Submitted: September 2, 2016
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,
HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE JAMES GARDNER
COLINS, Senior Judge.
April 3, 2017, upon consideration of petitioner's
application for reconsideration, the application is granted.
opinion and order filed February 6, 2017, are withdrawn.
attached opinion and order are entered.
HANNAH LEAVITT, President Judge.
Merrell (Claimant) petitions for review of an adjudication of
the Workers' Compensation Appeal Board (Board) that
granted Claimant medical compensation but not disability. In
doing so, the Board affirmed the decision of the Workers'
Compensation Judge (WCJ). Claimant argues that the Board
erred because the WCJ was bound by the decision of the
arbitrator that awarded him disability under the Heart and
Lung Act for the same injury. Concluding that the
arbitrator's decision did not have collateral estoppel
effect in the workers' compensation proceeding, we
worked for the Department of Corrections (Employer) as a
corrections officer trainee at the State Correctional
Institution at Graterford. On October 12, 2013, Claimant bent
his right knee in an awkward way while carrying food trays
down a flight of steps, causing immediate pain. A supervisor
directed Claimant to the prison's medical facility, which
sent him to Pottstown Hospital. There, Claimant's leg was
x-rayed, which was negative, and he was given a knee
immobilizer and pain medication. Claimant returned to work to
complete his shift. Two days later, Claimant saw another
physician who ordered an MRI. A few weeks later, Claimant met
with an orthopedic surgeon, Dr. Greene, who prescribed pain
medication and suggested physical therapy. Dr. Greene
released Claimant to return to work with restrictions. On
November 14, 2013, Claimant returned to work but left after
several days because of knee pain. Claimant returned to Dr.
Greene, who again restricted him to sedentary work, which
Employer did not have available.
filed a claim for benefits under the Heart and Lung Act,
which was denied by Employer. Under the terms of the
collective bargaining agreement between the Pennsylvania
State Corrections Officer Association and Employer, an
arbitrator was assigned to hear Claimant's grievance of
the denial of Heart and Lung benefits. A hearing was held on
January 8, 2014, at which Claimant and Employer presented
evidence, in the form of depositions and exhibits.
deposition, Claimant described the incident of October 12,
2013, as follows:
That morning, as I was taking breakfast trays from the
inmates … I was going down the steps, I was carrying
six --- five, six, seven trays. I stepped down with my right
foot and as my left foot came down my right knee bent sharply
backwards. I was able to continue walking down the steps.
From that moment on, I was having --- I had a little bit of a
limp and I was in a lot of pain.
Reproduced Record at 34a (R.R. ___). Claimant continued
working. When asked why he did not seek immediate medical
treatment, Claimant responded:
As a trainee, I didn't want to make waves and complain. A
lot of people don't like to work in the restricted
housing units, and as a trainee, I didn't want to give
them the illusion that I did not want to be there, that I was
afraid of the inmates. I prefer to have the trust and
confidence of my fellow officers.
R.R. 39a. Claimant also presented a report from Dr. Greene,
his orthopedic surgeon.
presented the medical deposition of Dr. David Cooper, a board
certified orthopedic surgeon. Dr. Cooper testified that he
met with Claimant on June 2, 2014; obtained Claimant's
medical history; performed a physical examination; and
reviewed the results of an MRI done on October 21, 2013. Dr.
Cooper opined that Claimant suffered from chronic arthritis
in the right knee. He stated that the MRI did not reveal a
ligament or meniscal tear that would be consistent with
trauma and, thus, he could not attribute Claimant's knee
pain to the October 12, 2013, work incident. Moreover, Dr.
Cooper testified that assuming there was some hyperextension
of the right knee caused by the work incident, it would have
caused a soft tissue injury, i.e., a right knee
sprain. Dr. Cooper concluded that if Claimant had sprained
his knee, it was fully recovered.
September 24, 2014, the arbitrator issued an award granting
Claimant Heart and Lung benefits. The arbitrator credited
Claimant's testimony finding it was "direct, clear
and forthright." Arbitration Award at 13; R.R. 131a. He
specifically found that Claimant's delay in reporting his
injury was not dispositive and Claimant's behavior was
"a reasonable response under the circumstances."
Id. Further, the arbitrator credited the medical
opinion of Dr. Greene, explaining his reasoning as follows:
In determining which of these clear, unequivocal competing
[medical] opinions to rely on I find most compelling the fact
that [Claimant], who was thirty five years old at the time of
the October 12, 2013 injury, had never experienced any prior
knee problems. Dr. Greene likewise found this critical to his
opinion. If, as Dr. Cooper opines, [Claimant's] pain is
now solely the result of degenerative conditions in his knee,
he would have had other indications of these conditions
before this injury. I cannot disregard the fact that, all of
[Claimant's] knee problems began after the work injury.
Therefore, also mindful that I can give deference to the
treating physician's opinion, I credit the opinion of Dr.
Arbitration Award at 15; R.R. 133a.
April 28, 2014, Claimant filed a claim petition under the
Workers' Compensation Act,  alleging his right knee
hyperextension and medial compartment arthrosis were caused
by the work incident on October 12, 2013, and left him unable
to work. He sought disability benefits as of October 29,
2013, and ongoing. Employer filed an answer, denying all
hearing before the WCJ, Claimant moved for an award of
disability compensation based upon the arbitrator's award
of Heart and Lung benefits. Claimant argued that the
arbitrator's award was binding on the WCJ under the
doctrine of collateral estoppel. Claimant offered the
arbitrator's award and Claimant's deposition from the
arbitration, but he did not offer any medical evidence.
Employer disputed the application of collateral estoppel. It
presented the medical deposition testimony of Dr. David
Cooper that it had offered in the Heart and Lung arbitration.
denied Claimant's motion for an award of disability
benefits, holding that she was not collaterally estopped by
the arbitration award. The WCJ found that Claimant sustained
a work injury on October 12, 2013, but he did not prove a
wage loss caused by the work injury. The WCJ granted
Claimant's claim petition for medical benefits from
October 12, 2013, up to June 2, 2014; he denied disability
benefits. Claimant appealed to the Board.
appeal to the Board, Claimant argued that the arbitration
award resolved the issue of his disability and is binding in
the workers' compensation proceeding. The Board rejected
this argument. The Board reasoned that "the instant
workers' compensation case dealt with a potentially
indefinite period of disability and was a more formal setting
than the previous Heart and Lung arbitration[, t]hus …
the stakes were lower in the previous proceedings and could
not have a preclusive effect." Board Adjudication at 3.
Claimant now petitions this Court for review.
this Court, Claimant argues that the arbitrator's finding
that he was temporarily disabled and, thus, entitled to Heart
and Lung benefits precluded the WCJ from finding that
Claimant was not entitled to disability benefits under the