the Board, specifically, that: the WCJ erred in refusing to admit the Opinion and Award of the Arbitration Panel for purposes of collateral estoppel; and the evidence upon which the WCJ relied to deny Employer's Termination Petition and expand the definition of Claimant's injury was not substantial, competent evidence.
We first address Employer's argument that the WCJ erred in refusing to admit into evidence the Opinion and Award of the Arbitration Panel for purposes of collateral estoppel. Collateral estoppel, also referred to as issue preclusion, bars a losing party from re-litigating an issue that another tribunal has already decided against it. Shaffer v. Smith, 543 Pa. 526, 529, 673 A.2d 872, 874 (1996); Wagner-Stover, 6 A.3d at 608. Collateral estoppel may be asserted when:
(1) . . . the issue in the prior adjudication was identical to one presented in the later action;Wagner-Stover, 6 A.3d at 608-09 (quoting Callaghan v. Workers' Compensation Appeal Board (City of Philadelphia), 750 A.2d 408, 412 (Pa. Cmwlth. 2000)). In Wagner-Stover, this Court held that an adjudication by an agency may have preclusive effect in a later proceeding by a court or another administrative agency, stating:
(2) . . . there was a final judgment on the merits;
(3) . . . the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication;
(4) . . . the party against whom it is asserted has had a full and fair opportunity to litigate the issue in a prior action;
(5) . . . the determination in the prior proceeding was essential to the judgment.
It is a simple matter to determine identity of issue, because a "fact is a fact," regardless of the context in which it is used. With respect to a "full and fair opportunity to litigate," the task is more complicated, depending, as it does, on the amount in controversy and the procedures applicable to each proceeding.Id. at 611. Employer argues that, as in Wagner-Stover, the Opinion and Award of the Arbitration Panel, which is an agency adjudication, should have preclusive effect in the WC proceeding. However, we conclude that Cohen, not Wagner-Stover, is squarely on point with the current case and controls.
In Cohen, our Supreme Court considered whether an adjudication of Employer's civil service commission, involving Heart and Lung Act benefits for an injured police officer, had preclusive effect on a subsequent WC proceeding. Cohen, 589 Pa. at 504, 909 A.2d at 1265. The Supreme Court held that such an adjudication did not provide a full and fair opportunity to litigate issues such that it should exercise preclusive effect in a WC proceeding. Id. at 513, 909 A.2d at 1270. The Supreme Court based this holding, in part, on the differences between WC procedures and Employer's civil service procedures and, in part, on the difference in the benefits or financial risk at stake under the Heart and Lung Act versus those under the Workers' Compensation Act (the Act):
As in this case, Employer in Cohen was the City of Philadelphia.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501 - 2708.
Both because liability under [the Act] may span a substantially longer period and because the benefits available under Regulation 32 supplant workers' compensation benefits for a defined period, the employee's net recovery, and the [Employer]'s (or any insurer's) net risk, under Regulation 32 is substantially narrower in scope than the potential liability under the workers' compensation scheme. In particular, with regard to an employee claiming total disability, the net
amounts in controversy in Regulation 32 proceedings are substantially lower than in a workers' compensation matter that may result in lifetime benefits.Id. at 513, 909 A.2d at 1270.
The amount at risk, also referred to in collateral estoppel analyses as the amount in controversy, in the original determination is important because if the stakes in the initial adjudication are lower than those in the subsequent adjudication, the parties may not have had as much incentive to fully litigate the issue in question. Rue v. K-Mart Corp., 552 Pa. 13, 20-21, 713 A.2d 82, 86 (1998) ("collateral estoppel should not apply where . . . 'the amount in controversy in the first action may have been so small in relation to the amount in controversy in the second that preclusion would plainly be unfair'") (quoting Restatement (Second) of Judgments, Section 28, Comments (j)).
Employer argues that Cohen is distinguishable from the current case because the Supreme Court's discussion in Cohen compared Regulation 32 benefits with WC benefits, and Heart and Lung Act benefits are at issue in the current proceeding. However, as the Supreme Court noted in Cohen, under Employer's Civil Service regulations, Regulation 32 was Employer's mechanism for fulfilling its Heart and Lung Act obligations at that time. Id. at 500 n.1, 909 A.2d 1262 n.1. The Regulation 32 benefits discussed in Cohen are the same as the Heart and Lung Act benefits that were at stake in Claimant's arbitration with Employer. Under Section 1 of the Heart and Lung Act, benefits are only allowed for employees who are "temporarily" disabled, 53 P.S. § 637(a), "whereas workers' compensation benefits may last for a lifetime." Wagner-Stover, 6 A.3d at 610. In contrast, Wagner-Stover dealt with Act 632 benefits, which, like WC benefits, can potentially last for an injured employee's lifetime. Id. at 613.
