Commonwealth, Department of Corrections v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Judge PELLEGRINI.

Because it is against our Supreme Court’s decision in Cohen v. Workers’ Compensation Appeal Board (City of Philadelphia), 589 Pa. 498, 909 A.2d 1261 (2006), which is virtually identical to this case, I disagree with the majority’s holding that the Workers’ Compensation Judge (WCJ) was collaterally estopped from determining that Brenda Wagner-Stover (Claimant) continued to suffer from work-related injuries after the Department of Corrections (Department) found the opposite in Claimant’s Act 632 hearing. Accordingly, I respectfully dissent.

This appeal arises out of the prison riot in 1989 at the State Correctional Institution at Camp Hill where Claimant worked for the Department as a canteen manager in the commissary. On the second day of the prison riot, Claimant reported to work. As she walked through the prison, she was verbally assaulted by locked-down prisoners who shouted obscenities and sexual comments at her. While Claimant did not come into physical contact with the prisoners, she later learned that she was the only female on the prisoners’ “hit list.” Claimant filed a claim asserting that she suffered from post-traumatic stress disorder-as a result of this incident at the Camp Hill prison. The Department agreed to pay Claimant both workers’ compensation *618and Act 632 benefits.1

The Department sought to terminate Claimant’s workers’ compensation benefits. In a November 1995 decision, the WCJ denied the Department’s request to terminate benefits finding that Claimant was still suffering from post-traumatic stress disorder. In March 1999, the Department again petitioned for a termination of Claimant’s workers’ compensation benefits. In a May 2000 decision, the WCJ found that Claimant was still suffering from her work-related post-traumatic stress disorder and had not fully recovered.

In December 2004, the Department brought an administrative action seeking to stop Claimant’s Act 632 benefits asserting that Claimant was no longer suffering from a post-traumatic stress disorder, but rather suffered from a personality disorder that pre-existed the 1989 work-related incident. After a hearing, the Secretary found that Claimant had fully recovered from her work-related post-traumatic stress disorder. Among other reasons, Claimant appealed to this Court contending that collateral estoppel prevented the Secretary from finding that she had recovered from her post-traumatic stress syndrome because the Secretary was bound by the WCJ’s decision that she had not. Affirming the Secretary’s decision to stop Act 632 benefits, we held (Leavitt, J.) that “[bjecause the legal issues in an Act 632 proceeding are different from those in a workers’ compensation proceeding, a hearing examiner can make factual findings that are contrary to those made by a WCJ in a collateral workers’ compensation proceeding. In addition, because a claimant’s condition may change, the principle of collateral estoppel does not preclude an employer who was unsuccessful in terminating a claimant’s benefits on one occasion from trying again.” (Citations omitted.)2

In 2006, Employer filed a termination petition for the third time to terminate Claimant’s workers’ compensation benefits. Among other things, it argued that collateral estoppel prevented the WCJ from finding that she had not recovered from her work-related injury because the Secretary had found that she had recovered from her psychic injury in terminating benefits under Act 632. Finding that she had not fully recovered from her work-related injuries, the WCJ denied Employer’s termination petition.3

*619Even though we had held that collateral estoppel did not bind the Secretary in an Act 632 proceeding following a WCJ’s decision that Claimant had not recovered, the Department then filed this appeal contending that collateral estoppel did bind the WCJ to follow the Secretary’s findings4 that Claimant had fully recovered from her work-related injury even though this position was inconsistent with its position that a WCJ’s findings were not binding on the Secretary in an Act 632 proceeding. The majority (Leavitt, J.), adopting the Department’s position, supplants the WCJ’s findings with those of the Secretary and terminates Claimant’s workers’ compensation benefits. Not only do I dissent because this outcome is inexplicable given that we have held that a workers’ compensation decision does not bind the Secretary in an Act 632 proceeding, I dissent because that decision is against Supreme Court precedent and our precedent.

“Collateral estoppel, or issue preclusion, is a doctrine which prevents re-litigation of an issue in a later action, despite the fact that it is based on a cause of action different from the one previously litigated. Id. The identical issue must have been necessary to final judgment on the merits, and the party against whom the plea is asserted must have been a party, or in privity with a party, to the prior action and must have had a full and fair opportunity to litigate the issue in question.” Bortz v. Workers’ Compensation Appeal Board (Reznor Div. of FL Industries), 546 Pa. 77, 81, 683 A.2d 259, 261 (1996), quoting Balent v. City of Wilkes-Barre, 542 Pa. 555, 564, 669 A.2d 309, 313 (1995). See also Benginia v. Workers’ Compensation Appeal Board (City of Scranton), 805 A.2d 1272 (Pa.Cmwlth.2002).

