Opinion
No. 983 C.D. 2014
12-12-2014
Michelle Lash, Petitioner v. Workers' Compensation Appeal Board (Jay Foulkroad and Son, Inc.), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Michelle Lash (Claimant) petitions for review of an October 18, 2011 Order of the Workers' Compensation Appeal Board (Board) affirming the Workers' Compensation Judge's (WCJ) Decision which, relevant to this appeal, granted, in part, Jay Foulkroad and Son, Inc.'s (Employer) Petition to Review Medical and denied, in part, Claimant's Petition to Review Medical. On appeal, Claimant argues that the WCJ erred by not applying the principle of res judicata when he ordered that Employer was no longer required to pay for Claimant's attendant care services and massage therapy. Because the principle of res judicata does not apply to this action and we discern no error, we affirm.
Claimant suffered a work related injury to her left ankle in 1993. (WCJ 2002 Decision, Findings of Fact (2002 FOF) ¶ 9, R.R. at 9a.) Thereafter, Claimant began receiving workers' compensation (WC) benefits pursuant to a Notice of Compensation Payable. (2002 FOF ¶ 9, R.R. at 9a.) A WCJ determined in 1997 that the work injury included reflex sympathetic dystrophy and directed Employer to pay for those reasonable and necessary medical expenses causally related to Claimant's condition. (2002 FOF ¶¶ 9, 10, R.R. at 9a.) Claimant filed a variety of petitions in 2001 alleging, inter alia, that Employer failed to pay for reasonable and necessary medical expenses causally related to her work injury. (2002 FOF ¶¶ 3-6, R.R. at 8a-9a.) Employer also filed a petition for termination. (2002 FOF ¶ 7, R.R. at 9a.) On December 6, 2002, after consolidating the petitions and hearing arguments, the WCJ found, in relevant part, that Claimant had not recovered from her injury and that Employer was liable for the costs of attendant care and massage therapy because these medical treatments were reasonable, necessary, and causally related to Claimant's work injury. (2002 FOF ¶¶ 160, 166, R.R. at 27a-28a.) The WCJ 2002 Decision was subsequently appealed to the Board, which affirmed as to all issues relevant herein. (2004 Board Op., C.R. at C-8.)
In 2009 both parties once again filed a variety of petitions. Employer filed a Petition to Review Medical on January 7, 2009 asserting that some of Claimant's services were not causally related to her work injury. (WCJ 2010 Decision, Findings of Fact (2010 FOF) ¶ 3.) Claimant subsequently filed four petitions, including a Penalty Petition and a Petition to Review Medical, which asserted that Employer failed to pay for massage therapy and attendant care services as ordered by the WCJ 2002 Decision. (2010 FOF ¶¶ 5-6.) Employer asserted that it was no longer responsible for paying for these services because this Court decided in the intervening years that medical services provided by persons not licensed to provide such services were not compensable. (2010 FOF ¶ 83.)
In the WCJ 2010 Decision, the WCJ addressed the massage therapy and attendant care question by first resolving conflicting medical opinions. The WCJ found that the attendant care services and massage therapy were causally related to Claimant's work injury and that Employer violated the Workers' Compensation Act (Act) by failing to pay for such services as previously ordered. (2010 FOF ¶¶ 108, 109; WCJ 2010 Decision, Conclusions of Law (2010 COL) ¶¶ 10, 18.) However, the WCJ concluded further that Employer was not responsible for payment of the expenses related to the attendant care services and massage therapy after the date of the WCJ 2010 Decision because these services were not provided by a licensed health care provider. (2010 COL ¶¶ 13-16.) As support for this conclusion, the WCJ relied on this Court's decisions in Taylor v. Workers' Compensation Appeal Board (Bethlehem Area School District), 898 A.2d 51, 54 (Pa. Cmwlth. 2006) (holding that a vocational expert's lack of professional licensure meant that the employer did not have to pay for his services, despite the fact that the claimant's physician wrote a prescription for vocational expert services) and Boleratz v. Workers' Compensation Appeal Board (Airgas, Inc.), 932 A.2d 1014, 1019 (Pa. Cmwlth. 2007) (holding that the services of an unlicensed massage therapist are not reimbursable under the Act, even if the services are prescribed by a health care provider). Both parties sought review before the Board.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4; 2501 - 2708.
