V. R. Martinez v. WCAB (Farmer's Pride, Inc.) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Vicente Rosario Martinez, Petitioner v. Workers' Compensation Appeal Board (Farmer s Pride, Inc.), Respondent BEFORE: : : : : : : : : No. 2215 C.D. 2007 Submitted: April 4, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: June 5, 2008 In this workers compensation appeal, Vicente Rosario Martinez (Claimant) petitions for review of an order of the Workers Compensation Appeal Board (Board) affirming the dismissal of his reinstatement and review petitions. On appeal, Claimant argues a Workers Compensation Judge (WCJ) denied him an opportunity to present medical evidence in support of his petitions; the record does not support the WCJ s finding that his testimony was contrary to a stipulation of facts and a prior WCJ order; and, the record does not support the WCJ s conclusion relating to his discharge from employment. Discerning no merit in these assertions, we affirm. In May 2006, Claimant filed a claim petition against Farmer s Pride, Inc. (Employer) asserting a May 3, 2006 work injury to his left hand and left thumb. Claimant also filed a penalty petition alleging Employer fired him instead of recognizing the work injury. The matter proceeded to a WCJ (first WCJ). Prior to September 11, 2006, the parties entered into a stipulation wherein Employer recognized Claimant s work injury as a left finger (thumb) laceration and left thumb cellulitis. Supplemental Reproduced Record (S.R.R.) at 6. The stipulation also set forth Claimant s compensation rate; his return to light duty work at no loss of wages; the subsequent suspension of benefits based on Claimant s return to work; and Claimant s entitlement to medical expenses and counsel fees. Id. at 7. On September 11, 2006, the first WCJ adopted the parties stipulation. Accordingly, the first WCJ granted Claimant s claim petition and directed Employer to make payment pursuant to the stipulation; the first WCJ dismissed the penalty petition as moot. Neither party appealed. Contemporaneously, Employer filed a termination petition asserting Claimant fully recovered from the work injury. Claimant timely denied Employer s allegations and, in response, filed a petition to reinstate benefits alleging a worsening of his condition. Claimant s reinstatement petition and Employer s termination petition were assigned to a second WCJ. At hearing, Claimant briefly described the mechanics of his work injury. Claimant also testified he sustained additional injuries as a result of the work accident. In particular, Claimant noted he underwent left wrist surgery on September 7, 2006. Claimant also stated he informed his physician of left elbow pain two days after the work injury. Importantly, these events occurred prior to the 2 first WCJ s order adopting the parties stipulation. Claimant further stated that he used only his right hand when he returned to light duty work. Of further note, Claimant testified regarding his discharge from employment. Claimant stated that on August 29, 2006, he reported to Employer s infirmary to discuss his injury. When leaving the infirmary, Claimant encountered a large group of workers who gathered to discuss with Employer concerns raised by a coworker s death. Employer s representative instructed the workers to return to their duties and, when that did not occur, she discharged employees at random. Employer s representative fired 11 individuals, including Claimant, based on rumors that some employees were going to damage automobiles if other employees did not stand up to Employer. Claimant testified he would have continued the light duty work absent his discharge. These events also occurred prior to the first WCJ s decision. Subsequent to the hearing but before the second WCJ s decision, Claimant filed a February 2007 petition to review compensation benefits. Claimant sought to include in the description of the work injury a figular cartilage tear of the left wrist, and left ulnar neuropathy of the guyons canal of the left elbow. Employer filed an answer to the review petition raising the defenses of res judicata and collateral estoppel. The second WCJ bifurcated the matter. He reviewed briefs on the issues of preclusion and whether Claimant was terminated for violation of company policy and insubordination. In a March 2007 decision, the second WCJ 3 concluded Claimant s loss of earnings was not the result of his work injury but rather his voluntary refusal to return to work. Disposing of Claimant s petitions, the second WCJ made the following pertinent findings of fact: 3. [Claimant] testified that on August 29, 2006, he, along with a number of other employees (he stated there were 120 employees) conducted what this [WCJ] terms a job action or work stoppage. This incident had nothing to do with [Claimant s] work related injury, but rather it concerned the death of a co-worker ¦. He along with other workers refused to return to work and [Claimant] testified that yes, he was refusing to work until [Employer] explained the situation to the gathered employees, (Hearing transcript of November 20, 2006 page 15, lines 1-2)[.] He also testified they re treating us like we re not humans and I feel that s bad on their part (Hearing transcript, page 20, lines 8-14). [Claimant] and ten other workers were terminated from their employment for their refusal to return to work. He stated that none of the 120 people went back to work and of those 120, eleven were fired (Hearing transcript, page 16, line[s] 7-24). 4. [Claimant] testified that he applied for, but was denied Unemployment Compensation Benefits. [Employer] contested his claim for benefits. [Claimant] further testified that if his employment were not terminated, he would have been able to continue working at the light duty position (Hearing transcript, page 18, line[s] 20-25). 5. This [WCJ] finds [Claimant s] testimony with regard to his involvement with the job action or work stoppage, to be unworthy of belief. In addition to his testimony set forth in Finding of Fact #3, his responses to questions were evasive (Hearing transcript page 14, line[s] 20-25 and page 22, line[s] 1-7). 6. [Claimant] testified that his elbow started to hurt him two days after the May 3, 2006 work injury and about that time, he told the nurse in the infirmary that his hand 4 hurt. This testimony is inconsistent with the Stipulation of Facts that he signed. [Claimant] did not appeal [first WCJ s] Decision incorporating the Stipulation of Facts. [Claimant s] Petition to Reinstate Benefits was filed nine days after his employment was terminated; [Claimant] confirmed that but for the termination, he would still be able to perform the light duty job. [Claimant s] testimony with regard to an increase in his symptoms and conditions is unworthy of belief and the terms and provisions of the Stipulation of Facts contradict his allegations. WCJ Op., 3/20/07, at 1-2 (emphasis added). Accordingly, the WCJ dismissed Claimant s reinstatement and review petitions.1 The Board affirmed. Claimant raises three issues on review: the second WCJ denied Claimant an opportunity to present medical evidence in support of his reinstatement and review petitions; the record does not support the second WCJ s finding that Claimant s testimony was contrary to a stipulation of facts and the first WCJ s order; and the record does not support the second WCJ s conclusion relating to Claimant s discharge from employment. On review, we are limited to determining whether the record supports the necessary findings of fact, whether errors of law were committed, or whether constitutional rights were violated. Selkow v. Workmen s Comp. Appeal Bd. (Anchor Davis-Jay Box Co.), 662 A.2d 31 (Pa. Cmwlth. 1995). 1 The parties agreed to hold Employer s termination petition in abeyance until resolution of Claimant s appeal to the Board. 5 A. Claimant initially assigns error in the denial of an opportunity to present medical evidence in support of his reinstatement and review petitions. We reject this argument. 1. Claimant asserts the second WCJ erred by failing to provide an opportunity to present medical evidence in support of his reinstatement petition. He contends the WCJ entered a decision on an incomplete record that by its very nature could not yield competent evidence. He argues that the interests of justice and fair resolution of claims preclude a premature closing of the record, and he asks for a remand so that medical evidence may be produced and evaluated. A claimant seeking reinstatement following a suspension of benefits must prove that through no fault of his own, the claimant s disability is again adversely affected by the work injury and the disability that gave rise to the original claim continues. Pieper v. Ametek-Thermox Instruments Div., 526 Pa. 25, 584 A.2d 301 (1990). In such cases, the causal connection between the original work injury and the disability that gave rise to compensation is presumed, and a claimant is not required to produce unequivocal medical evidence to establish the continuing disability. Latta v. Workmen s Comp. Appeal Bd. (Latrobe Die Casting Co.), 537 Pa. 223, 642 A.2d 1083 (1994); Pieper. Testimony of the claimant alone can satisfy the burden that the disability continues. Latta. 6 Here, Claimant failed to meet the above burden. As more fully explained below, the second WCJ concluded Claimant s discharge from work resulted in his wage loss. Medical evidence would not affect this determination; it was therefore unnecessary for Claimant to present medical evidence establishing a worsening of the recognized work injury. Nevertheless, Claimant maintains the second WCJ erred in determining Claimant could continue his light duty work absent his discharge. Medical evidence, Claimant asserts, would have demonstrated a worsening of his condition leading to left wrist surgery and an inability to perform the light duty job. As previously noted, however, Claimant stipulated to an injury in the nature of a left finger (thumb) laceration and left thumb cellulitis. S.R.R. at 6; Notes of Testimony (N.T.), 11/20/06, at 27. Claimant s testimony regarding wrist and elbow injuries is therefore irrelevant to a reinstatement of benefits based on an alleged worsening of the accepted thumb injury. See Se. Pa. Transp. Auth. (SEPTA) v. Workmen s Comp. Appeal Bd. (Pointer), 604 A.2d 315 (Pa. Cmwlth. 1992) (a claimant discharged for wrongful conduct is not eternally precluded from workers compensation benefits where he suffers a worsening of the medical condition that is directly related to his work injury). Similarly, other medical evidence about wrist and elbow conditions that might be offered on remand would be irrelevant to reinstatement of benefits for the thumb injury. We thoroughly reviewed Claimant s testimony and find no reference to a worsening of the left thumb. Because medical evidence relating to injuries not 7 recognized in the stipulation would not advance his reinstatement petition, no error is apparent. 2. In a similar argument, Claimant contends the second WCJ failed to afford an opportunity to present medical evidence in support of his review petition. The second WCJ determined Claimant s attempts to expand the acknowledged injury to include wrist and elbow conditions was inconsistent with the unappealed order of the first WCJ; however, Claimant argues this determination is not supported by substantial evidence. A review petition is appropriate where a claimant seeks to amend an NCP to reflect further injuries sustained as a result of the work incident. Section 413(a) of the Workers Compensation Act (Act);2 Westinghouse Elect. Corp./CBS v. Workers Comp. Appeal Bd. (Korach), 584 Pa. 411, 883 A.2d 579 (2005); Jeanes Hosp. v. Workers Comp. Appeal Bd. (Hass), 582 Pa. 405, 872 A.2d 159 2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772. Section 413(a) provides in relevant part: A [WCJ] designated by the department may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an original or supplemental agreement or an award of the department or its [WCJ], upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased, or that the status of any dependent has changed. Such modification, reinstatement, suspension, or termination shall be made as of the date upon which it is shown that the disability of the injured employe has increased, decreased, recurred, or has temporarily or finally ceased ¦. 8 (2005). A review petition functions as a claim petition and, as such, Claimant bore the burden of showing a material mistake as to the description of the work injury. Jeanes Hosp. In the review petition, Claimant alleged additional work injuries in the nature of figular cartilage tear of the left wrist which required surgery on September 7, 2006 and [l]eft ulna[r] neuropathy of guyons canal of the left elbow. Certified Record (C.R.) Pet. to Review Comp. Before the second WCJ, Claimant testified he underwent left wrist surgery on September 7, 2006. N.T. at 14. In addition, he informed his physician of left elbow pain two days after the accident. Id. at 18. Both events occurred prior to the first WCJ s order recognizing the work injury as a left thumb laceration and left thumb cellulitis. Because Claimant knew of these injuries before the first WCJ s order adopting the parties stipulation, the second WCJ properly concluded Claimant is bound by the stipulation and the first WCJ s unappealed order. See Klingler v. Workmen s Comp. Appeal Bd. (Wm. Rupert & Security Ins. Group), 413 A.2d 432 (Pa. Cmwlth. 1980) (stipulated facts can support a WCJ s conclusions). Concessions made in stipulations become the law of the case, and the parties who make them may not later contradict their previous admissions. Commonwealth v. Rodebaugh, 519 A.2d 555 (Pa. Cmwlth. 1986). Notably, Claimant does not seek to set aside the stipulation or allege it was obtained fraudulently or illegally. Cf. Spears v. Workmen s Comp. Appeal Bd. (Newman & Co., Inc.), 481 A.2d 1244 9 (Pa. Cmwlth. 1984) (where WCJ decision is based on patently false stipulation, WCJ s decision is not considered res judicata in subsequent proceedings).3 In view of Claimant s knowledge of additional work injuries at the time of the first WCJ s order adopting the parties stipulation, he cannot prove a material mistake of fact existed at the time of entry. Medical evidence cannot contradict Claimant s testimony that these injuries were known prior to the first WCJ s order. Accordingly, we discern no error in the second WCJ s dismissal of Claimant s review petition.4 3 Claimant s review petition is also barred by res judicata/collateral estoppel. Technical res judicata precludes a future action between the same parties on the same cause of action when a final judgment on the merits already exists. Huynh v. Workers Comp. Appeal Bd. (Hatfield Quality Meats), 924 A.2d 717 (Pa. Cmwlth.), appeal denied, __ Pa. __, 934 A.2d 1279 (2007). Collateral estoppel, on the other hand, forecloses litigation in a later action of issues that were actually litigated and necessary to the previous final judgment. Id. Technical res judicata applies to claims that were actually litigated as well as to those that should have been litigated. Id. As explained above, Claimant here knew of the additional injuries at the time he executed the stipulation. These claims should have been litigated at the same time and are now precluded. Huynh. 4 In his statement of issues, Claimant further asserts the second WCJ failed to issue a reasoned decision. Claimant failed to develop this argument in his brief; issues not appropriately set forth in the appellate brief pursuant to Pa. R.A.P. 2116 are waived. AT&T v. Workers Comp. Appeal Bd. (DiNapoli), 816 A.2d 355 (Pa. Cmwlth. 2003). In any event, the second WCJ s order clearly identifies the rationale for denying Claimant s petitions. Thus, it provides the basis for adequate appellate review. See Daniels v. Workers Comp. Appeal Bd. (Tristate Transp.), 574 Pa. 61, 828 A.2d 1043 (2003). Claimant also argues the second WCJ s dismissal of his petitions without an opportunity to present medical evidence denied his right to due process. As our discussion above illustrates, no due process violation is apparent. 10 B. Claimant also maintains the record does not support the second WCJ s finding that Claimant s testimony is contrary to the parties stipulation of facts and the first WCJ s order. He contends neither the stipulation nor the first WCJ s order is part of the certified record. As such, they cannot provide the basis for the second WCJ s rejection of Claimant s testimony regarding the nature and extent of his work injuries. Claimant s argument fails for two reasons. First, Claimant did not raise this issue in his appeal to the Board and in the current petition for review. See C.R. at 19-20; Pet. for Review. An issue is waived unless it is preserved at every stage of the proceedings. Pa. R.A.P. 1551; Allied Prods. & Servs. v. Workers Comp. Appeal Bd. (Click), 823 A.2d 284 (Pa. Cmwlth. 2003). In addition, the second WCJ specifically requested the parties submit a copy of the stipulation and the first WCJ s order. N.T. at 3, 28. Employer s counsel timely complied with the request, as evidenced by the Department of Labor and Industry s acknowledgment of receipt. See S.R.R. at 1-8 (time-stamped cover letter with enclosures including first WCJ s September 11, 2006 order and parties stipulation of facts). Claimant raised no objection to this procedure. N.T. 11/20/06. Thus, while we do not condone the exclusion of the stipulation and first WCJ s order from the certified record, it is disingenuous of Claimant to contend they are not part of the record on appeal. 11 C. In his final argument, Claimant assigns error in the second WCJ s determination that Claimant s discharge from work caused his current wage loss. According to Claimant, Employer failed to prove it discharged him for good cause. Section 413(a) of the Act, 77 P.S. §772, provides in relevant part: [W]here compensation has been suspended because the employe s earnings are equal to or in excess of his wages prior to the injury ¦ payments under the agreement or award may be resumed at any time during the period for which compensation for partial disability is payable, unless it be shown that the loss in earnings does not result from the disability due to the injury. (Emphasis added.) Section 413(a) has been interpreted to mean that where the WCJ finds a claimant working under a suspension of benefits has been terminated for willful misconduct, workers compensation benefits are not properly reinstated because the claimant s loss of earnings is not due to his work injury, but rather his own willful misconduct. Pointer. Because Claimant s disability is presumed to continue, Employer had the burden to establish either work was available within Claimant s restrictions or something other than the work injury caused Claimant s wage loss. Virgo v. Workers Comp. Appeal Bd. (County of Lehigh-Cedarbrook), 890 A.2d 13 (Pa. Cmwlth. 2005). Although Employer offered no evidence on this issue, a party may be relieved of its evidentiary burden if the necessary proof is introduced by his adversary. SKF USA, Inc. v. Workers Comp. Appeal Bd. (Smalls), 728 A.2d 385 12 (Pa. Cmwlth. 1999); Devlin v. Unemployment Comp. Bd. of Review, 454 A.2d 1189 (Pa. Cmwlth. 1983). Here, the second WCJ made the critical findings necessary to conclude Claimant s wage loss resulted from his admitted refusal to return to work when instructed. WCJ Op., 3/20/07, at 2. When asked whether he refused to work, Claimant answered: Yes. We were waiting to explain the situation [regarding the deceased employee] to [Employer]. N.T. at 15.5 The second WCJ relied on this portion of Claimant s testimony to conclude his refusal to return to work led to his discharge. WCJ Op., 3/20/07, at 1-2. Further, Claimant admitted he would have continued to work absent his discharge. N.T. at 18. 5 In particular, the following exchange took place on cross-examination: [Employer s counsel:] [W]ere you also refusing to work? [Claimant:] I was in the group. [Q:] So you were also refusing to work? [A:] Yes. We were waiting to explain the situation to the owner. ¦ [Q:] So 120 people were refusing to work initially? [A:] Yes. ¦ [Q:] So none of the 120 people that had the meeting went back to work? [A:] Nobody went back to work. [Q:] And you re saying that [employer s human resources manager] just picked 11 people at random? ¦ [A:] Yes. I was one of the 11. N.T. at 14-16 (emphasis added). 13 The record sufficiently supports the second WCJ s conclusion Employer discharged Claimant for cause. It is irrelevant whether the record contains evidence to support other findings than those made by the WCJ; the critical inquiry is whether there is evidence to support the findings actually made. Minicozzi v. Workers Comp. Appeal Bd. (Indus. Metal Plating, Inc.), 873 A.2d 25 (Pa. Cmwlth. 2005). Moreover, the WCJ s authority over questions of credibility and evidentiary weight is unquestioned. As fact-finder, the WCJ may reject the testimony of any witness in whole or in part. Id. Here, the second WCJ rejected those portions of Claimant s testimony purporting to establish his innocence in relation to the work incident. However, the second WCJ accepted Claimant s admission that he refused an order to return to work. The second WCJ also accepted Claimant s admission that he would have continued to work light duty in the absence of his discharge. Based on the accepted portions of Claimant s testimony, the record supports the determination that Claimant s wage loss was attributable to misconduct at work and not the accepted work injury. We cannot disturb it. Based on the foregoing, we affirm. ROBERT SIMPSON, Judge 14 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Vicente Rosario Martinez, Petitioner v. Workers' Compensation Appeal Board (Farmer s Pride, Inc.), Respondent : : : : : : : : No. 2215 C.D. 2007 ORDER AND NOW, this 5th day of June, 2008, the order of the Workers Compensation Appeal Board is AFFIRMED. ROBERT SIMPSON, Judge

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