It is not clear from the record whether Employer still uses Regulation 32 to satisfy its obligations under the Heart and Lung Act or whether the Opinion and Award of the Arbitration Panel was made pursuant to Regulation 32. --------
As discussed above, one of the main elements in determining whether a prior adjudication was a full and fair opportunity to litigate an issue for purposes of collateral estoppel is whether the amount in controversy in the prior adjudication is similar to or greater than the amount in controversy in the current adjudication. Wagner-Stover, 6 A.3d at 611. When comparing different disability compensation schemes to one another to determine the amount in controversy, this Court must compare the benefits that may potentially be provided by the different compensation schemes. Cohen, 589 Pa. at 513, 909 A.2d at 1270; Wagner-Stover, 6 A.3d at 611. Many disability compensation schemes are based on an employee's time-of-injury wage. For example, under the Heart and Lung Act, Act 632, and the Act, benefits are all based on the employee's time of injury wage. 53 P.S. § 637(a) (providing that a Heart and Lung Act beneficiary shall receive her full salary during her temporary disability); 61 Pa. C.S. § 1101(a) (current Act 632 provision providing that an Act 632 beneficiary shall receive her full salary for the duration of her disability); 77 P.S. § 511(1) (providing that a totally disabled claimant under the Act shall receive two-thirds of her average weekly wage). Thus, when comparing the amount in controversy for a given employee under two such applicable schemes, the major difference will be the potential duration of the benefits. As in Cohen, the earlier proceeding in this case dealt with a compensation scheme that provided benefits that could only last temporarily, no matter the duration of Claimant's disability, but in the WC matter currently before us, Claimant's benefits could continue until her disability is fully resolved. Therefore, the stakes for both Claimant and Employer were significantly lower in the proceeding before the Arbitration Panel than they were in the WC proceeding. This is different than the situation in Wagner-Stover, involving a prior adjudication by the Department of Corrections regarding the claimant's continuing eligibility for Act 632 benefits, which, like WC benefits, can last for the rest of a claimant's life. Because the stakes were lower in the prior adjudication than in the matter before the WCJ and the Board in this case, the WCJ did not err in declining to consider the Opinion and Award of the Arbitration Panel.
We next address Employer's argument that there is not sufficient substantial, competent evidence to support the WCJ's conclusions that Claimant "suffered disc herniations at C5-6 and C6-7 as a result of her June 10, 2008 work injury." (Employer's Br. at 27-28.) Employer argues that the only evidence supporting this finding is Dr. Marcus' testimony, which was based on an MRI report. However, according to Employer, Dr. Marcus did not explain that the herniations mentioned on the MRI report were connected to Claimant's work-related accident, rather, "he testified summarily that because the disc herniations appear on the MRI report, they must be related to Claimant's June 10, 2008 work injury." (Employer's Br. at 29.) Moreover, Employer contends that the WCJ's finding that Employer's expert, Dr. Trabulsi, "conceded that he could not state with certainty whether or not the C5-6 or C6-7 disc herniations were related to the June 10, 2008 incident" is a mischaracterization of Dr. Trabulsi's testimony as a whole. (FOF ¶ 30.) Therefore, Employer argues, the WCJ and the Board erred in expanding the definition of Claimant's injury and in denying Employer's Termination Petition.
Employer's argument essentially challenges the following findings of fact:
26. Dr. Marcus' final diagnosis includes cervical disc herniations at C5-6 and C6-7 which were apparent on MRI, as a result of the accident of June 10, 2008. . . . In his opinion, Claimant's
exacerbation of March 6, 2009 is also the result of the accident of June 10, 2008. As of March 2009, based on his objective findings, Claimant's limitations, and the extent of the pain she had, Dr. Marcus opined that she was unable to perform her full duty work.(FOF ¶¶ 26, 30, 33, 35.) Employer argues that Dr. Marcus' testimony was not sufficient or competent to support an expansion of the definition of Claimant's work-related injury because Dr. Marcus did not discuss the MRI Report describing the disc herniations in his treatment records, and his connection of the disc herniations with Claimant's work-related accident was "conclusory . . . without any support upon clinical examination." (Employer's Br. at 29.)
. . . .