We have consistently held that the legal or factual issues in the workers’ compensation termination proceeding are not identical to the issues in the Act 632 termination proceeding and may be distinguished by examining the underlying substantive provisions of Act 632 and the Workers’ Compensation Act.5 In Hardiman v. Depart*620ment of Public Welfare, 121 Pa.Cmwlth. 120, 550 A.2d 590, 594 (1988), this Court stated that the “substantive differences between the two benefit programs (Act 632/534 ‘full salary1 and workers’ compensation two-thirds of the employee’s wages) support to some extent the ... characterization of them as concurrent rather than having a primary and supplemental relationship.” We also found that compensa-bility under workers’ compensation is not necessarily a prerequisite to a cognizable claim under Act 632, and that Act 632 benefits are not to be ended without a due process hearing — separate and distinct from the workers’ compensation proceeding.

More recently, in Scierka v. Department of Corrections, State Correctional Institution at Dallas, 852 A.2d 418 (Pa.Cmwlth. 2004), we held that collateral estoppel did not bar the Secretary from finding that a claimant had fully recovered from a work-related injury when a workers’ compensation judge had previously found she had not. In that case, the claimant, a female psychological services specialist employed at SCI-Dallas, was counseling a male inmate when he reached through the bars of his cell and touched her right breast while she was taking notes. She filed a claim with the Department of Corrections for benefits under Act 632 alleging a psychiatric injury. She also filed a claim for workers’ compensation benefits. While her claim was pending before the Department, a WCJ granted her claim petition for a psychic injury. The Department ultimately denied her claim for a psychic injury and denied her Act 632 benefits. She filed an appeal to this Court arguing that the doctrine of collateral estoppel precluded the Department from making contrary findings to those of the WCJ. Relying on Cantarella v. Department of Corrections, 835 A.2d 870 (Pa.Cmwlth.2003), also a case with similar facts, we held that the “doctrine of collateral estoppel does not preclude the [Department] from making findings contrary to those made by a WCJ in a collateral workers’ compensation proceeding.” Scierka, 852 A.2d at 422.

The different legal issues involved in each proceeding are evident when considering the standards for terminating benefits in an Act 632 proceeding as compared to a workers’ compensation proceeding. Act 632 benefits “are to terminate once the Employer can show that the employee’s disability no longer prevents his return to his pre-injury salary.” Williams v. Department of Corrections, 164 Pa.Cmwlth. 224, 642 A.2d 608, 612 (1994), citing Wertz v. Department of Corrections, 148 Pa. Cmwlth. 133, 609 A.2d 899 (1992). In comparison, under the Workers’ Compensation Act, the employer must prove that the claimant’s work-related “disability has ceased or that any current disability arises from a cause unrelated to the employee’s work injury” in order to obtain a termination of benefits.6 Campbell v. Workmen’s Compensation Appeal Board (An*621tietam Valley Animal Hospital), 705 A.2d 503, 506 (Pa.Cmwlth.1998). While Scierka involves the applicability of a workers’ compensation decision to an Act 632 proceeding, the inverse is also true: a workers’ compensation judge in a workers’ compensation proceeding is not collaterally estopped from making factual findings contrary to those made by a hearing examiner in an Act 632 proceeding because the proceedings are separate and the requirements are distinct.

Our Supreme Court has never held that a decision of one administrative agency is binding on another administrative agency.7 In Bortz, a claimant was terminated from employment due to being out of his work area without permission and insubordinate by failing follow the instructions of the work shop manager. The Workers’ Compensation Appeal Board specifically found that he had not engaged in such conduct. In response to a claim for reinstatement of benefits, Employer defended because “Claimant lost said job, however, due to his misconduct at work.” The claimant contended that collateral estoppel applied in a workers’ compensation proceeding because the standard in the unemployment setting was essentially identical to the standard used in workers’ compensation cases to deny benefits — that the claimant’s lack of earning power was his own fault. Although the “fact” was the same, our Supreme Court found the issue was not one of misconduct akin to that found in unemployment compensation because the ultimate issue was whether the claimant’s injury was again affecting his ability to earn, while unemployment compensation benefits, on the other hand, turned on a question of “willful misconduct,” i.e., on the presence or absence of a defined level or degree of misconduct. So while the finding of the same “fact” in a workers’ compensation proceeding would arrive at the denial of indemnity benefits, the context in which it was made rendered collateral es-toppel inapplicable.

