The opinion of the court was delivered by: Mary Hannah Leavitt, Judge
Submitted: January 6, 2012
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
Cytemp Specialty Steel (Employer) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) granting, on this Court's remand, the claim petition of Richard Crisman (Claimant). In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ) that Claimant was totally disabled as of November 7, 1995, by a 1992 neck injury. Concluding that the issue of Claimant's disability as of November 7, 1995, has been previously litigated, we reverse the Board.
The nature and extent of Claimant's loss of earning power has been the
subject of extensive litigation spanning two decades.*fn1
This prior litigation must be parsed in order to demonstrate
why the factual and legal issues set forth in the instant claim
petition have been previously litigated and decided.
Claimant began working for Employer as a mill hand in 1973 and has reported work injuries to Employer on many occasions, including, inter alia, one onSeptember 23, 1992, and one on May 7, 1993. Employer issued incident reports for each reported injury, but Claimant continued working until September 8, 1993. At that time, Employer issued a Notice of Compensation Payable (NCP) listing Claimant's work injury date as May 7, 1993, and describing the injury as a "cervical sprain." Reproduced Record at 14a (R.R. ___). The NCP accepted liability and began paying total disability as of September 8, 1993. Claimant has treated with James R. Macielak, M.D. for his work injury since June 1993.
In March 1995, after litigation, Claimant's benefits were reduced to partial disability as of March 7, 1994. The WCJ ordered this modification because Claimant refused to accept an available full-time, light-duty position with Employer. The Board affirmed, as did this Court. Crisman v. Workers' Compensation Appeal Board (Cytemp Specialty Steel), 740 A.2d 767 (Pa. Cmwlth. 1999).
Employer referred Claimant to the Vocational Rehabilitation Center, which found him a full-time position working in a Salvation Army thrift store. Claimant began working at the store on May 30, 1995, but he left on November 7, 1995.
In July 1997, the WCJ reduced Claimant's partial disability benefits as of May 30, 1995, to reflect his actual wage at the Salvation Army. The WCJ specifically found that Claimant was capable of doing the job with the Salvation Army "as of May 30, 1995, and at all times subsequent to May 30, 1995." WCJ Decision, July 22, 1997, at 6; Finding of Fact 11 (emphasis added). The WCJ rejected Claimant's defense that he was totally disabled as of November 7, 1995.
The WCJ found, as fact, that Claimant was physically able to do the Salvation Army job. The WCJ also found that Claimant's shoulder tendonitis was not related to his May 7, 1993, work injury.
Claimant then filed a claim petition against the Vocational Rehabilitation Center. Claimant alleged that he had sustained injuries while working at the Salvation Army store and that these injuries had totally disabled him as of November 7, 1995. Specifically, Claimant alleged that on ten different occasions he sustained injuries to his back, chest, both shoulders, both wrists, right arm, right thumb, left hip, both knees, and right foot and that the job caused, or aggravated, his atrial fibrillation. The Vocational Rehabilitation Center joined Employer on the theory that Claimant's injuries might be recurrences of the work injury he sustained while working for Employer.
On September 18, 2000, the WCJ denied both the claim and joinder petitions. The WCJ rejected the testimony of Claimant and Dr. Macielak, his longtime treating physician, and credited the testimony of Employer's medical expert, Michael Baxley, M.D. and the Center's medical expert, Patrick Laing, M.D. The WCJ found that Claimant had not sustained either a new injury or a recurrence of his prior work injury that rendered him disabled as of November 7, 1995. Again, the WCJ found Claimant capable of doing the Salvation Army job.
Claimant appealed. The Board vacated and remanded for the WCJ to accept and evaluate newly discovered evidence concerning Claimant's right shoulder problem, which required surgery. On March 24, 2003, the WCJ found that Claimant's shoulder surgery was not work-related. The WCJ reaffirmed all other prior findings and, again, denied the claim and joinder petitions. Claimant appealed to the Board, seeking another opportunity to present evidence that the injuries he sustained while working at the Salvation Army were recurrences of injuries he sustained while working for Employer. The Board denied Claimant's request, explaining that the credible medical experts had found that "Claimant had a long history of work injuries dating back to 1990 [but] there was no objective evidence of residuals from any of the injuries complained of by Claimant." Board Adjudication, September 16, 2004, at 8.
Throughout the foregoing litigation, Claimant continued to receive partial disability benefits. By May 2003, he had received 500 weeks of partial disability, at which point his disability benefit terminated ...