P. Linton v. WCAB (Amcast Industrial Corp.) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Paul Linton, Petitioner v. Workers Compensation Appeal Board (Amcast Industrial Corporation), Respondent BEFORE: : : : : : : : : : No. 1707 C.D. 2007 Submitted: February 8, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: March 26, 2008 Paul Linton (Claimant) petitions for review of an adjudication of the Workers Compensation Appeal Board (Board) suspending Claimant s benefits. The Board affirmed the suspension by the Workers Compensation Judge (WCJ) for the reason that Claimant refused without cause to submit to an expert interview with a vocational representative after being ordered to do so. In addition, the Board held that Amcast Industrial Corporation s (Employer) overpayment of disability benefits during the period of Claimant s suspension would be credited against future compensation payable to Claimant. For the reasons that follow, we will affirm the Board s adjudication. The complex procedural background to this case is as follows. Claimant was employed by Employer in its utility department when, on April 27, 1998, he injured his left shoulder when he tripped and fell at work. Pursuant to a stipulation establishing the work injury as a left shoulder strain, Claimant began receiving temporary total disability benefits. On March 15, 2001, Claimant was interviewed by a vocational expert. Based on the interview, Employer filed a petition to modify compensation benefits as of August 8, 2001, alleging that work was generally available to Claimant. On January 30, 2003, Employer s modification petition was denied. On May 21, 2004, Claimant was examined by a physician at Employer s request. On August 18, 2004, Employer requested that Claimant attend a second vocational expert interview; however, Claimant refused. As a result, on August 30, 2004, Employer filed a petition for an expert interview pursuant to Section 314 of the Pennsylvania Workers Compensation Act (Act).1 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §651, which provides, in pertinent part, as follows: (a) At any time after an injury the employe, if so requested by his employer, must submit himself at some reasonable time and place for a physical examination or expert interview by an appropriate health care provider or other expert, who shall be selected and paid for by the employer. If the employe shall refuse upon the request of the employer, to submit to the examination or expert interview by the health care provider or other expert selected by the employer, a workers compensation judge assigned by the department may, upon petition of the employer, order the employe to submit to such examination or expert interview at a time and place set by the workers compensation judge and by the health care provider or other expert selected and paid for by the employer or by a health care provider or other expert designated by the workers compensation judge and paid for by the employer ¦.The refusal or neglect, without reasonable cause or excuse, of the employe to submit to such examination or expert interview ordered by the workers compensation judge, either before or after an agreement or award, shall deprive him of the right to compensation, under this article, during the continuance of such refusal or neglect, and the period of such (Footnote continued on the next page . . .) 2 On November 30, 2004, WCJ Brian Puhala granted Employer s petition and ordered Claimant to submit to a vocational expert interview at a time and place to be scheduled by the parties. Claimant appealed to the Board and requested a supersedeas of the WCJ s order. On December 9, 2004, Employer scheduled the vocational expert interview, and Claimant refused to attend. In response, Employer filed a suspension petition. On January 4, 2005, the Board granted Claimant s request for a supersedeas pending oral argument, at which the continuation of the supersedeas would be reconsidered. Following oral argument, the Board revoked the supersedeas on February 14, 2005. On March 22, 2005, WCJ Puhala dismissed Employer s suspension petition as moot for the stated reason that the Board had granted a temporary supersedeas to Claimant, even though that supersedeas had been revoked when WCJ Puhala made his decision. On March 21, 2005, Employer filed a second suspension petition, requesting that Claimant s benefits be suspended as of the date the Board revoked the supersedeas, i.e., February 14, 2005. On August 16, 2005, WCJ Puhala denied Employer s second suspension petition for the stated reason that Employer had not scheduled a vocational interview after the supersedeas was vacated on February 14, 2005. On August 29, 2005, the Board affirmed WCJ Puhala s November 30, 2004, decision that ordered Claimant to attend a vocational expert interview. (continued . . .) neglect or refusal shall be deducted from the period during which compensation would otherwise be payable. 77 P.S. §651(a). 3 Claimant appealed the Board s decision to this Court on September 19, 2005, but he did not request a supersedeas from either the Board or from this Court. On January 17, 2006, Employer again attempted to schedule a vocational expert interview. However, on January 20, 2006, Claimant s counsel sent a letter advising that: We are not prepared to submit to a second vocational interview by employer until the appellate courts have had their say on that issue. Therefore, your request for a vocational interview at this time is refused. Letter from Alan B. Ziegler to John Dieckman, dated January 20, 2006, marked as Employer s Exhibit No. 2 and Employer s Supersedeas Exhibit No. 1. As a result of Claimant s refusal, Employer filed a third suspension petition, which is the subject of the pending appeal. Claimant filed an answer to the suspension petition asserting that res judicata and collateral estoppel barred Employer s third suspension petition. On March 28, 2006, this Court affirmed the decision of the Board to order Claimant to attend a vocational expert interview in accordance with WCJ Puhala s November 30, 2004, decision.2 By letter dated April 19, 2006, Claimant agreed to attend a vocational expert interview when scheduled. Hearings on Employer s third suspension petition were held before WCJ Terry W. Knox. Employer argued that Claimant s benefits should be suspended as of January 20, 2006, the date he refused to attend the vocational expert interview. In 2 See Linton v. Workers Compensation Appeal Board (Amcast Industrial Corporation), 895 A.2d 677 (Pa. Cmwlth. 2006) (the WCJ did not abuse his discretion in granting the employer s petition for expert interview of the employee and ordering the employee to submit to a second vocational interview because multiple interviews by a vocational expert are permitted under the plain language of the Act). 4 opposition, Claimant argued that Employer s suspension petition was barred by res judicata or collateral estoppel because WCJ Puhala denied Employer s two previous suspension petitions. On June 9, 2006, WCJ Knox issued a decision suspending benefits. The WCJ found that Claimant had managed to avoid a vocational expert interview for almost two years and without any justification after the Board s revocation of the supersedeas on February 14, 2005. WCJ Knox held that Claimant s benefits must be suspended from January 20, 2006, and continuing until Claimant attended the vocational expert interview. WCJ Knox also found that Claimant had been unjustly enriched by his willful violation of WCJ Puhala s November 30, 2004, order and, therefore, Employer was entitled to recoupment of past overpayment in the form of a credit against Claimant s future benefits. Finally, WCJ Knox concluded that Employer s contest was reasonable and denied Claimant s request for unreasonable contest attorneys fees. Claimant appealed to the Board, and it affirmed. Claimant now petitions for review.3 Claimant raises four issues for this Court s review.4 First, Claimant argues that Employer s third suspension petition was barred by the doctrine of res 3 This Court s review of an order of the Board is limited to determining whether the necessary findings of fact were supported by substantial evidence, constitutional rights were violated, or errors of law were committed. Borough of Heidelberg v. Workers Compensation Appeal Board (Selva), 894 A.2d 861, 863 n.3 (Pa. Cmwlth. 2006). 4 Claimant raises a litany of issues, many of which are simply restatements or recharacterization of previously raised issues. Claimant s statement of questions involved spans over four pages, which is in violation of the appellate rules. See PA. R.A.P. 2116 ( The statement of the questions involved ¦ should not ordinarily exceed 15 lines, must never exceed one page, and must always be on a separate page, without any other matter appearing thereon. This rule is to be considered in the highest degree mandatory, admitting no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby ¦. ). However, in essence, Claimant raises only four issues for this Court s review. 5 judicata or collateral estoppel. Second, Claimant contends that the WCJ lacked subject matter jurisdiction over Employer s third suspension petition while Claimant s appeal of the petition for an expert interview was pending before this Court. Third, Claimant argues that the WCJ erred in concluding that Employer was entitled to a credit against future disability payments. Finally, Claimant asserts that the WCJ erred in failing to grant Claimant attorneys fees for an unreasonable contest. We consider, first, Claimant s argument that Employer s third suspension petition was barred by the doctrine of res judicata or collateral estoppel. Claimant contends that the issues and facts in all three suspension petitions are identical. Because Employer failed to meet its burden in the first and second suspension petitions, it is now precluded from relitigating the same issues in its third suspension petition. We begin with a review of the principles of res judicata, which bar the relitigation of claims and issues that have previously been decided. Temple University v. Workers Compensation Appeal Board (Parson and Supersedeas Fund), 753 A.2d 289, 291 (Pa. Cmwlth. 2000). The term res judicata encompasses two related, but distinct, principles: technical res judicata, which is sometimes called claim preclusion; and collateral estoppel which is sometimes called issue preclusion. Id. Res judicata or claim preclusion, prevents a future suit between the same parties on the same cause of action after final judgment is entered on the merits of the action. PMA Insurance Group v. Workmen s Compensation Appeal Board (Kelley), 665 A.2d 538, 541 (Pa. Cmwlth. 1995). It applies not only to matters that were actually litigated but also to those matters that should have been litigated in the prior 6 proceeding. Grube v. Workmen s Compensation Appeal Board (Consolidated Specialties), 667 A.2d 1224, 1227 (Pa. Cmwlth. 1995). For res judicata to apply, four conditions must exist: the identity in things sued upon or for; identity of the cause of action; identity of persons and parties to the action; and identity of the quality or capacity of the parties suing or being sued. Temple, 753 A.2d at 291. Collateral estoppel, also known as issue preclusion, prevents relitigation of an issue of law or fact between the same parties upon a different claim or demand. Fiore v. Department of Environmental Resources, 508 A.2d 371, 374 (Pa. Cmwlth. 1986). Four conditions must be met before collateral estoppel will bar relitigation of an issue of law or fact: the legal or factual issues must be the same; they must have been actually litigated; they must be essential to the judgment; and they must be material to the adjudication. PMA Insurance, 665 A.2d at 541. As this Court has explained, it is often difficult to distinguish between res judicata and collateral estoppel in a given case. Fiore, 508 A.2d at 375. However, the important thing for the court to consider is whether the ultimate and controlling issues have been decided in a prior proceeding in which the parties actually had an opportunity to appear and assert their rights. Id. (emphasis added). In this case, Employer sought a suspension of benefits pursuant to Section 314 of the Act, 77 P.S. §651, which permits an employer to petition the WCJ to order a claimant to submit to an expert interview. If the claimant refuses to attend the interview without reasonable cause or excuse after the WCJ grants the petition, the WCJ is mandated to forfeit the claimant s benefits during the period of refusal. Bradley v. Workers Compensation Appeal Board (County of Delaware), 919 A.2d 293, 295 (Pa. Cmwlth. 2006). 7 Here, Employer requested Claimant to submit to a vocational expert interview on August 18, 2004, and Claimant refused. On November 30, 2004, WCJ Puhala ordered Claimant to submit to this vocational expert interview. Employer rescheduled a second vocational expert interview on December 9, 2004, and again Claimant refused to attend. As a result, Employer filed its first suspension petition on December 20, 2004, which was denied by WCJ Puhala without a hearing on the merits.5 Thus, there was no decision on whether Claimant s refusal to attend the December 9, 2004, interview was for good cause. On March 21, 2005, Employer filed a second suspension petition after the Board revoked its temporary supersedeas. WCJ Puhala denied Employer s second suspension petition for the stated reason that Employer failed to reschedule a second vocational expert interview after the temporary supersedeas was revoked.6 Thus, the ultimate and controlling issue decided in the second suspension petition was whether Employer had, in fact, rescheduled the vocational expert interview. Employer then attempted to reschedule the vocational expert interview; however, Claimant, on January 20, 2006, refused to attend, asserting that he did not 5 WCJ Puhala concluded that the temporary supersedeas somehow rendered Claimant s previous refusal to comply with the November 30, 2004, order as moot and, thus, it was as if the refusal had never occurred. We disagree. The supersedeas was temporarily granted by the Board after Employer filed the suspension petition and was revoked prior to the WCJ s order denying Employer s suspension petition. The temporary supersedeas did not somehow erase Claimant s refusal to comply with the WCJ s order and, instead, merely maintained the status quo pending the Board s resolution of the matter. However, Employer did not appeal the WCJ s denial of its first suspension petition and, accordingly, this issue is not presently before this Court. 6 Apparently, WCJ Puhala s conclusion was premised on his previous decision in which he found that the supersedeas somehow rendered the previous request and refusal of a vocational expert interview as meaningless. Although we do not necessarily agree with the WCJ s conclusion, we will not address this issue as Employer did not appeal from WCJ Puhala s denial of its second suspension petition. 8 have to attend a vocational interview until the appellate courts decided his appeal. Employer then filed a third suspension petition on February 6, 2006, asserting that Claimant refused to attend the vocational expert interview on January 20, 2006. Employer s request for an interview and Claimant s refusal, which were at issue in the third suspension petition, were separate and distinct from the requests and refusals at issue in Employer s first and second suspension petitions. Therefore, the ultimate controlling issue of whether Claimant refused to attend a vocational expert interview on January 20, 2006, had not been decided in either of the prior suspension petitions. Indeed, this issue was not ripe at the time Employer filed its first and second suspension petitions. Accordingly, Employer s third suspension petition is not barred by the doctrine of collateral estoppel or res judicata. Claimant next argues that the WCJ lacked subject matter jurisdiction over Employer s third suspension petition. Claimant contends that WCJ Puhala s November 30, 2004, decision ordering Claimant to attend a vocational expert interview was pending on appeal before this Court when Employer filed its third suspension petition. Claimant therefore argues that WCJ Knox lacked jurisdiction. In essence, Claimant argues that his appeal of the WCJ s November 30, 2004, order effectively stayed the WCJ s order. We disagree. An appeal does not automatically function as a supersedeas or stay. McCormick v. Workers Compensation Appeal Board (City of Philadelphia), 734 A.2d 473, 477 (Pa. Cmwlth. 1999). There is no provision in the Act or the applicable regulations that provides that an appeal by a workers compensation claimant operates as an automatic stay or supersedeas of a WCJ s order. Id. Indeed, this Court has specifically held that an appeal from an order directing a claimant to attend a 9 vocational expert interview does not act as an automatic supersedeas. Bradley, 919 A.2d at 293. Here, Claimant appealed the Board s order affirming WCJ Puhala s November 30, 2004, order that Claimant must submit to a vocational expert interview, but Claimant did not ask either the Board or this Court for a supersedeas. Accordingly, Claimant was required to comply with the order. When he did not comply, Employer s remedy was to file a third suspension petition. In no way did Claimant s appeal bar the filing of this suspension petition or its being decided in accordance with the Act. We reject Claimant s subject matter jurisdiction claim. Claimant next argues that the WCJ erred in concluding that Employer was entitled to a credit against Claimant s future compensation. In support, Claimant argues that he did not willfully violate the WCJ s order directing him to attend a second vocational expert interview. Claimant also argues that he had reasonable excuses for his refusal to submit to the second vocational expert interview, including res judicata and lack of subject matter jurisdiction over Employer s third suspension petition. Finally, Claimant contends that he, in fact, attended a vocational expert interview on May 11, 2006, and, therefore, Employer s suspension petition is moot. Claimant s arguments lack merit. Under Section 314 of the Act, a claimant must attend the vocational expert interview if ordered by the WCJ. If he does not, the WCJ must forfeit the claimant s benefits during the period of refusal. Bradley, 919 A.2d at 295. However, an employer is not entitled to reimbursement of payments made during the timeframe that the employee failed to submit to the interview. Bureau of Workers Compensation v. Workmen s Compensation Appeal Board (Lukens Steel Company), 10 524 A.2d 1041, 1043 (Pa. Cmwlth. 1987). Instead, the employer s exclusive remedy is to charge the payments made during the refusal period against future payments. Id. Claimant s proffered reasons for not attending the vocational interview were legal in nature and, as found above, lack merit. Because Claimant failed to offer a reasonable cause or excuse for his January 20, 2006, refusal to attend the vocational expert interview, he was not entitled to continue to receive benefits after that date. The WCJ concluded as follows: Claimant was unjustly enriched by receiving benefits after January 20, 2006, so that [Employer] is entitled to recoupment of overpayments from Claimant and shall receive a dollar-fordollar credit against future compensation payable for payments of compensation by which Claimant was unjustly enriched, from January 20, 2006, to the date when benefits would otherwise be reinstated upon [Claimant s] attendance at an expert interview. WCJ Knox decision, dated June 9, 2006, at 7; Conclusion of Law No. 3. We agree and uphold the WCJ s conclusion. Finally, Claimant contends that the WCJ erred by failing to grant Claimant attorneys fees for an unreasonable contest. In support, Claimant again argues that Employer s third suspension petition was barred by the doctrines of res judicata and collateral estoppel. Claimant also argues that the third suspension petition was unreasonable because the issue of whether an employer is entitled to more than one vocational expert interview was on appeal at the time the petition was filed. Under the Act, a claimant who prevails in whole or in part is entitled to recover reasonable attorneys fees from the employer unless the employer has a 11 reasonable basis for contesting liability.7 Bates v. Workers Compensation Appeal Board (Titan Construction Staffing, LLC), 878 A.2d 160, 163 (Pa. Cmwlth. 2005) (citation omitted). Because Claimant did not prevail in whole or in part, he has no basis for seeking attorneys fees. For all the above-stated reasons, we affirm the Board s adjudication. ______________________________ MARY HANNAH LEAVITT, Judge 7 Section 440(a) of the Act, added by the Act of February 8, 1972, P.L. 25, provides, in relevant part: In any contested case where the insurer has contested liability in whole or in part ¦ the employe ¦ in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney s fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings: Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer. 77 P.S. §996(a). 12 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Paul Linton, Petitioner v. Workers Compensation Appeal Board (Amcast Industrial Corporation), Respondent : : : : : : : : : No. 1707 C.D. 2007 ORDER AND NOW, this 26th day of March, 2008, the order of the Workers Compensation Appeal Board, dated August 27, 2007, in the above-captioned matter, is hereby AFFIRMED in accordance with this opinion. ______________________________ MARY HANNAH LEAVITT, Judge

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