Most pertinent to the case before us is our Supreme Court’s decision in Cohen. In that case, our Supreme Court addressed the collateral estoppel effect of an earlier Philadelphia Civil Service Commission Regulation 32 proceeding, which found that a police officer could return to a subsequently-filed reinstatement' petition in the workers’ compensation forum. In that case, the Civil Service Commission found that the police officer/Claimant had fully recovered from his injuries. Reversing our decision, our Supreme Court held that a workers’ compensation judge was not bound by the decision of the Philadelphia Civil Service Commission, and the WCJ may conduct a separate evaluation of the evidence stating:

Both because liability under the Workers’ Compensation Act may span a substantially longer period and because the benefits available under Regulation 32 supplant workers’ compensation benefits for a defined period, the employee’s net recovery, and the City’s (or any insurer’s) net risk, under Regulation 32 is substantially narrower in scope than the potential liability under the workers’ compensation scheme. In particular, *622with regard to an employee claiming total disability, the net amounts in controversy in Regulation 82 proceedings are substantially lower than in a workers’ compensation matter that may result in lifetime benefits. See 77 P.S. § 511. On the procedural side, the Workers’ Compensation Act details extensive procedures for resolving various disputes concerning benefits, see 77 P.S. §§ 701-791, that are lacking under Regulation 32. Thus, although the Commission has tools at its disposal similar to those available to a workers’ compensation judge, such as the power to issue subpoenas, the procedures under Regulation 32 are substantially more ad hoc than those pertaining in the workers’ compensation arena.
Moreover, we agree with Claimant that, in recognition of the special character of the Pennsylvania workers’ compensation system, it is preferable to permit the determination of disability for purposes of workers’ compensation benefits to be made within that scheme, as opposed to by a local civil service commission. As this Court has previously explained, the Workers’ Compensation Act’s “uniquely detailed substantive and procedural provisions” supplant traditional common law rights and remedies, limiting recoveries in a manner that, in any other context, would be beyond the Legislature’s authority. East [v. Workers’ Compensation Appeal Board, 574 Pa. 16, 25, 828 A.2d 1016, 1021]. Philadelphia’s civil service regulations, on the other hand, arise in a significantly different landscape and have a substantially different focus, as they encompass many other forms of employment actions and decisions, with which Regulation 32 benefits are intermingled. Consequently, the Commission administers appeals concerning a materially broader range of subject matter extrinsic to the uniquely structured environment of the Workers’ Compensation Act.
In summary, we recognize the unique nature of the workers’ compensation scheme, the substantial interest of claimants at stake, and the procedural and economic differences as compared to Regulation 32 proceedings. Further, we are reluctant to construe a scheme affording special remuneration to injured police officers as foreclosing such officers’ access to review in the workers’ compensation system on the critical question of disability. Accordingly, we find it appropriate to allow the decision concerning earnings capacity under the Workers’ Compensation Act to be made in a manner contemplated within such remedial legislation.

Id. at 1270-1271.

Such reasoning is equally applicable to this case because Philadelphia Civil Service Regulation 328 was enacted for a similar purpose as the benefits given under Act 632.9 The Workers’ Compensation *623Act may span a substantially longer period than under Act 632; benefits available under Regulation 32 do not apply when a claimant can no longer return to work; and the claimant’s net recovery and the employer’s net risk under Act 632 is substantially narrower in scope than the potential liability under the workers’ compensation scheme. In particular, with regard to an employee claiming total disability, the net amounts in controversy under Act 632 proceedings are substantially lower than in a workers’ compensation matter that may result in lifetime benefits. On the procedural side, the Workers’ Compensation Act details extensive procedures for resolving various disputes concerning benefits, see 77 P.S. §§ 701-791, that are nonexistent under Act 632.

In summary, I believe Cohen is controlling because even though it involves Regulation 32, it is virtually the same as Act 632.10 Necessarily then, I would echo our Supreme Court’s holding in Cohen regarding Regulation 32 by recognizing the unique nature of the workers’ compensation scheme, the substantial interest of claimants at stake, and the procedural and economic differences as compared to Act 632 proceedings. Further, we should be reluctant to construe a scheme affording special remuneration to injured correction officers as foreclosing such officers’ access to review in the workers’ compensation system on the critical question of disability. Accordingly, we should find it appropriate to allow the decision concerning earnings capacity under the Workers’ Compensation Act to be made in a manner contemplated within such remedial legislation.

