Williams v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Senior Judge KELLEY.

I respectfully dissent.

In the instant case, Employer accepted liability for Claimant’s injury in the nature of a lumbosacral strain in the notice of compensation payable (NCP) dated July 25, 1997, and Claimant received compensation benefits. On June 10,1998, Employer sought to terminate Claimant’s compensation benefits on the basis that Claimant had fully recovered from this accepted work-related injury. In the proceedings on Employer’s petition, the only relevant inquiry was whether or not Claimant had fully recovered from the accepted work-related injury.1 Thus, in the proceedings on Employer’s 1998 termination petition, *537any findings by the WCJ with respect to the condition of Claimant’s disc bulge at the L5-S1 level were not “essential” to his resolution of whether Claimant had fully recovered from the lumbosacral strain that was acknowledged in the NCP. As a result, the doctrine of collateral estoppel does not apply in this case. See Patel v. Workmen’s Compensation Appeal Board (Sauquoit Fibers Co.), 88 Pa.Cmwlth.76, 488 A.2d 1177, 1179 (1985), petition for allowance of appeal denied, 515 Pa. 616, 530 A.2d 869 (1987) (“[W]here particular questions of fact essential to the-judgment are actually litigated and determined by a final valid judgment, the determination is conclusive between the parties in any subsequent action on a different cause of action.”).2

Accordingly, unlike the Majority, I would reverse the Board’s order.

. See e.g., Commercial Credit Claims v. Workmen's Compensation Appeal Board (Lancaster), 556 Pa. 325, 332, 728 A.2d 902, 905 (1999) ("[Sjince the terms of the original Notice of Compensation Payable are 'valid and binding unless modified or set aside’, 77 P.S. § 731, supra, and since claimant did not attempt to modify the terms of the original Notice of Compensation Payable in accordance with §§ 771-772, the lower tribunals erred by failing to confine their analysis of employer’s termination petition to whether *537the injuries set forth in the original Notice of Compensation Payable had been resolved. ..."); Temple University Hospital v. Workers’ Compensation Appeal Board (Sinnott), 866 A.2d 489, 496 (Pa.Cmwlth.2005) ("[Rjecently, in City of Philadelphia v. Workers’ Compensation Appeal Board (Smith), 860 A.2d 215 (Pa.Cmwlth.2004), our court addressed a WCJ’s authority to modify the injury as defined in the NCP during proceedings on an employer's termination and utilization review petitions. The employer had accepted liability for a "low back strain” and thereafter sought a termination of benefits on the basis that the claimant had fully recovered from this injury. Relying on the claimant’s expert testimony, the WCJ denied the employer’s petitions and redefined the claimant’s injury to include post-traumatic lumbar radiculopathy and two herniated discs. The WCAB affirmed, but on appeal in City of Philadelphia, we reversed_We ... held that the testimony of the claimant's experts concerning conditions that were not accepted by the employer in the NCP 'was irrelevant’ to the question of whether the claimant had recovered from the acknowledged work injury. City of Philadelphia, 860 A.2d at 222.... In accord with Commercial Credit and City of Philadelphia, we conclude that the WCJ erred in issuing findings concerning Claimant's organic mood disorder and psychiatric disturbance, which are irrelevant to the WCJ's determination as to whether Claimant fully recovered from the adjudicated work injuiy. Therefore, the WCAB erred in failing to vacate these findings.”).

. In the instant appeal, Claimant also asserts that there is not substantial evidence supporting the continued termination of her benefits . as Employer failed to present testimony that her injury did not increase or that her physical condition did not change following the termination of her benefits. However, as this claim was neither raised before, nor addressed by, the Board, it should not be considered by this Court for the first time in this appeal. Pa.R.A.P. 1551(a); Lewis v. Workers’ Compensation Appeal Board (Disposable Products), 853 A.2d 424 (Pa.Cmwlth.2004).