Hebden v. W.C.A.B. (Bethenergy Mines, Inc.)

• Decision Date: 03 September 1991
• Docket Number: No. 64,64
• Citation: 142 Pa.Cmwlth. 176,597 A.2d 182
• Court: Pennsylvania Commonwealth Court
• Parties: Thomas HEBDEN, Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (BETHENERGY MINES, INC.), Respondent. C.D. 1990

Page 182

597 A.2d 182

142 Pa.Cmwlth. 176

Thomas HEBDEN, Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (BETHENERGY MINES INC.), Respondent.

No. 64 C.D. 1990

Commonwealth Court of Pennsylvania.

Argued Oct. 3, 1990.

Decided Aug. 27, 1991.

As Amended Sept. 3, 1991.

Blair V. Pawloski, for petitioner.

John J. Bagnato, for respondent.

Before CRAIG, President Judge, and DOYLE, COLINS, McGINLEY, PELLEGRINI, KELLEY, and BYER, JJ.

BYER, Judge.

Thomas Hebden appeals from a decision of the Workmen's Compensation Appeal Board. The board had affirmed the decision of a workmen's compensation referee granting Bethenergy Mines, Inc.'s petition to terminate a compensation award.

The issue is whether the principles of claim preclusion or issue preclusion prevent an employer from seeking to terminate a prior award of workmen's compensation benefits for disability resulting from occupational pulmonary disease, specifically, coal worker's pneumoconiosis. The referee and the board held that the employer, Bethenergy Mines, Inc., was not precluded from seeking to terminate Hebden's benefits pursuant to section 413 of The Pennsylvania workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended,77 P.S. § 772. We affirm. ¹

I. Background

On July 19, 1985, a workmen's compensation referee awarded Hebden $227.40 per week effective August 25, 1983, as compensation for partial disability as a result of coal worker's pneumoconiosis. This compensation would continue "thereafter into the future until such time as the claimant's disability ceases or changes in nature but not to exceed five hundred (500) weeks, unless disability becomes permanent in nature." Referee Finding of Fact 3. Neither party appealed this award.

On November 2, 1987, the employer filed a form "petition for termination, suspension or modification of compensation," specifically designating the petition (by a checkmark in the appropriate box) as one for modification. The employer's petition stated, "[b]ased on recently received medical evidence, claimant's disability has changed and he is no longer disabled from occupational pulmonary disease." (3a). Hebden denied this assertion.

Several hearings were held before another referee at which time the parties introduced medical testimony and other evidence, including medical reports, pulmonary function studies, x-rays, and x-ray "re-read" reports. Doctors Pickerill and Katter expressed medical opinions on Hebden's condition based upon physical examinations conducted on March 6 and November 2, 1987, respectively, and upon a variety of medical tests. These medical experts concluded that Hebden did not suffer from coal worker's pneumoconiosis, but suffered instead from non-occupational bronchial asthma, and that his condition did not prevent or impair him from returning to work at his last job as a shuttle car operator in the mines. Findings 10, 11. Additionally, the employer introduced the August 24, 1988 medical report of Dr. Fino who had examined all of the extensive clinical data and medical records regarding Hebden's pulmonary condition that had been generated from 1977 through 1988. Dr. Fino concluded that Hebden suffered from non-occupational bronchial asthma which did not prevent him from returning to coal mining work or a job of similar effort. Finding 12.

Hebden's medical witness, Dr. Klemens, testified to the contrary that he had examined Hebden in October 1987, and that Hebden continued to suffer from coal worker's pneumoconiosis. Dr. Klemens also stated that Hebden remained partially disabled and unable to return to his former employment. Finding 13.

The referee resolved this conflict in the medical evidence in favor of the employer, and made the following finding of fact:

Based on the evidence presented and careful review of the record, this Referee finds the opinions expressed by Doctors Katter and Pickerill as corroborated by Dr. Fino and others more credible than those of Dr. Klemens. The claimant is neither partially or totally disabled as a result of coal worker's pneumoconiosis or any occupationally acquired lung disease. It is the opinion of several physicians that the claimant suffers from a non-occupational disease, namely, bronchial asthma which has no connection whatsoever to the coal mining environment.

Finding 14 (emphasis added).

Based upon this finding, the referee concluded that the employer had met its burden of proving Hebden's disability had ceased. The referee also held that there was no "res judicata" preclusion (or claim preclusion) because the prior award of benefits addressed Hebden's disability "at that point and time," but the petition to terminate raised the issue of Hebden's physical condition as of March 6, 1987 and beyond. Finding 17. The board affirmed.