What Cohen and Bortz teach us is that for the purpose of applying preclusive effect between administrative agencies, it is not a simple matter to determine the identity of issue, because “a fact is not just a fact” but also is encompassed by who decides the fact and in what context. Every administrative agency in the Commonwealth has been entrusted by the General Assembly to administer and enforce the acts over which it gave that agency jurisdiction. That grant of power by the General Assembly envisions that each agency *624has to be able to make its own decisions based upon its own expertise. If collateral estoppel was allowed, one agency’s hands would be tied by the findings and conclusions of another without being allowed to make independent findings and conclusions and applying its own expertise to the facts. Moreover, the quality of decision is different between different administrative agencies, particularly between independent agencies and departmental hearings involving their own employees. For example, under the Workers’ Compensation Act, a procedure is laid out in the statute that entrusts decision making by an independent WCJ with an internal appeal to the Workers’ Compensation Appeal Board, who both have an expertise in determining whether an employee is disabled and neither of which has any interest in the outcome. Compare this procedure with Act 632, a two-section statute, which contains no definitions and no procedural requirements but under the default Administrative Agency Law, allows the employer, the Secretary of the Department of Corrections, who has no expertise in the area, to determine whether the Department is required to continue making Act 682 payments. Moreover, collateral estoppel is a court created doctrine that applies to causes of action and judgments, not agency adjudications. See Bortz, supra.

Even if it means granting benefits to a claimant by one agency under one act when they have been denied to that same claimant by another agency under another act, it is better to have two different outcomes than to forego the rights of independent fact finding by an administrative agency charged with doing so under the act that it has been given jurisdiction to enforce.11

For the foregoing reasons, I would affirm the decision of the Workers’ Compensation Appeal Board and overrule prior cases holding that collateral estoppel applies between agencies.

.Section 1 of the Act of December 8, 1959, P.L. 1718, No. 632, as amended, (Act 632), 61 P.S. § 951, repealed in part, (not here relevant) by Section 9(b)(2) of the Act of October 4, 1978, P.L. 909. Act 632 provides, in relevant part:

Any employe of a State penal or correctional institution under the Bureau of Correction of the Department of Justice ... who is injured during the course of his employment by an act of any inmate or any person confined in such institution ... shall be paid, by the Commonwealth of Pennsylvania, his full salary, until the disability arising therefrom no longer prevents his return as an employe of such ... institution at a salary equal to that earned by him at the time of his injury.

. Stover v. Department of Corrections, No. 531 C.D.2006 (Pa.Cmwlth., filed September 28, 2006).

. The WCJ made the following relevant findings of fact:

3. Claimant has sleeping problems and nightmares. The nightmares involve the prison and inmates. Claimant also has high blood pressure which she attributes to her PTSD. Claimant does not believe she is fully recovered from her PTSD because she still has a fear of running into inmates. She currently treats with Dr. Wehman and Dr. Timme every two weeks for her PTSD. She is taking Prozac for her mental condition and Toprol for her blood pressure.
4. Claimant’s condition has worsened....
5. Claimant does not believe she can perform her pre-injury job. She no longer wants to work in criminal justice.... *6198. After careful consideration, and having observed Claimant’s demeanor when she testified, this Judge finds Claimant’s testimony credible and persuasive and accepts it as fact....
9. Claimant presented the April 24, 2006 medical report of Drs. Wehman and Tim-me. This report states as follows.
10. Claimant continues to treat with Drs. Wehman and Timme every one to three weeks for her PTSD. Claimant has made some progress but feels re-traumatized when this process requires her to recall events from the prison riot.
11. Claimant has not fully recovered from her PTSD and ... she remains unable to return to work.
12. After careful consideration, this Judge finds the opinions of Drs. Wehman and Timme credible, persuasive, and accepts them as fact. Claimant has not fully recovered from her work-related PTSD. The opinions of Drs. Wehman and Timme are accepted as credible because, as Claimant’s treating physicians, they are extremely familiar with her condition. Also, their opinions are undisputed by other medical evidence.
(WCJ Decision and Order, Findings of Fact (F.F.) Nos. 3-5, 8-12 at 2-3.)

. The Secretary concluded:

3. The DOC has proved by competent and credible evidence that the Claimant is no longer suffering from work related PTSD, but rather from a personality disorder NOS with borderline, histrionic and narcissistic features which is not work related.
6. The Claimant is no longer entitled to Act 632 benefits.
7. The Claimant is now fully recovered from her PTSD and is able to return to the Clerk I position at OPR that has been offered to her by the DOC.

. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.

. Section 306(a) of the Act, 77 P.S. § 511, provides that workers’ compensation benefits for state employees are generally limited to two-thirds of the employee’s wages and not paid as salary. Act 632 establishes a right of subrogation on the part of the Commonwealth in regard to any workers’ compensation benefits received or collected by the employee during the period when salary is being paid under Act 632. Hardiman. Act 632 benefits are determined independently and then to avoid stacking benefits, the General Assembly provided means for the state to recover separate workers' compensation benefits that the employee might receive for the same period of disability. Id. Although sharing a similar purpose, the two acts operate separately, requiring independent action. Polk Center v. Workmen’s Compensation Appeal Board (Pochran), 682 A.2d 889 (Pa. Cmwlth. 1996).

. Moreover, our Supreme Court has never held that collateral estoppel precludes a court from engaging in its own factfinding. In Rue v. K-Mart Corp., 552 Pa. 13, 713 A.2d 82 (1998), our Supreme Court held that a court need not apply collateral estoppel effect to an unemployment compensation proceeding because in an unemployment compensation proceeding, a Referee clearly did not allow parties to litigate issues in the manner available in a court of record. It noted that the Rules of Evidence did not apply, there was no procedure for prehearing discovery, and that the proceedings by definition were brief and informal.

. "Philadelphia Civil Service Regulation 32.0231 represents the mechanism by which the City effectively fulfills some or all of its obligations under the Heart and Lung Act, Act of June 28, 1935, P.L. 477 §§ 1-2 (as amended 53 P.S. § 637-638) (allowing police and fire personnel to collect full salary benefits for temporary injuries sustained in the performance of their duties).” Cohen, 589 Pa. at 501, 909 A.2d at 1263 fn. 1.

. See also Cantarella (collateral estoppel did not preclude the Department in Act 632 hearing from finding that prison employee who was rubbed on buttocks by inmate did not suffer from post-traumatic stress disorder as a result even though workers’ compensation judge had earlier found otherwise); City of Pittsburgh v. Workers' Compensation Appeal Board (McGrew), 785 A.2d 170 (Pa.Cmwlth. 2001) (collateral estoppel did not preclude employer from arguing before workers’ compensation judge that injured police officer had *623fully recovered after Heart and Lung Act hearing previously determined that officer was ineligible for continued benefits because her injury was permanent); Bortz v. Workmen's Compensation Appeal Board (Reznor Division of FL Industries), 656 A.2d 554 (Pa. Cmwlth.1995) (collateral estoppel did not preclude worker who had a work-related injury that allegedly reoccurred and was thereafter suspended for misconduct from relitigating issue in workers’ compensation proceeding after unemployment compensation referee had previously found that the worker did not engage in misconduct).

. "Regulation 32 implements a scheme by which the City affords wage-loss and other benefits in lieu of workers’ compensation benefits for a closed period, consistent with the City’s obligations under the Heart and Lung Act.” Cohen, 909 A.2d. at 1270. "Act 632 benefits are virtually identical to those afforded by the Heart and Lung Act.” Gribble v. Dept. of Corrections, 711 A.2d 593, 596 (Pa. Cmwlth.1998); see also: Cantarella v. Department of Corrections, 835 A.2d 870 (Pa. Cmwlth.2003). The Heart and Lung Act was intended to cover only those disabilities where the injured employee is expected to recover and return to his or her position in the foreseeable future. City of Pittsburgh v. Workers’ Compensation Appeal Board (Wiefling), 790 A.2d 1062, 1066 (Pa.Cmwlth.2001). The Heart and Lung Act clearly contemplates the ability of an injured employee to seek workers' compensation and benefits under the Heart and Lung Act simultaneously. City of Erie v. Workers' Compensation Appeal Board (Annunziata), 575 Pa. 594, 838 A.2d 598 (2003). Although the Heart and Lung Act and the WCA are similar in purpose, the two acts operate separately from one another. Wisniewski v. Workmen’s Compensation Appeal Board (City of Pittsburgh), 153 Pa. Cmwlth.403, 621 A.2d 1111 (1993).

. The majority cites to examples of where agencies have applied preclusive decisions of courts as an example as to why agency decisions should have preclusive effect on other agencies. The cases the majority cite for that proposition do not involve collateral estoppel. Bethea-Tumani v. Bureau of Professional and Occupational Affairs, 993 A.2d 921 (Pa. Cmwlth.2010), involved a conviction that was 14 years old and showed lack of good moral character to preclude the claimant from being licensed as a nurse. Khan v. State Bd. of Auctioneer Examiners, 577 Pa. 166, 842 A.2d 936 (2004), was a reciprocal disciplinary action required by Auctioneer Licensing and Trading Assistant Registration Act. See Act of December 22, 1983, P.L. 327, 63 P.S. § 734.20(a)(11).