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

• Decision Date: 11 January 1994
• Citation: 632 A.2d 1302,534 Pa. 327
• Parties: Thomas HEBDEN, Appellant, v. WORKMEN'S COMPENSATION APPEAL BOARD (BETHENERGY MINES, INC.), Appellee.
• Court: Pennsylvania Supreme Court

Page 1302

632 A.2d 1302

534 Pa. 327

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

Supreme Court of Pennsylvania.

Argued March 10, 1993.

Decided Nov. 12, 1993.

Reargument Denied Jan. 11, 1994.

Blair V. Pawlowski, Pawlowski, Creany, Tulowitzki, Bilonick & Walter, Ebensburg, for appellant.

John J. Bagnato, Spence, Custer, Saylor, Wolfe & Rose, Johnstown, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY and MONTEMURO, JJ.

OPINION OF THE COURT

PAPADAKOS, Justice.

Appellant, Thomas Hebden, a coal miner for over thirty years, was awarded workmen's compensation partial disability benefits for an occupationally acquired pulmonary lung disease (coal worker's pneumoconiosis) by order of a referee dated July 19, 1985. Effective as of August 25, 1983, Appellant was ordered to receive $227.40 per week as compensation. Neither Appellant nor his employer appealed this award. It thereby became a final determination not subject to future attack collaterally or by relitigation. On October 30, 1987, the employer (Bethenergy Mines, Inc.) filed a petition for modification--treated as a petition to terminate--alleging that Appellant's disability had changed and that he was no longer disabled from occupational pulmonary disease. The matter came before a new referee who conducted several hearings. At a hearing on March 9, 1988, Dr. George W. Ketter testified on behalf of the employer. On August 3, 1988, Dr. Robert K. Klemens testified on behalf of Appellant.

When Dr. Ketter testified, he expressed the opinion that Appellant had neither pneumoconiosis nor any impairment as a result thereby. On cross-examination, Dr. Ketter admitted that if Appellant had no pneumoconiosis in 1988, then he would not have had it in 1983 either (R., 23a). The employer also offered the testimony of Dr. Robert G. Pickerill by way of deposition. Dr. Pickerill also contended that Appellant did not have pneumoconiosis, but stated the opinion that Appellant had a mild functional respiratory impairment due to chronic bronchial asthma, a non-occupational condition. This was, in effect, an opening of the original, unappealed determination that Appellant suffered from work-related pneumoconiosis and, thus, constituted impermissible relitigation.

Appellant was deemed by these two doctors to be fit to return to work at his last job as a shuttle car operator in the mines. The employer further offered medical evidence by way of a written report of Dr. Gregory Fino. Dr. Fino concluded that even if Appellant was disabled in 1983, he was not disabled currently (R., 142a). Dr. Fino also concluded that Appellant was suffering from non-occupational bronchial asthma and that he was fit to return to work.

Appellant's medical witness, Dr. Robert F. Klemens, testified to the contrary that he had examined Appellant in October, 1987, and that Appellant continued to suffer from pneumoconiosis, that he remained partially disabled and was unable to return to work. The only evidence in the record dealing with the reversibility of pneumoconiosis was offered by Dr. Klemens. He clearly testified that once a person has pneumoconiosis, he has it for the rest of his life and that once he has that disability, he cannot recover from it. Moreover, the disease is a progressive disorder and only tends to get worse with time (R., 30a-31).

The referee resolved the conflict in the medical evidence in favor of the employer finding that Appellant's disability has ceased to exist. She held that Appellant was neither partially nor totally disabled as a result of coal worker's pneumoconiosis nor any occupationally acquired lung disease. She adopted the opinion of the employer's doctors holding that Appellant suffered from a non-occupational disease, bronchial asthma. She ordered that Appellant's benefits should cease and terminate, and she specifically found that there was no res judicata issue in the case (R., 46a), because the prior award of benefits merely addressed Appellant's disability status at an earlier and different point in time. The Workmen's Compensation Appeal Board affirmed the holding that the employer had sustained its burden of proof on the medical issues. The Commonwealth Court, en banc, also affirmed in an opinion by Judge Robert L. Byer, 142 Pa.Cmwlth. 176, 597 A.2d 182. We granted Appellant's petition for review because we were alarmed by the decision's revisitation and reopening of a disability issue that had long been settled. If such issues can be retried at will, the statutory system of workmen's compensation would be seriously undermined. Our alarm was well founded, and for the reasons set forth below, we reverse.

The Commonwealth Court's decision is centered on a lengthy and erudite discussion of the doctrine of res judicata. We acknowledge that the term "res judicata" is a somewhat sloppy term and that it is sometimes used to cover both res judicata itself (claim preclusion) as well as collateral estoppel ("broad" res judicata or issue preclusion). Collateral estoppel, broad res judicata or issue preclusion "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 of Pittsburgh, 522 Pa. 44, 55, 559 A.2d 896, 901 (1989). It is admitted in the Commonwealth Court opinion itself that res judicata or issue preclusion prevents an employer from relitigating, by way of a petition to modify or terminate benefits, the original medical diagnosis underlying...