On appeal to the Board, Claimant argued that the WCJ erred by not giving the WCJ 2002 Decision res judicata effect. Three of the Board's Commissioners agreed with Claimant that the portion of the WCJ 2002 Decision relating to attendant care services and massage therapy should not be disturbed on res judicata grounds. (2011 Board Op. in Support of Reversal in Part and the Remand of the March 31, 2010 Decision and Order.) The three other Commissioners, however, concluded that res judicata did not apply. (2011 Board Op. in Support of Affirmance in Part and Remand of the March 31, 2010 Decision and Order.) Because the Board was equally divided, the WCJ 2010 Decision was affirmed. (2011 Board Order.) Claimant now petitions this Court for review.
"Our scope of review in a workers' compensation appeal is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated." Elberson v. Workers' Compensation Appeal Board (Elwyn, Inc.), 936 A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007). Our review is plenary when examining questions of law. Land O'Lakes, Inc. v. Workers' Compensation Appeal Board (Todd), 942 A.2d 933, 936 n. 3 (Pa. Cmwlth. 2008).
On appeal to this Court, Claimant argues that the WCJ erred by finding that the attendant care services and massage therapy she was receiving were no longer reimbursable when the prior WCJ 2002 Decision determined that Employer was liable for the services. Claimant contends that the WCJ should have given the WCJ 2002 Decision res judicata effect and determined that Employer continued to be liable to compensate for these services.
We note that our recent decision in Moran v. Workers' Compensation Appeal Board (McCarthy Flowers, Donegal Mutual Insurance), 78 A.3d 1245, 1250 (Pa. Cmwlth 2013), we held that the employer was responsible for paying for massage therapy provided to the claimant by a licensed practical nurse because the employer "failed to establish that massage therapy did not come under the duties of an LPN." However, Claimant makes no argument on appeal that her attendant care services and massage therapy were provided by licensed health care professionals. Claimant also does not argue that Taylor and Boleratz should not apply. As such, we will not disturb the WCJ 2010 Decision in this regard and solely address whether res judicata is applicable here. --------
We begin our plenary inquiry with a brief examination of the doctrine of res judicata. The doctrine of res judicata actually "encompasses two related, yet distinct, principles: technical res judicata and collateral estoppel." Maranc v. Workers' Compensation Appeal Board (Bienenfeld), 751 A.2d 1196, 1199 (Pa. Cmwlth. 2000). Claimant in this appeal is relying on technical res judicata. Technical res judicata, often referred to as claim preclusion, bars future suits between the parties on the same cause of action once a final judgment on the merits has been reached. Henion v. Workers' Compensation Appeal Board (Firpo & Sons, Inc.), 776 A.2d 362, 365 (Pa. Cmwlth. 2001). The goal of the doctrine is to preserve judicial resources by preventing relitigation of claims that have already been decided and to avoid the uncertainty that would plague the judicial system if judgments were constantly subject to future changes. Id.; see also Fiumara v. Texaco, Inc., 236 A.2d 516, 518 (Pa. 1968) (holding that a case which has "finally and fully been determined" cannot be "later [] relitigated if the law with respect thereto seems later to change").
The doctrine of technical res judicata includes both claims that have been litigated and those that should have been litigated. Henion, 776 A.2d at 366. The doctrine is only utilized in cases where the following four factors are all identical and present: "(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. In the instant case, only the second element is at issue. "Generally, causes of action are identical when the subject matter and the ultimate issues are the same in both the old and new proceedings." Id.
The primary focus in determining whether the cause of action is the same is whether the "ultimate and controlling issues presented in a proceeding have been decided in a prior proceeding in which the parties actually had an opportunity to appear and assert their rights." Linton v. Workers' Compensation Appeal Board (Amcast Industrial Corporation), 991 A.2d 376, 381 (Pa. Cmwlth. 2010). Determining whether the subject matter and ultimate issues are the same requires "considering the similarity in the acts complained of and the demand for recovery, as well as the identity of the witnesses, documents and facts alleged and whether the same evidence is necessary to prove each action." Swift v. Radnor Township, 983 A.2d 227, 232 (Pa. Cmwlth. 2009). A party cannot escape the operation of res judicata simply "by varying the form of action or adopting a different method of presenting the case." Id.
According to Claimant, res judicata applies to this case for two reasons: (1) the arguments and evidence presented at both proceedings were similar; and (2) Employer waived the right to raise the argument rooted in Taylor and Boleratz because it failed to raise this issue in the 2002 proceeding.
