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09/19/97 DONNA M. KING v. WORKMEN'S COMPENSATION

September 19, 1997

DONNA M. KING, APPELLEE,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (K-MART CORPORATION), APPELLANT.



Appeal from the Order of the Commonwealth Court entered September 8, 1995, at No. 72 C.D. 1995, reversing the Order of the Workmen's Compensation Appeal Board entered December 9, 1994, at No. A93-1884. Before: Flaherty, C.j., And Zappala, Cappy, Castille, And Nigro, JJ. Mr. Justice Zappala. Madame Justice Newman did not participate in the consideration or decision of this case. Mr. Justice Cappy files a Concurring Opinion in which Mr. Justice Castille joins.

The opinion of the court was delivered by: Zappala

JUSTICE ZAPPALA

DECIDED: September 19, 1997

This case involves an employer's petition to terminate workers' compensation benefits due to the claimant's complete recovery, where a previous petition based on the same grounds was denied. Commonwealth Court held that the second petition "must fail by reason of issue preclusion," because the employer failed to demonstrate that the claimant's condition had changed after the denial of the first termination petition. King v. Workmen's Compensation Appeal Board (K-Mart Corporation), 664 A.2d 1087, 1091 (Pa. Commw. 1995). We reverse.

Donna King injured her back on January 16, 1980, while working for K-Mart Corporation. Pursuant to a Notice of Compensation Payable, K-Mart began paying benefits for total disability at the rate of $121.00 per week. In July of 1983, K-Mart filed a petition to terminate benefits, asserting that King was no longer disabled. In support of its petition, K-Mart presented the deposition testimony of Dr. John T. Williams, who had examined King on July 14, 1983, and was unable to find any cause or explanation for her complaints of pain. He offered the opinion that King was able to return to her normal work duties. King presented the deposition testimony of Dr. Ronald B. Greene, who had examined her on February 17, 1984. He described King's condition as chronic coccydynia *fn1 and opined that she was permanently disabled from working. In July of 1987, the referee denied the termination petition based on his finding that Greene's testimony was more persuasive than Williams's.

In February of 1990, K-Mart filed a second petition to terminate. In support of this petition, K-Mart presented the deposition of Dr. Marc Manzione, who had examined King on August 8, 1989, and found no objective physical basis for King's complaints of pain. King presented the deposition of Dr. Andrew Newman, who examined her on May 3, 1990, and the earlier deposition of Dr. Greene. King also testified herself, as did her husband.

On June 18, 1993, the termination petition was granted. The referee found Dr. Newman's testimony less credible than Dr. Manzione's, and therefore accepted Dr. Manzione's Conclusions and rejected Dr. Newman's. He found that, "As of the date of Manzione's examination, Ms. King was fully recovered from her work-related injury. Any disability that she suffered from was the result of some other cause and not related to her work injury." The referee rejected King's argument that because of the result of the earlier petition K-Mart was barred by res judicata from bringing this petition.

On appeal, the Workmen's Compensation Appeal Board affirmed. The Board agreed with the referee that this termination petition was not barred by res judicata, and determined that there was substantial competent evidence, in the form of Dr. Manzione's testimony, to support the finding that King's disability from her work-related injury had ceased.

On further appeal, Commonwealth Court reversed. The court's opinion contained a review of the doctrine of res judicata derived from its decision in Hebden v. Workmen's Compensation Appeal Board (Bethenergy Mines), 142 Pa. Commw. 176, 597 A.2d 182 (Pa. Commw. 1991). The court acknowledged that this Court had reversed the order in that case, 534 Pa. 327, 632 A.2d 1302 (1993), but explained that our decision, while agreeing with the Discussion of res judicata, indicated that an employer, in proceedings to modify or terminate benefits, may not relitigate the original diagnosis. Unfortunately, the remainder of the Commonwealth Court opinion gave no indication of the reason for the citation to Hebden or the part it played in the analysis and decision of this case. It is thus unclear whether the court found our decision in Hebden controlling in this case, or whether the court was merely reiterating the language of its own decision in Hebden with respect to the doctrine of res judicata, finding our decision inapplicable but discussing it simply as the later history of the cited case. We find our Hebden decision entirely inapplicable.

The claimant in Hebden was awarded workers' compensation benefits by a referee upon a finding that he had coal worker's pneumoconiosis. The employer later sought modification. In the course of explaining their opinion that the claimant was not disabled, the employer's medical experts testified that the claimant had bronchial asthma, not pneumoconiosis. One of these doctors conceded on cross-examination that if the claimant did not have pneumoconiosis at the time the doctor examined the claimant, he would not have had it previously. This coincided with the claimant's physician's testimony that pneumoconiosis is irreversible.

Nevertheless, the referee accepted the employer's experts' testimony that the claimant did not have pneumoconiosis and terminated benefits, a decision that was affirmed by the Board and the Commonwealth Court. In reversing, we determined that the unrefuted testimony that pneumoconiosis is irreversible precluded the employer from asserting and the referee from finding that the claimant did not have the disease.

Here, despite Dr. Greene's testimony in the first proceeding that characterized King's injury as "permanent," and Dr. Newman's testimony in the second proceeding that in his own experience he had never had a coccydynia patient get better, there is no basis in this record for characterizing coccydynia as irreversible. The testimony of Dr. Manzione suggested that coccydynia "generally responds to conservative treatment" that protects the area of the coccyx from direct pressure, and that injections and surgery may be employed to relieve the pain. Thus at the very least, K-Mart produced evidence that the condition King had been diagnosed with was changeable.

K-Mart did not argue and its witness did not suggest that King never suffered a work-related back injury. With respect to both the first and second termination petitions, K-Mart argued only that King was no longer disabled on account of that injury. Nor did K-Mart in the second termination proceeding either explicitly or implicitly challenge the referee's Conclusion in the first proceeding that King was still disabled in 1983.

Plainly, our decision in Hebden has no bearing on the analysis of this case. Indeed, our opinion in ...


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