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Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lisa Moore, : Petitioner : : v. : No. 1450 C.D. 2004 : Submitted: January 7, 2005 Workers' Compensation Appeal : Board (Philadelphia Parking : Authority and Old Republic : Insurance Company), : Respondents : OPINION NOT REPORTED MEMORANDUM OPINION PER CURIAM FILED: February 1, 2005 Lisa Moore (Claimant) appeals pro se from an order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) dismissing her reinstatement and penalty petitions because they were barred by the doctrine of collateral estoppel. All that is necessary in deciding this case is a recitation of the previous litigation involving Claimant. Claimant initially filed a claim petition alleging a work injury on September 20, 1994, in the nature of an injury to the low back and left leg. WCJ Goodwin granted the petition on May 5, 1997, and also found on that date that Claimant had fully recovered from that injury and terminated benefits as of February 24, 1995, awarding benefits for a closed period of five months. Claimant did not appeal that decision. Claimant suffered a second work injury on April 12, 1996, for which a Notice of Compensation Payable (NCP) was issued describing her injury as a "contusion of the left arm and shoulder." Claimant's Employer, the Philadelphia Parking Authority, filed a termination petition alleging that she had fully recovered and a suspension petition in the alternative. Claimant responded by filing a review petition to add to the NCP an additional injury to the left foot. The petitions were consolidated for a hearing before WCJ Goodwin, and Claimant submitted medical evidence at the hearing, including records from Industrial Health Clinic of Episcopal Hospital and Temple University Hospital. WCJ Goodwin denied the review petition and the termination petition, but granted the suspension petition finding that Claimant had exhibited bad faith by not accepting an available job from Employer. Claimant's benefits were suspended as of September 9, 1996. Claimant appealed the WCJ's decision to the Board which affirmed the decision and she appealed that decision to this Court. In an unreported decision, we affirmed the Board.1 While those appeals were pending, Claimant filed a reinstatement petition, a claim petition and a review petition. At a hearing before WCJ Gagai, Claimant presented the identical medical evidence from Industrial Health Clinic of Episcopal Hospital that she had in the previous proceedings. However, at this hearing, Claimant argued that Employer had now fired her and that had rendered the offer of an available job moot. WCJ Gagai issued a decision concluding that because Claimant's medical evidence and her testimony pre-dated the date of the 1 See Moore v. Workers' Compensation Appeal Board (Philadelphia Parking Authority), (Pa. Cmwlth. Ct., No. 316 C.D. 2000, filed March 19, 2001.) 2 suspension of benefits, Employer's termination of her did not make the offered job unavailable. WCJ Gagai then denied all three of her petitions on the grounds of collateral estoppel and res judicata. Claimant appealed WCJ's Gagai's decision to the Board which affirmed that decision. Claimant next filed a petition for a review of a utilization review determination along with a penalty petition on November 11, 1999. At the hearing before WCJ Seelig, Claimant alleged that the medical treatment she had been receiving from Dan Gzesh, M.D., was reasonable and necessary contrary to the UR determination, and that Employer had violated the Workers' Compensation Act by failing to pay her physician's bills. WCJ Seelig determined that Claimant was attempting to add injuries to those that had been accepted by Employer for her injury of April 12, 1996, because they included injuries to her left foot, back, neck and carpal tunnel syndrome when her original injury was to her left arm and shoulder. Concluding that those issues had already been litigated, WCJ Seelig concluded that the doctrine of res judicata applied and dismissed Claimant's petitions. Claimant did not appeal that decision. Claimant then filed another reinstatement petition and a penalty petition that are the subject of this appeal. At the hearing before WCJ Hagan, Claimant submitted the same medical records from Industrial Health Clinic of Episcopal Hospital and Temple University Hospital. She also submitted the same documents regarding her termination of employment as had been previously reviewed by WCJ Gagai. As did the two WCJ's before him, WCJ Hagan denied Claimant's petitions finding that they were barred by the doctrines of collateral 3 estoppel and res judicata. In findings of facts 15 through 19, the WCJ explained further: 15. My careful review of the evidence submitted by claimant after the circulation of my interlocutory order of 24 July 2002 (which order was intended to clarify what claimant needed to accomplish in order to prevail)2 does not change my earlier observation that there is no evidence of any changed condition related to the accepted injury of 12 April 1996. 16. What's more, claimant testified that this Reinstatement Petition was prepared by her and was truthful, yet she stated that she was available for unrestricted work. That statement involves no legal or medical terms of art; it is nothing but plain English. It is an admission by claimant. 17. I conclude as a matter of fact that the petitions now before me are also attempts to relitigate issues repeatedly decided in earlier cases. 18. Ms. Moore is actually seeking to reinstate compensation benefits from a date which occurs before benefits were suspended by Judge Goodwin. This is a legal impossibility where the suspension was fully litigated and decided by the judge on the merits. 19. With respect to the Penalty Petition, I do find that defendant did not file its NCP within the time prescribed by law. It was issued 20 June 1996, over two months after the injury date. However, claimant did not bring this violation up for almost six years! There is no 2 WCJ Hagan's interlocutory order indicated the status of the case and directed the parties to provide competent evidence at the hearing to support their positions, i.e., that Claimant provide competent evidence that her physical condition had changed warranting a reinstatement of benefits even though she was declining to offer any new medical evidence. 4 evidence that benefits were delayed or held up at any time. (WCJ's March 19, 2003 decision at 5.) (Emphasis in original.) Claimant appealed WCJ Hagan's decision to the Board arguing that his decision was not based upon substantial competent evidence. The Board agreed with WCJ Hagan that Claimant was attempting to relitigate issues that had been decided more than once in prior proceedings, and her claim was barred by the doctrine of collateral estoppel.3 This appeal by Claimant followed.4 Claimant contends that the Board erred in affirming WCJ Hagan's decision because her new injuries her left leg, arm, neck, middle and lower back were not previously litigated. Without going into excruciating detail to explain why we will not address her argument, we can only state that her claim regarding her new injuries was raised previously before three WCJs and was dismissed as being previously litigated. Our review of the record indicates that the facts as 3 The doctrine of collateral estoppel bars relitigation of an issue of law or fact in a subsequent action where 1) the legal or factual issue are identical; 2) they were actually litigated; 3) they were essential to the judgment; and 4) they were material to the adjudication. Joyce v. Workers' Compensation Appeal Board (Stylette Plastics, Inc.), 709 A.2d 1011 (Pa. Cmwlth. 1998). Res judicata bars relitigation when there is an identity in the thing sued upon; identity in the cause of action; identity of the persons and parties to the action; and identity of the quality or capacity of the parties suing or being sued. Volkswagon of America, Inc., v. Workers' Compensation Appeal Board (Bennett), 858 A.2d 151 (Pa. Cmwlth. 2004). 4 Our scope of review of the Board's decision 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. Schemmer v. Workers' Compensation Appeal Board (U.S. Steel), 833 A.2d 276 (Pa. Cmwlth. 2003), petition for allowance of appeal denied, ___ Pa. ___, 852 A.2d 314 (2004). 5 recited by WCJ Hagen in his decision are accurate. Claimant has no basis left for raising any argument regarding additional injuries relative to her 1994 injury or her 1996 injury for that matter. Because Claimant has made these same arguments before and they have been decided previously, WCJ Hagan properly determined that they are barred by the doctrine of collateral estoppel. Claimant is cautioned against filing petitions and raising these same arguments again relative to these same injuries.5 Accordingly, the order of the Board is affirmed. 5 Claimant's argument regarding penalties is also without merit because she failed to raise it in a timely fashion. 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lisa Moore, : Petitioner : : v. : No. 1450 C.D. 2004 : Workers' Compensation Appeal : Board (Philadelphia Parking : Authority and Old Republic : Insurance Company), : Respondents : O R D E R PER CURIAM AND NOW, this 1st day of February, 2005, the order of the Workers' Compensation Appeal Board, dated May 25, 2004, at No. A02-0809, is affirmed.
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