Hebden argues that the principle of "res judicata" bars a referee from finding that a claimant has neither coal worker's pneumoconiosis ² nor any occupationally acquired lung disease where a prior referee found the claimant to be partially disabled as a result of coal worker's pneumoconiosis. ³ II. "Res Judicata"--In General

"Res judicata" is a generic term used by courts and litigants to refer to the various ways in which a judgment in an action will have a binding effect in a later action. Clark v. Troutman, 509 Pa. 336, 342, 502 A.2d 137, 139 (1985). The generic term refers to two related principles, "technical res judicata" (sometimes called "strict res judicata"), and "broad res judicata" (frequently called "collateral estoppel)." Patel v. Workmen's Compensation Appeal Board (Sauquoit Fibers Co.), 88 Pa.Commonwealth Ct. 76, 79, 488 A.2d 1177, 1179 (1985).

As Mr. Justice Roberts explained in Duquesne Slag Products Co. v. Lench, 490 Pa. 102, 415 A.2d 53 (1980), the "modern res judicata doctrine" encompasses two different, though related ways

in which a judgment in one action will have a binding effect on another. This includes the effect of the former judgment where the later action proceeds on all or part of the very claim which was the subject of the former. In traditional terminology, this effect is called merger or bar; in modern terminology it is called claim preclusion. A second effect is traditionally known as collateral estoppel and modernly called issue preclusion. It has to do with an issue determined in a first action when the same issue arises in a later action based upon a different claim or demand.

490 Pa. at 107, 415 A.2d at 55 (Roberts, J., dissenting) (quoting F. James, Jr. and G. Hazard, Jr., Civil Procedure 532 (2d ed. 1977)). See Restatement (Second) of Judgments, § 18 (Judgment for Plaintiff-The General Rule of Merger), § 19 (Judgment for Defendant--The General Rule of Bar), and § 27 (Issue Preclusion-General Rule). ⁴

The modern principle of claim preclusion is that a final, valid judgment on the merits by a court of competent jurisdiction precludes any future suit or action between the parties or their privies on the same cause of action. Zarnecki v. Shepegi, 367 Pa.Superior Ct. 230, 236, 532 A.2d 873, 877 (1987), appeal denied, 518 Pa. 643, 542 A.2d 1371 (1988). The "fundamental principle" underlying the rule of claim preclusion is that a judgment should be "conclusive as between the parties and their privies in respect to every fact which properly could have been considered in reaching the determination and in respect to all points of law relating directly to the cause of action and affecting the subject matter before the court." Bearoff v. Bearoff Brothers, Inc., 458 Pa. 494, 498, 327 A.2d 72, 75 (1974). Claim preclusion applies not only to matters which were actually litigated, but also to matters which should have been litigated at the first proceeding if they were part of the same cause of action. Andersen v. Workmen's Compensation Appeal Board (National Forge Co.), 113 Pa.Commonwealth Ct. 601, 604, 537 A.2d 971, 973 (1988).

Issue preclusion, traditionally known as collateral estoppel or broad res judicata, "forecloses re-litigation in a later action, of an issue of fact or law which was actually litigated and which was necessary to the original judgment." City of Pittsburgh v. Zoning Board of Adjustment, 522 Pa. 44, 55, 559 A.2d 896, 901 (1989); see also Odgers v. Unemployment Compensation Board of Review, 514 Pa. 378, 387 n. 13, 525 A.2d 359, 364 n. 13 (1987). Unlike claim preclusion, there is no requirement that there be an identity of parties between the two actions to preclude relitigation of an issue, and issue preclusion may be asserted as either a "sword or a shield" by a stranger to the prior action as long as the party against whom it is asserted was a party or in privity with a party. Calesnick v. Board of Finance & Revenue, 114 Pa.Commonwealth Ct. 292, 298, 538 A.2d 989, 991 (1988), (quoting Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Superior Ct. 225, 236-37, 464 A.2d 1313, 1318-19 (1983)); see also In re Estate of Ellis, 460 Pa. 281, 333 A.2d 728 (1975) (discarding "mutuality of parties" requirement for application of issue preclusion, and adopting the position of Justice (later Chief Justice) Traynor in Bernhard v. Bank of America National Trust and Savings Association, 19 Cal.2d 807, 122 P.2d 892 (1942), that issue preclusion prevents relitigation of an issue where the party against whom it is used or one in privity with that party had a full and fair opportunity to litigate the issue in a prior action).

There is another important distinction between the principles of claim preclusion and issue preclusion. Claim preclusion involves the same claim or cause of action in both the prior and subsequent actions, but issue preclusion operates to prevent relitigation of an issue in a later action based upon a claim or cause of action different from the claim or cause of action previously asserted. McCarthy v. Township of McCandless, 7 Pa.Commonwealth Ct. 611, 619, 300 A.2d 815, 820 (1973); Zarnecki v. Shepegi 367 Pa.Super. at 236, 532 A.2d at 877....