First, Claimant is correct that there was some overlap between the evidence presented and arguments made in the 2002 (old) and 2010 (new) proceeding. This level of overlap is unsurprising as the WCJ, in both cases, consolidated multiple petitions and whether certain treatments or services were reasonable and necessary or causally related to Claimant's work injury were at issue in both. Notwithstanding the overlap, the ultimate issue in the 2010 proceeding was whether the treatments or services in question were reimbursable under the Act. Whether certain treatments or services are compensable and whether the services are reimbursable under the Act are different issues. In general, an employer must compensate for work-related injuries. See Section 301(a) of the Act, 77 P.S. § 431 (providing, in relevant part, that "[e]very employer shall be liable for compensation for personal injury to, or for the death of each employe, by an injury in the course of his employment"). Conversely, medical and other services are only reimbursable under the Act if they are provided by a physician or other "health care provider." See Section 306(f)(1)(i) of the Act, 77 P.S. § 531(1)(i) (providing, in relevant part, that "[t]he employer shall provide payment in accordance with this section for reasonable surgical and medical services, services rendered by physicians or other health care providers"). Questions related to whether Claimant's attendant care services and massage therapy are reasonable and necessary treatments causally related to Claimant's work injury go to compensability and do not control the question of whether the services are reimbursable under Section 306(f)(1) of the Act as interpreted by this Court in Taylor and Boleratz. For example, the attendant care services and massage therapy may be reasonable and necessary treatments and, therefore, generally compensable; however, if they are not provided by a licensed provider, under the Act, Employer would not be responsible for the costs of these services until they are provided by a licensed provider.
We conclude, therefore, that while the subject matter - compensability for attendant care services and massage therapy - was the same in the 2002 and 2010 proceedings, the ultimate issues were different. Because the ultimate issue in the 2002 proceeding was whether these services were compensable and the ultimate issue in the 2010 proceeding was whether these services were reimbursable in accordance with Section 306(f)(1) of the Act, technical res judicata does not apply.
Second, Claimant argues that Employer waived the right to pursue a challenge, based on Taylor and Boleratz, in 2010 because it failed to raise the issue in 2002 of whether the attendant care services and massage therapy were reimbursable because the providers were not licensed. As support for this argument, Claimant relies on this Court's decision in Merkel v. Workers' Compensation Appeal Board (Hofmann Industries), 918 A.2d 190 (Pa. Cmwlth. 2007).
Employer contends that it was unaware in 2002 that the attendant care services and massage therapy were being performed by unlicensed providers; therefore, it could not have raised this issue in 2002. Claimant does not rebut Employer's contention. In addition, there are no findings of fact and conclusions of law in the 2002 WCJ Decision that address or touch upon the issue of whether the providers rendering these services were licensed or unlicensed. Thus, as there is no evidence that Employer was aware that the attendant care services and massage therapy that Claimant was receiving were being performed by unlicensed providers, it does not appear that Employer could have raised this issue in 2002.
We further conclude that Claimant's reliance on Merkel is misplaced. The claimant in Merkel challenged how a WCJ calculated his average weekly wage (AWW), arguing that the change in decisional law since the WCJ's order required a new calculation. Merkel, 918 A.2d at 192. Precisely, the claimant argued that the original proceeding addressed which provision of the Act should be applied to calculate his AWW, whereas the issue in the later proceeding was how his AWW should be calculated under a recent interpretation of the Act. Id. at 193. This Court, in holding that res judicata applied, found that the ultimate issue in both the old and new proceeding was whether the AWW was improperly calculated. Id. We reasoned that since the ultimate issues were the same in the old and new proceeding, and the matter could have been litigated in the prior proceeding, Claimant waived his right to raise the issue of how his AWW should be calculated in the second proceeding. Id. However, because we conclude in this matter that the ultimate issue in the 2002 proceeding and the 2010 proceeding differ, and there is no record evidence as to whether the providers involved in 2002 were licensed, Merkel is inapplicable.
Claimant's argument that intervening case law should not disturb a previous judgment is also unavailing. Claimant's contention would be more persuasive if the WCJ applied our decisions in Taylor and Boleratz to void previously awarded benefits. It is a well-settled principle that changes in decisional law which occur during litigation will be applied retroactively to cases pending on appeal, but changes in statutory interpretation decided, as here, after a litigation ended does not render a previous order void. Hrivnak v. Workers' Compensation Appeal Board (R & L Development), 791 A.2d 1281, 1285 (Pa. Cmwlth. 2002).
Here, the WCJ did not apply our recent precedents to void a previous order. Instead, the change in decisional law was applied only prospectively and the WCJ correctly ruled that Employer was still required to pay for Claimant's attendant care services and massage therapy prior to the date of the WCJ 2010 Decision. When the 2010 petitions were filed, Taylor and Boleratz controlled the disposition of this matter, not the WCJ 2002 Decision.
For the foregoing reasons, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, December 12, 2014, the Order of the Workers' Compensation Appeal Board entered in the above-captioned matter is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge