IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Beaver Valley Slag, Inc., :
Petitioner :
:
v. :
:
Jason Marchionda (Workers’ :
Compensation Appeal Board), : No. 867 C.D. 2020
Respondent :
:
Jamie Young, Guardian of the :
Estate of Jason Marchionda, an :
Incapacitated Person, :
Petitioner :
:
v. :
:
Beaver Valley Slag, Inc. (Workers’ :
Compensation Appeal Board), : No. 901 C.D. 2020
Respondent : Submitted: January 15, 2021
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE COVEY FILED: March 10, 2021
Beaver Valley Slag, Inc. (Employer) and Jamie Young (Guardian),
Guardian of the Estate of Jason Marchionda (Claimant), an Incapacitated Person,
cross-petition this Court for review of the Workers’ Compensation (WC) Appeal
Board’s (Board) August 13, 2020 order. Therein, the Board affirmed the Workers’
Compensation Judge’s (WCJ) decision granting Claimant’s Petition to Review
Compensation Benefit Offset (Petition).
Employer presents five issues for this Court’s review: (1) whether
Whitmoyer v. Workers’ Compensation Appeal Board (Mountain Country Meats),
186 A.3d 947 (Pa. 2018), is applicable to the instant matter; (2) whether Employer
is required to reimburse medical payments made after the date Whitmoyer was
decided or the date of the Third-Party Settlement Agreement (TPSA); (3) whether
Claimant waived his right to raise the issue of reduced reimbursement, pursuant to
the TPSA, by failing to dispute Employer’s right to reduced reimbursement on all
future medical payments at the time the TPSA was executed; (4) whether Claimant
is barred by the doctrines of collateral estoppel and/or res judicata upon execution
of the TPSA and subsequent approval of the TPSA in the Beaver County Common
Pleas Court (trial court); and (5) whether the WCJ’s decision is well reasoned
because it failed to adequately address all exhibits, and Claimant’s and Employer’s
exhibits demonstrate that Claimant voluntarily agreed to a reduced reimbursement
rate on future medical benefits.1
Guardian presents one issue for this Court’s review: whether the WCJ
erred by making the modification retroactive to the date Whitmoyer was decided,
rather than to the date the TPSA was executed.2
Claimant worked for Employer when he sustained a severe injury while
using a stone crusher machine that malfunctioned. Employer accepted the work
injury through a notice of compensation payable (NCP), which described Claimant’s
injury as a concussion, skull fracture and brain injury. As a result of those injuries,
the trial court adjudicated Claimant an incapacitated person and appointed Guardian.
In 2014, Guardian filed a products liability lawsuit in the trial court against the stone
crusher machine’s seller, RECO Equipment (RECO). RECO and Guardian
ultimately entered into a Petition for Approval and settled the lawsuit for
$10,450,000.00, and the trial court ordered the following distribution: $1,099,600.00
1
This Court has reordered Employer’s issues for ease of discussion.
2
Because Guardian’s sole issue is a restatement of Employer’s second issue, it will be
discussed therein.
2
to Employer to satisfy its net subrogation lien; $3,519,136.00 for costs and attorney’s
fees; and $5,831,264.00 to a Special Needs Trust (Trust) established for Claimant.
Pursuant to the trial court’s order, the parties signed the TPSA. The TPSA rendered
Employer responsible for 33.7% of Claimant’s future weekly WC benefits and
medical expenses in order to reimburse its pro rata share of Claimant’s fees and
expenses until exhaustion of a subrogation interest in the amount of $8,794,337.00.
Thereafter, Employer would be responsible for 100% of Claimant’s WC benefits.
On June 19, 2018, the Pennsylvania Supreme Court decided
Whitmoyer, wherein it ruled that Section 319 of the WC Act (Act),3 77 P.S. § 671,
precludes employers from subrogating future medical benefits after a third-party
settlement is executed.
On August 20, 2018, Guardian filed the Petition seeking review of
Employer’s subrogation credit of Claimant’s third-party recovery pursuant to
Whitmoyer. Specifically, Guardian sought to recover all of the medical benefits paid
from the Trust after the TPSA was executed and relief of the Trust’s obligation to
pay any future medical benefits.
On January 9, 2019, the WCJ granted the Petition, but concluded that
Whitmoyer was applicable to the subrogation of Claimant’s medical benefits as of
June 19, 2018, the date Whitmoyer was decided. Accordingly, the WCJ set aside the
TPSA to the extent that it requires the Trust to pay any portion of Claimant’s medical
bills after said date. Consequently, the WCJ ordered Employer to reimburse the
Trust for any medical expenses the Trust paid after June 19, 2018, and to pay 100%
of Claimant’s medical expenses going forward. Employer and Guardian appealed
to the Board. On August 13, 2020, the Board affirmed the WCJ’s decision.
3
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
3
Employer and Guardian appealed to this Court.4 By September 22, 2020 Order, this
Court consolidated the appeals.
Initially, Section 319 of the Act provides, in relevant part:
Where the compensable injury is caused in whole or in
part by the act or omission of a third party, the employer
shall be subrogated to the right of the employe, his
personal representative, his estate or his dependents,
against such third party to the extent of the compensation
payable under this article by the employer; reasonable
attorney’s fees and other proper disbursements incurred in
obtaining a recovery or in effecting a compromise
settlement shall be prorated between the employer and
employe, his personal representative, his estate or his
dependents. The employer shall pay that proportion of the
attorney’s fees and other proper disbursements that the
amount of compensation paid or payable at the time of
recovery or settlement bears to the total recovery or
settlement. Any recovery against such third person in
excess of the compensation theretofore paid by the
employer shall be paid forthwith to the employe, his
personal representative, his estate or his dependents, and
shall be treated as an advance payment by the
employer on account of any future instalments of
compensation.
77 P.S. § 671 (emphasis added).
In Whitmoyer, the Pennsylvania Supreme Court explained:
[A]fter satisfying the employer’s accrued subrogation lien,
which encompasses ‘compensation’ payments made by
the employer toward both disability benefits and medical
expenses prior to the third-party settlement, the General
Assembly intended the excess recovery to be paid to the
injured employee and to be treated as an advance payment
4
“On review[,] this Court must determine whether constitutional rights were violated,
errors of law were committed, or necessary findings of fact were supported by substantial
competent evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d
598, 601 n.6 (Pa. Cmwlth. 2014).
4
only on account of any future disability benefits. See 77
P.S. § 671.
Whitmoyer, 186 A.3d at 957.
Viewing ‘instalments of compensation’ in context, with
reference to surrounding language and the overall
statutory scheme, we conclude that the term is clear and
unambiguous. It does not refer to medical expenses.
Therefore, having satisfied its accrued subrogation lien at
the time of settlement, an employer is not permitted to
seek reimbursement for future medical expenses from
the employee’s balance of recovery.
Id. at 958 (emphasis added).
Employer argues that the WCJ erred by applying Whitmoyer to the
instant matter because Whitmoyer was before the Board at the time the TPSA was
executed. Specifically, Employer contends that since the TPSA was final (given that
no appeal was taken therefrom), and no litigation or appeals were pending at the time
Whitmoyer was decided, Guardian is not entitled to the benefit of the change in the
law. Guardian rejoins that Section 413(a) of the Act, 77 P.S. § 771, expressly
required the WCJ to review, modify and set aside the materially erroneous portion
of the TPSA.
Section 413(a) of the Act provides:
A [WCJ] may, at any time, review and modify or set
aside a[n] [NCP] and an original or supplemental
agreement or upon petition filed by either party with
the [D]epartment [of Labor & Industry], or in the course
of the proceedings under any petition pending before such
[WCJ], if it be proved that such [NCP] or agreement
was in any material respect incorrect.
77 P.S. § 771 (emphasis added). Here, because Claimant is still receiving disability
compensation, the TPSA was not a final resolution of the claim. Therefore, Section
413(a) of the Act permits a WCJ to review and modify or set aside the TPSA upon
petition filed by either party. See 77 P.S. § 771. Guardian filed the Petition seeking
5
the WCJ to review the portion of the TPSA declaring that Employer was responsible
for 33.7% of Claimant’s future weekly WC benefits and medical expenses in order
to reimburse its pro rata share of Claimant’s fees and expenses until the
$8,794,337.00 subrogation interest was exhausted. Because under Whitmoyer,
Employer is not permitted to seek reimbursement for future medical expenses from
the employee’s balance of recovery, the WCJ was permitted to set aside that portion
of the TPSA. Accordingly, the WCJ properly applied Whitmoyer to the instant
matter.
Employer next asserts that the WCJ erred by applying Whitmoyer
retroactively. To support its position, Employer cites cases referencing the
retroactivity of Protz v. Workers’ Compensation Appeal Board (Derry Area School
District), 161 A.3d 827 (Pa. 2017) (Protz II), wherein the claimants asserted the
unconstitutional nondelegability defense to the employers’ petitions for review of
impairment rating evaluations (IRE) that were pending when Protz II was decided.
See Dana Holding Corp. v. Workers’ Comp. Appeal Bd. (Smuck), 232 A.3d 629 (Pa.
2020) (Dana Holding II); White v. Workers’ Comp. Appeal Bd. (City of Phila.), 237
A.3d 1225 (Pa. Cmwlth. 2020).
Guardian retorts that it would be improper to rely upon the retroactivity
factors applicable in cases where the parties were actually litigating modifications
of material errors and had preserved the issue, at the time the issue was decided in
another case. Guardian maintains that granting a review petition under Section
413(a) of the Act requires that correction of the erroneous agreement be effective as
of the date of the error’s creation. Guardian further contends that, because the
Whitmoyer Court was interpreting a phrase in Section 319 of the Act for the first
time, and its holding was based upon the interpretation of a clear and unambiguous
statute, the Court’s initial interpretation did not announce a new rule of law; thus,
the modification and setting aside of the legally erroneous portion of the TPSA
6
should be retroactive to the date of the erroneous agreement’s creation. Claimant
cites Fiore v. White, 757 A.2d 842 (Pa. 2000), in support of its position.
The Fiore Court explained:
A case of first impression is one that presents an ‘entirely
novel question of law,’ which ‘cannot be governed by any
existing precedent.’ BLACK’S LAW DICTIONARY 635 (6th
ed. 1990). [The] resolution of the conflict presented in
[Commonwealth v. Scarpone, . . . 634 A.2d 1109 ([Pa.]
1993),] was governed by familiar rules of statutory
interpretation, grounded in existing case law.
Fiore, 757 A.2d at 848. Accordingly, the Fiore Court ruled that “Scarpone did not
announce a new rule of law. [The] ruling merely clarified the plain language of the
statute.” Id. at 848-49. Consequently, the Fiore Court held that because “[o]ur first
pronouncement on the substance of a statutory provision is purely a clarification of
an existing law[,]” Scarpone is retroactive to the effective date of the statute.
However, applying Fiore rotely is not consistent with the Pennsylvania
Supreme Court’s decision in Dana Holding II and this Court’s holding in Whitfield
v. Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC),
188 A.3d 599 (Pa. Cmwlth. 2018). This Court explained in Dana Holding Corp. v.
Workers’ Compensation Appeal Board (Smuck), 195 A.3d 635 (Pa. Cmwlth. 2018)
(Dana Holding I), aff’d, Dana Holding II:
There are four approaches in deciding what effect a
decision announcing a new rule of law should be given:
(1) purely prospective, meaning the new rule does not
even apply to the parties in the case in which it was
announced; (2) retroactive, but limited to the case where
the principle was announced; (3) retroactive to all cases
pending at the time it was announced; and (4) full
retroactive effect, which applies even to cases which are
otherwise final.
7
Dana Holding I, 195 A.3d at 641. “[W]hether a judicial decision should apply
retroactively is a matter of judicial discretion to be decided on a case-by-case basis.”
Id. (quoting Passarello v. Grumbine, 87 A.3d 285, 307 (Pa. 2014)).
The U[nited] S[tates] Supreme Court has viewed the
decision of whether to apply a new rule retroactively or
prospectively as a function of three considerations: (1) the
purpose to be served by the new rule, (2) the extent of the
reliance on the old rule, and (3) the effect on the
administration of justice by the retroactive application of
the new rule.
Blackwell v. State Ethics Comm’n, 589 A.2d 1094, 1099 (Pa. 1991). In Dana
Holding II, the Pennsylvania Supreme Court held: “[T]he inertia favoring
application of the general rule of retroactive application to cases pending on direct
appeal should control.” Dana Holding II, 232 A.3d at 647.
Our Supreme Court expounded:
Significantly, this case concerns none of the subject areas
in which th[e Supreme] Court has observed that it has
additional latitude to implement a ruling prospectively,
i.e., rules of the court’s own making, involving procedural
matters, or entailing common law development. It does
not involve public financing or tax refunds . . . . Although
there may be some remaining latitude for a balancing of
interests given the longstanding presumptive validity of
[the statute] and employers’ and insurers’ understandable
reliance thereon for many years, we find that [the
e]mployer has not shown that its interests are so
substantially predominant as to justify a departure from
the default approach.
Id. (citation omitted). Accordingly, the Dana Holding II Court held that its ruling
in Protz II was retroactive to the IRE date, rather than the date Protz II was decided
because the case was on appeal at the time Protz II was decided.
Concerning the Blackwell Court’s holding that its retroactivity
approach is applicable to instances in which prior law is overruled and a new
8
principle is announced, the Dana Holding II Court believed Protz II was not such an
instance, opining:
Our hesitation in crediting this facet of Blackwell outright
is that the Blackwell Court framed the approach as
applicable to instances in which prior law is overruled and
a new principle is announced, see id.; whereas, we are
more of the view that ‘the mere application of well-settled
constitutional principles to discrete factual scenarios is not
the application of a new legal theory or one that had not
been foreshadowed by other precedents.’ Reynoldsville
Casket [Co. v. Hyde], 514 U.S. [749,] 762 [(1995)]. . .
(Kennedy, J., concurring).
Dana Holding II, 232 A.3d at 648. The Dana Holding II Court expounded:
Accordingly, rather than overruling Blackwell in its
entirety, we have chosen to deconstruct the decision, and
to analyze the present case in light of the underlying
themes and principles that are of relevance in this difficult
area of the law[.] Ultimately, our present decision stands
for the principle that the general rule in Pennsylvania
will be that, at least where prior judicial precedent
isn’t overruled, a holding of this Court that a statute is
unconstitutional will generally be applied to cases
pending on direct appeal in which the constitutional
challenge has been raised and preserved. At the present
point in time, however, the [Supreme] Court is not of a
mind to exclude the possibility of equitable balancing
in extraordinary cases, particularly since no party [sic]
this appeal has advocated any such position.
Dana Holding II, 232 A.3d at 648-49 (citations omitted).
In Whitfield, this Court did not address the issue of whether Protz II
established “a new rule,” but rather decided the issue of Protz II’s application under
Section 413(a) of the Act (reinstatement based on whether the disability of the
injured employee has increased, decreased, recurred, or has temporarily or finally
ceased), as opposed to Section 306(a.2) of the Act (reinstatement based on
impairment rating).
9
Indeed, concerning the retroactivity of Protz II, the Whitfield Court
opined:
Both parties painted this case as an issue involving the
retroactivity of Protz II. Given the facts of this case,
however, the issue is not purely a question of
retroactivity. We previously explained:
A retroactive law has been defined as one which
relates back to and gives a previous transaction a
legal effect different from that which it had under
the law in effect when it transpired. . . . A law is
given retroactive effect when it is used to impose
new legal burdens on a past transaction or
occurrence.
Dep’t of Lab[.] [&] Indus., Bureau of Emp[.] Sec. v. Pa.
Eng’g Corp., . . . 421 A.2d 521, 523 ([Pa. Cmwlth.] 1980)
(. . . internal citations omitted); see also Passarello . . . , .
. . 87 A.3d [at] 307 . . . (requiring a decision to announce
a new rule of law before it can be given retroactive
effect); Commonwealth v. Hughes, . . . 865 A.2d 761, 780
([Pa.] 2004) (explaining a court decision is considered
‘new’ for purposes of retroactivity if it imposes a new
obligation on the parties). Our decision today does not
impose any new legal consequences based upon a past
transaction. Simply because Protz II is being applied to a
case that arose from a work injury and a change in
disability status that predates it does not mean it operates
retroactively. Warren v. Folk, 886 A.2d 305, 308 (Pa.
Super. 2005). It would be retroactive if it related back and
gave a prior transaction a legal effect different from that
which it had under the law in effect at the time. Id. This
decision does not alter [the c]laimant’s past status. Rather,
it gives effect to the [c]laimant’s status as it existed at the
time she filed her reinstatement petition, which was filed
within the statutory timeframe for filing such petitions.
Whitfield, 188 A.3d at 616-17 (emphasis omitted; emphasis added). Consequently,
it is clear that Whitfield did not hold that Protz II is to be applied retroactively to the
effective date of Section 306(a.2) of the Act, or more relevant, the date of the original
IRE.
10
Here, the status of the TPSA terms for future medical expense
subrogation was not “pending on direct appeal” at the time Whitmoyer was decided.
Dana Holding II, 232 A.3d at 647. Therefore, Dana Holding II does not require,
and this Court will not order, that Whitmoyer be applied retroactively to the date of
the TPSA’s origination.
Under the Dana Holding II Court’s reasoning, because Section 319 of
the Act was an existing statute which the Pennsylvania Supreme Court had not yet
interpreted, and applying well-settled statutory interpretation principles was
foreseeable, Whitmoyer did not establish a new rule. See also Fiore. Thus, this
Court’s holding that Whitmoyer is not retroactive to the date of the TPSA is not based
on finding that Whitmoyer established a new rule of law, just as the Dana Holding
II Court’s ruling that Protz was not retroactive was not based on such a finding.
However, because the TPSA was not a final resolution of the claim, it
was subject to review under Section 413 of the Act because Claimant was still
receiving disability benefits. Given that our Supreme Court interpreted that portion
of Section 319 of the Act for the first time in Whitmoyer, such that the TPSA’s terms
were not known to be materially incorrect until Whitmoyer was decided, and
Guardian preserved the issue of Whitmoyer’s application to the TPSA by raising it
at the earliest point, Guardian is entitled to the benefit of the ruling as of the date
Whitmoyer was decided. This result is consistent with Whitfield, wherein this Court,
for differing reasons, held that Protz II was not retroactive to the IRE, but rather the
date of the reinstatement petition therein, as that was the date the claimant averred a
change in disability status. Here, the date the Pennsylvania Supreme Court decided
Whitmoyer was the date the portion of the TPSA regarding future medical benefits
effectively became invalid. As such, “given the longstanding presumptive validity
of [the statutory interpretation] and employers’ and insurers’ understandable
11
reliance thereon for many years,” Dana Holding II, 232 A.3d at 647, “equitable
balancing” is warranted. Id. at 649 (emphasis added).
Moreover, ruling that Whitmoyer’s retroactivity is not limited to cases
pending at the time it was announced is consistent with Whitmoyer’s holding,
wherein the Pennsylvania Supreme Court opined: “[I]t bears emphasizing that the
conclusion we reach today is wholly consistent with the remedial nature of the [Act],
which should be interpreted for the benefit of the worker and liberally construed to
effectuate its humanitarian objectives.” Whitmoyer, 186 A.3d at 958. Accordingly,
the WCJ did not err by directing Employer to reimburse the Trust for any medical
expenses the Trust paid after June 19, 2018, the date Whitmoyer was decided, and to
pay 100% of Claimant’s medical expenses going forward.
Employer declares that Claimant waived his right to raise the issue of
reduced reimbursement pursuant to the TPSA by failing to dispute Employer’s right
to reduced reimbursement on all future medical payments at the time the TPSA was
executed. Guardian rejoins that the Whitmoyer Court held otherwise.
The WCJ opined:
The [p]arties have followed a procedure since June of
2016, on how medical bills are processed and paid. This
process was based upon years of interpretation of Section
319 of the Act. I do not find that by entering into this
arrangement in 2016, that Claimant has ‘waived’ any
rights.
WCJ Dec. at 5, Finding of Fact 13(c). This Court agrees. The use of a boilerplate
form the WC Bureau (Bureau) provided, which has been used repetitively
throughout the years based on the then-current interpretation of Section 319 of the
Act, does not constitute waiver of the right to rely on the present interpretation of
12
Section 319 of the Act. See Whitmoyer.5 Accordingly, Claimant did not waive his
right to raise the issue of reduced reimbursement pursuant to the TPSA.
Employer also claims that the doctrines of collateral estoppel and/or res
judicata barred Claimant from objecting to the reduced reimbursement set forth in
the TPSA. Specifically, Employer asserts that Claimant agreed to the contents of
the Petition for Approval, executed the TPSA, which the trial court approved without
objection, and volunteered to set up a medical benefit payment procedure for the
Trustee. Thus, Employer contends that Claimant is estopped from raising the issue
of reduced reimbursement pursuant to the TPSA.
5
The Whitmoyer Court explicated:
[W]e find no merit to [the employer’s] contention that Whitmoyer’s
counsel [(Counsel)] knew, by virtue of filling in the ‘37%’ figure on
the TPSA, that his client’s balance of recovery would be susceptible
to diminution for future medical expenses paid by the employer.
[The employer] characterizes this figure as relevant only to future
expenses, and therefore only to medical expenses, because
Whitmoyer’s disability benefits had been commuted many years
prior. This characterization is both inaccurate and inconsistent with
[S]ection 319 [of the Act]’s command that ‘the employer shall pay
that proportion of the attorney’s fees and other proper disbursements
that the amount of compensation paid or payable at the time of
recovery or settlement bears to the total recovery or settlement.’ 77
P.S. § 671 . . . .
The Bureau’s instructions for filling in the blanks of the boilerplate
third-party settlement agreement provide, inter alia, that the ‘rate of
reimbursement to the employee of expenses of recovery is
determined by dividing the [WC] lien by the gross recovery.’ . . . .
Thus, the ‘37%’ figure is both required by the Bureau and material
to calculating the employer’s net entitlement to subrogation at the
time of settlement.
Whitmoyer, 186 A.3d at 957-58 (internal citations and emphasis omitted; italics added).
Just as Counsel in Whitmoyer could not have presumed knowledge as to the
meaning of the terms as written in the Bureau’s boilerplate form, neither could Guardian waive his
rights thereunder, simply by filling in the blanks as required.
13
Guardian rejoins that Employer waived the collateral estoppel and res
judicata defenses because it did not raise these affirmative defenses before the WCJ.
Guardian further responds that Employer also waived the res judicata affirmative
defense by failing to develop that argument in its brief to this Court, and, even if
made, Employer would not have prevailed on that argument.
At the outset, Employer raised the collateral estoppel defense before the
Board and the Board addressed it. Thus, in an abundance of caution, this Court will
also address Employer’s collateral estoppel argument. Concerning Employer’s res
judicata argument, in its brief to this Court, the full extent of Employer’s argument
is as follows: “Collateral estoppel, a form of res judicata, applies in this matter to
bar Claimant’s [] Petition.” Employer Br. at 10. The law is well-established that
arguments not fully developed will be deemed waived. See In re Condemnation of
Land for S.E. Cent. Bus. Dist. Redevelopment Area No. 1 (405 Madison St., City of
Chester), 946 A.2d 1154, 1156 (Pa. Cmwlth. 2008) (“Arguments not properly
developed in a brief will be deemed waived”). Because Employer did not properly
develop its res judicata argument, the Court will not address it separately.
The Pennsylvania Supreme Court has explained:
Collateral estoppel is similar [to res judicata] in that it bars
re-litigation of an issue that was decided in a prior action,
although it does not require that the claim as such be the
same. For example, if, in a breach of contract action, the
defendant asserts that the contract is invalid because of
fraud, but the contract is ruled valid and the defendant is
found liable, in a future lawsuit against the same party
alleging a separate breach of the same contract the
defendant is precluded from asserting the invalidity of the
contract based on fraud. See Restatement (Second) of
Judgments § 27, cmt. a, illus. 2 ([Am. Law Inst.] 1982).
Collateral estoppel will only apply where: the issue is the
same as in the prior litigation; the prior action resulted in
a final judgment on the merits; the party against whom the
14
doctrine is asserted was a party or in privity with a party
to the prior action; and the party against whom the
doctrine is asserted had a full and fair opportunity to
litigate the issue in the prior action. See Rue v. K-Mart
Corp., . . . 713 A.2d 82, 84 ([Pa.] 1998). In some
renditions, courts add a fifth element, namely, that
resolution of the issue in the prior proceeding was essential
to the judgment. See, e.g., Off[.] of Disciplinary Counsel
v. Kiesewetter, . . . 889 A.2d 47, 50-51 ([Pa.] 2005).
In re Coatesville Area Sch. Dist., ___ A.3d ___, ___ (Pa. No. 7 MAP 2020, filed
January 20, 2021), slip op. at 6 (emphasis added).
Here, Claimant settled his third-party products liability lawsuit by
agreeing with RECO to the contents of the Petition for Approval. Employer was not
a party or in privity with a party thereto. The trial court ordered the TPSA be
executed, and approved the net lien for Employer as a collateral issue so the third-
party settlement could be achieved. The legal and factual issues surrounding the
TPSA, and upon which the TPSA relied, were not litigated before the trial court, nor
did the parties thereto have the opportunity to litigate these issues to a final
adjudication on the merits. Accordingly, because Claimant did not have a full and
fair opportunity to litigate the issue in the prior action, collateral estoppel does not
apply.
Finally, Employer argues that the WCJ did not issue a well-reasoned
decision because she failed to adequately address all exhibits and Claimant’s and
Employer’s exhibits demonstrate that Claimant voluntarily agreed to a reduced
reimbursement rate on future medical benefits. Guardian responds that the WCJ’s
FOFs 6, 7 and 13 demonstrated her clear understanding that the parties had followed
the prior, generally accepted, erroneous interpretation of Section 319 of the Act,
regarding post third-party settlement medical benefit payments. Guardian maintains
that the WCJ’s decision correctly recognized that the TPSA cannot constitute
15
waiver, and neither can a few letters describing the mechanics of how those
erroneous payments would be made.
Section 422(a) of the Act provides:
Neither the [B]oard nor any of its members nor any [WCJ]
shall be bound by the common law or statutory rules of
evidence in conducting any hearing or investigation, but
all findings of fact shall be based upon sufficient
competent evidence to justify same. All parties to an
adjudicatory proceeding are entitled to a reasoned
decision containing findings of fact and conclusions of
law based upon the evidence as a whole which clearly
and concisely states and explains the rationale for the
decisions so that all can determine why and how a
particular result was reached. The [WCJ] shall specify
the evidence upon which the [WCJ] relies and state the
reasons for accepting it in conformity with this section.
When faced with conflicting evidence, the [WCJ] must
adequately explain the reasons for rejecting or discrediting
competent evidence. Uncontroverted evidence may not be
rejected for no reason or for an irrational reason; the
[WCJ] must identify that evidence and explain adequately
the reasons for its rejection. The adjudication shall
provide the basis for meaningful appellate review.
77 P.S. § 834 (emphasis added). This Court has explained:
In order to satisfy this standard, a WCJ does not need to
discuss every detail of the evidence in the record. Rather,
Section 422(a) of the Act requires WCJs to issue reasoned
decisions so that this Court does not have to ‘imagine’ the
reasons why a WCJ finds that the conflicting testimony of
one witness was more credible than the testimony of
another witness.
Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 76 (Pa.
Cmwlth. 2012) (citations omitted).
Here, the WCJ opined:
16
6. The Bureau form[] TPSA[] was signed by all [p]arties.
The TPSA reflects in #9 that the Employer/Insurer is
responsible for 33.7% of any future weekly benefits and
medical expenses to satisfy its obligation to reimburse its
pro rata share of employee’s fees and expenses until the
subrogation interest is exhausted[:] $8,794[,]377.00.
Thereafter, the Employer/Insurer is responsible for 100%
of any compensation liability. (Claimant’s Exhibit 2.)
7. Employer’s Exhibits B-E address, through
correspondence and e-mails of June 2016, the mechanism
for how future medical expenses would be paid.[FN] 1
[FN]1 Essentially, [Employer’s insurance carrier]
would review and reprice a medical bill, pay
33.7% of the medical bill, and then forward the
medical bill, repriced amount, and proof of
[Employer’s insurance carrier’s] 33.7% to the
Trustee . . . , which then paid the remaining 66.3%
balance of the medical bill.
....
13. Based upon a review of the foregoing, and a review of
the Act and the Whitmoyer decision, I find that [] Claimant
has met his burden of proof in the Petition . . . as of June
19, 2018.
a. The [Employer’s insurance c]arrier is responsible for the
payment of Claimant’s medical expenses at the rate of
100%, and of course, in accordance with repricing and
other requirements of the Act.
The TPSA is set aside only to the extent it required the
Trust to fund 66.3% of [the] medical expenses.
b. In so finding, I note that the use of the Bureau TPSA
form by the [p]arties is not binding.
It is noted that the Court, in Whitmoyer, stated[:]
‘Similarly, because we granted allocator to determine the
meaning of a [s]tatutory [t]erm, the [p]arties’ arguments
that are specific to the TPSA, rather than the language of
the [s]tatute, are unavailing.’ Id. at 957.
17
The TPSA, like many other forms used by the [p]arties in
[WC] matters, may be challenged, set-aside or reviewed.
Based upon Whitmoyer, Claimant has requested a Review
of Medical Billing, which requires a review of the TPSA
form.
c. The [p]arties have followed a procedure since June of
2016, on how medical bills are processed and paid. This
process was based upon years of interpretation of Section
319 of the Act. I do not find that by entering into this
arrangement in 2016, that Claimant has ‘waived’ any
rights. I note Claimant’s counsel’s reference to the
Commonwealth Court’s [d]ecision in Whitmoyer,[6] on the
issue of waiver.
d. Whitmoyer applies to this matter as of June 19, 2018.
WCJ Dec. at 4, 5. Clearly, this “adjudication [] provide[s] the basis for meaningful
appellate review.” 77 P.S. § 834. Accordingly, the WCJ issued a reasoned decision.
For all of the above reasons, the Board’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
6
Whitmoyer v. Workers’ Comp. Appeal Bd. (Mountain County Meats), 150 A.3d 1003 (Pa.
Cmwlth. 2016), rev’d, 186 A.3d 947 (Pa. 2018).
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Beaver Valley Slag, Inc., :
Petitioner :
:
v. :
:
Jason Marchionda (Workers’ :
Compensation Appeal Board), : No. 867 C.D. 2020
Respondent :
:
Jamie Young, Guardian of the :
Estate of Jason Marchionda, an :
Incapacitated Person, :
Petitioner :
:
v. :
:
Beaver Valley Slag, Inc. (Workers’ :
Compensation Appeal Board), : No. 901 C.D. 2020
Respondent :
ORDER
AND NOW, this 10th day of March, 2021, the Workers’ Compensation
Appeal Board’s August 13, 2020 order is affirmed.
_________________________________
ANNE E. COVEY, Judge