30. Dr. Trabulsi reviewed the July 2008 cervical spine MRI report, which revealed disc herniations at C5-6 and C6-7. Dr. Trabulsi conceded that he could not state with certainty whether or not the C5-6 and C6-7 disc herniations were related to the June 10, 2008 incident. . . .
. . . .
33. The testimony and opinions of Dr. Marcus are credible. His opinions are consistent with the objective diagnostic studies and with his physical examination findings. Dr. Marcus' opinion is credible that as a result of this work injury, Claimant sustained C5-6 and C6-7 disc herniations, as revealed by MRI. . . .
. . . .
35. As of March 6, 2009, Claimant suffered a recurrence of her temporary total disability resulting from her work injury. She returned to regular duty work on August 3, 2009, but has not fully recovered from the work injury. Claimant's work injury is in the nature [of] C5-6 and C6-7 disc herniations, for which Dr. Marcus has treated her.
Section 413(a) of the Act provides that a WCJ:
may, at any time, review and modify or set aside a notice of compensation payable . . . or upon petition filed by either party with the department, or in the course of the proceedings under any petition pending before [the WCJ], if it be proved that such notice of compensation payable . . . was in any material respect incorrect.77 P.S. § 771. Statements by a medical expert that an injury "could have" been caused by a given work-related accident are too equivocal to establish that the injury was work-related. Lewis v. Commonwealth, 508 Pa. 360, 367, 498 A.2d 800, 803 (1985). "In determining whether medical testimony is unequivocal, the medical witness's entire testimony must be reviewed and taken as a whole and a final decision should not rest upon a few words taken out of the context of the entire testimony." Indian Creek Supply v. Workers' Compensation Appeal Board (Anderson), 729 A.2d 157, 160 (Pa. Cmwlth. 1999.) Here, Dr. Marcus' testimony, taken as a whole, is unequivocal that Claimant has disc herniations at C5-6 and C6-7. Likewise, Dr. Marcus unequivocally stated that he believed, within a reasonable degree of medical certainty, that the injuries to Claimant's neck, including the disc herniations, were attributable to Claimant's work-related automobile accident. (Marcus Dep. at 25-26, R.R. at 144A-45A.) Dr. Marcus admitted that he did not mention the MRI report in his treatment notes and that he did not recall exactly when he first reviewed it. (Marcus Dep. at 11-12, 25, R.R. at 141A, 144A.) However, Dr. Marcus unequivocally stated that he reviewed the MRI Report and that, based on the report, it was his medical opinion that Claimant suffered the disc herniations at issue in this case as a result of her work-related accident. (Marcus Dep. at 25-26, R.R. at 144A-45A.)
While Employer may believe that its medical expert, Dr. Trabulsi, was better qualified and more thorough than Dr. Marcus, "[i]t is well established that the WCJ is the ultimate fact finder and is empowered to determine witness credibility and evidentiary weight." Griffiths v. Workers' Compensation Appeal Board (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000). Moreover, the Act does not permit "a party to challenge or second-guess the WCJ's reasons for credibility determinations." Dorsey v. Workers' Compensation Appeal Board (Crossing Construction Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006). Employer appears to argue that the WCJ's credibility determinations or factual determinations were in error because the WCJ mischaracterized Dr. Trabulsi's testimony by finding that "Dr. Trabulsi conceded that he could not state with certainty whether or not the C5-6 and C6-7 disc herniations were related to the June 10, 2008 incident." (FOF ¶ 30.) However, this factual finding is supported by Dr. Trabulsi's testimony. While Dr. Trabulsi's expert opinion was unequivocal that he did not believe that the disc herniations shown on the MRI report were caused by Claimant's work-related accident, he did answer affirmatively, on cross-examination, to the question "you're not able to state with medical certainty that the disc herniations that were manifested on the [MRI report], were not related to" Claimant's work-related accident. (Trabulsi Dep. at 40-41, R.R. at 180A.) Thus, finding of fact 30 did not mischaracterize Dr. Trabulsi's testimony, as Employer argues before this Court. Moreover, the WCJ's factual findings acknowledged that Dr. Trabulsi's ultimate opinion was that "Claimant sustained only soft tissue injuries," he found "no objective findings to substantiate [Claimant's] ongoing complaints," and opined that Claimant "fully recovered from the effects of her work injury and was able to return to work without restriction." (FOF ¶ 29.) Ultimately, the WCJ chose to credit Dr. Marcus over Dr. Trabulsi. This Court is not free to overturn that credibility determination.
For these reasons, this Court affirms the Order of the Board.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, July 9, 2012, the Order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge