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Commonwealth, Dep't of Corrections v. Workers' Compensation Appeal Board

October 1, 2010

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (WAGNER-STOVER), RESPONDENT



The opinion of the court was delivered by: Judge Leavitt

Argued: December 9, 2009

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

The Commonwealth of Pennsylvania, Department of Corrections (Department) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) denying the Department's petition to terminate Brenda Wagner-Stover's (Claimant) workers' compensation benefits. In doing so, the Board held that the Workers' Compensation Judge (WCJ) was free to disregard the adjudication of the Secretary of Corrections that Claimant had fully recovered from her work-related injuries and, thus, was no longer eligible for the benefits provided to prison employees injured on the job by Act 632.*fn1 Because the Secretary's adjudication collaterally estopped the WCJ from finding that Claimant was not fully recovered, we conclude that the Board erred and, thus, reverse.

Factual and Procedural History

Claimant was employed as a canteen manager in the commissary at the State Correctional Institution at Camp Hill when, on October 25, 1989, a prison riot erupted. Claimant was not at work that day. By the next day, when Claimant reported to work, the prisoners had been locked up and were physically incapable of injuring her. They were, however, able to hurl obscenities her way, and they did so. Also on that day, Claimant discovered that her name was on a prisoner "hit list." These events, according to Claimant, caused her to suffer a psychiatric injury. The Department issued a notice of compensation payable (NCP) accepting liability for Claimant's work-related post traumatic stress disorder and agreeing to pay Claimant compensation benefits for total disability under Section 306(a)(1) of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §511(1).*fn2 The Department also paid Claimant full salary in accordance with Act 632.*fn3

Claimant returned to work on two occasions. In 1990, Claimant worked at State Police Headquarters, but she left when she learned that inmates appeared in the building from time to time. Beginning in February 1992, Claimant worked for 16 months as a stock clerk in a Department facility until one day an inmate exposed himself to her. Under a supplemental agreement, the Department acknowledged that this incident caused a recurrence of Claimant's total disability as of June 16, 1993. The agreement also clarified that Claimant was not entitled to collect both her Act 632 and workers' compensation benefits.*fn4

When Claimant refused a job at State Police Headquarters, the Department sought a modification of her disability benefits. The Department also filed a review petition, alleging that Claimant's ongoing medical treatment was no longer related to the work injury but, rather, related to Claimant's pre-existing personality disorder. In 1995, the WCJ denied both petitions. The WCJ agreed with the Department's medical expert, Dr. Gary Glass, that Claimant's ongoing problems were likely related to her personality disorder, which was not work-related. Nevertheless, the WCJ deferred to the opinion of Dr. Henry Wehman, Claimant's treating psychiatrist since 1989, that her post traumatic stress disorder continued to render her not able to work.

Several years later, the Department filed a petition to terminate workers' compensation benefits as of October 1998, alleging that Claimant had fully recovered from her work injury. In the alternative, the Department requested a suspension of benefits because it had again offered Claimant a job she could perform. On May 25, 2000, the WCJ denied both petitions, concluding that Claimant could not perform the offered job and was not fully recovered from her work injury.

In December 2004, the Department offered Claimant a job as a Clerk I in its Office of Professional Responsibility, where inmates never appeared, at a salary higher than her pre-injury wage. Claimant refused the job.

The Department then instituted an administrative proceeding to terminate Claimant's Act 632 benefits. The Department asserted that Claimant had recovered from her post traumatic stress disorder and that any remaining problems were related to her personality disorder. The Department assigned an outside hearing examiner to hear the evidence and to recommend an adjudication.

At the hearing, the Department presented the deposition testimony of Larry A. Rotenberg, M.D., who performed an independent medical examination (IME) of Claimant on June 21, 2004. Dr. Rotenberg is a board certified psychiatrist who has long worked with Vietnam veterans afflicted with post traumatic stress disorder. He began this specialty in 1969 as chief of psychiatry at the Army Medical Center in Okinawa. Dr. Rotenberg conducted an extensive psychiatric interview of Claimant; reviewed her psychological test results; and studied her voluminous medical records. Dr. Rotenberg diagnosed Claimant with a personality disorder, with borderline histrionic and narcissistic features, which he found to pre-exist the 1989 work incident at the Camp Hill prison. Observing that Claimant was not exposed to real danger at the prison, Dr. Rotenberg explained that Claimant's post traumatic stress disorder would have been mild and of short duration, not 15 years. He concluded that Claimant's ongoing symptoms were attributable to her personality disorder and had nothing to do with the 1989 prison riot. Dr. Rotenberg opined that Claimant was capable of doing the work of the Clerk I position offered by the Department.

Claimant testified that a notice to attend an IME triggers memories of the 1989 work incident and causes her to get physically ill. Her symptoms include nightmares and vomiting.

Claimant also presented the deposition testimony of Henry Wehman, M.D., Ph.D., who has treated Claimant for post traumatic stress disorder since 1989. Dr. Wehman opined that Claimant has not recovered and cannot return to work for the Department, because contact with the Department triggers her symptoms. However, Dr. Wehman conceded that Claimant also displays symptoms of a personality disorder and that she might be able to do the Clerk I job.

The Department's hearing examiner accepted the testimony of Dr. Rotenberg over that of Dr. Wehman and made the following relevant conclusions:

3. The [Department] has proved by competent and credible evidence that the Claimant is no longer suffering from work related [post traumatic stress disorder], but rather from a personality disorder NOS with borderline histrionic and narcissistic features which is not work related.

***

6. The Claimant is no longer entitled to Act 632 benefits.

7. The Claimant is now fully recovered from her [post traumatic stress disorder] and is able to return to the Clerk I position at OPR that has been offered to her by the [Department].

Hearing Examiner Opinion, October 28, 2005, at 25, 26; Conclusions of Law 3, 6-7; Reproduced Record at 78a, 79a (R.R. ___) (emphasis added). The hearing examiner recommended that Claimant's Act 632 benefits be terminated immediately.

Claimant filed exceptions to the hearing examiner's proposed report. However, the Secretary of Corrections adopted the hearing examiner's opinion and terminated Claimant's Act 632 benefits in an order of February 17, 2006. Claimant appealed, and this Court affirmed. Stover v. Department of Corrections/SCI-Camp Hill, (Pa. Cmwlth., No. 531 C.D. 2006, filed September 28, 2006).

The Department then filed a petition with the Bureau of Workers' Compensation to terminate Claimant's workers' compensation benefits. Claimant filed an answer denying that she was fully recovered. She also filed a review petition, seeking to amend the description of her work injury on the 1989 NCP to include temporomandibular joint disorder (TMJ). The petitions were heard in one proceeding before the WCJ.

In support of its termination petition, the Department offered the Secretary's adjudication, affirmed by this Court, finding Claimant to be fully recovered from her work-related post traumatic stress disorder as of June 2004. The Department argued that the Secretary's Act 632 adjudication collaterally estopped Claimant from asserting that she was not fully recovered in the workers' compensation proceeding. The Department offered no evidence beyond the Secretary's factual findings.

In opposition to the termination petition, Claimant testified that she is not fully recovered from her post traumatic stress disorder; that she continues to have nightmares and anxiety; and that she is fearful of chance encounters with former inmates whenever she leaves her home. She continues to see Dr. Wehman and Mr. David Timme, a therapist associated with Dr. Wehman, every two weeks. Claimant reiterated that she does not want to work for the Department or in any position in the criminal justice system.

With respect to her review petition, Claimant testified that whenever she thinks about the prison riot, she clenches her jaw so hard that, on occasion, she has broken teeth. She now wears an appliance to protect her teeth. Claimant has been treated for this problem by Donald D. Dinello, D.M.D., an oral and maxillofacial surgeon, since 1995; she sees him every three months.

Claimant submitted an April 24, 2006, report from Dr. Wehman and Mr. Timme, opining that Claimant was not fully recovered from her post traumatic stress disorder and could not work. She did not present their deposition testimony. Claimant also submitted documentation from Dr. Dinello, stating that he has treated Claimant since February 1995 for TMJ. He attributed the TMJ to her post traumatic stress disorder, explaining that her TMJ is largely psychosomatic. Dr. Dinello opined that until Claimant's emotional tension stemming from her post traumatic stress disorder is resolved, her TMJ pain will continue.

The WCJ rejected the Department's argument that the Secretary's adjudication in the Act 632 proceeding was conclusive on the factual question of whether Claimant was recovered from her work injury. Accordingly, he denied the Department's termination petition and imposed unreasonable contest attorney's fees upon the Department for not presenting evidence in support of its termination petition. Finally, the WCJ granted Claimant's review petition and added TMJ as a work injury.

On appeal, the Board reversed the unreasonable contest determination because "there is no brightline law as to when collateral estoppel applies" in Act 632 and workers' compensation proceedings. Board opinion, May 22, 2008, at 14. The Board otherwise affirmed. The Department then petitioned for this Court's review.*fn5

On appeal, the Department raises two issues for our consideration. First, the Department argues that the factual finding in the Act 632 proceeding that Claimant had fully recovered from her work injury was entitled to preclusive effect in the workers' compensation proceeding. Second, the Department argues that the doctrine of res judicata barred Claimant from pursuing a review petition to add TMJ as a newly discovered work injury.*fn6

Collateral Estoppel Effect of Act 632 Adjudication

In its first issue, the Department argues that the Secretary's finding of full recovery in the Act 632 proceeding collaterally estopped the WCJ from finding that Claimant had not fully recovered. As such, the Department asserts, the WCJ was obligated to grant the Department's termination petition as a matter of law.

Collateral estoppel, also known as issue preclusion, is designed to prevent relitigation of questions of law or issues of fact that have already been litigated in a court of competent jurisdiction. Plaxton v. Lycoming County Zoning Hearing Board, 986 A.2d 199, 208 (Pa. Cmwlth. 2009). "Collateral estoppel is based on the policy that 'a losing litigant deserves no re-match after a defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the one he subsequently seeks to raise.'" Id. (quoting McGill v. ...


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