T. Nuttall v. City of Chester (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Todd Nuttall, :
Petitioner :
:
v. :
:
City of Chester (Workers’ :
Compensation Appeal Board), : No. 37 C.D. 2022
Respondent : Submitted: February 24, 2023
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: August 8, 2023
Todd Nuttall (Claimant) petitions for review of the December 22, 2021
order of the Workers’ Compensation Appeal Board (Board) affirming the decision
and order of Workers’ Compensation Judge Debra Bowers (WCJ Bowers) that
denied two Petitions to Reinstate Compensation Benefits (collectively, Petitions)
filed by Claimant against the City of Chester (Employer) pursuant to the Workers’
Compensation Act (Act).1 Upon review, we affirm.
This matter was previously before this Court on Claimant’s appeal from
the Board’s affirmance of a different WCJ’s (Previous WCJ) grant of Employer’s
Petition to Suspend Compensation Benefits. See Nuttall v. Workers’ Comp. Appeal
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
Bd. (City of Chester) (Pa. Cmwlth., No. 1428 C.D. 2019, filed May 4, 2020) (Nuttall
I). We detailed at length the pertinent facts and procedural posture underlying the
matter in that opinion as follows:
On February 1, 2010, Claimant, a police officer for
Employer, entered Employer’s Deferred Retirement
Option Plan (DROP) program, which Employer offers to
allow police officers with at least 20 years of service to
continue to work and be paid while also receiving pension
benefits. In brief, while an officer participates in the
DROP program, his or her pension benefits are deposited
in a trust account to which the officer is entitled at the time
of his actual retirement. This Court previously
summarized Employer’s DROP program, which is part of
Employer’s Police Pension Ordinance codified in Article
143 of Employer’s Administrative Code, in Massi v. City
of Chester Aggregated Pension Board (Pa. Cmwlth., No.
1635 C.D. 2017, filed July 17, 2018), wherein the Court
explained:
Section 143.24 of the Ordinance outlines
[Employer’s] []DROP[] program, which is
available to officers with at least 20 years of
service. Under this program, an officer who is
otherwise entitled to retire may enter the DROP
program, continue to work and be paid by
Employer while also receiving his pension
benefits. These pension benefits are deposited into
a trust account which an officer is then entitled to
at the time of his actual retirement. To participate
in the DROP program, officers “shall make an
irrevocable commitment to separate from
[Employer] service as a police officer and retire
upon ceasing participation in the DROP, which
they must do no later than five (5) years after
entering the DROP.” Ordinance Article
143.24(b). The Ordinance also provides that
“[o]nce entering the DROP, the member continues
2
to be a DROP Participant until separation from
[Employer] service as a police officer, at which
point the member is deemed retired.” Ordinance
Article 143.24(j).
Id., slip op. at 4-5. Claimant’s DROP separation date was
January 31, 2015. 2018 WCJ Decision dated July 30, 2018
(2018 WCJ Decision) at 4, Findings of Fact (F.F.) 8(b).
On March 27, 2014, Claimant suffered a work-related
crush injury to his right foot that resulted in a resection
surgery of the right fifth metatarsal bone and then a left
cuboid bone blister from walking with an altered gait
following the surgery. See 2018 WCJ Decision at 3, F.F.
5. Employer accepted the injury as compensable.2 See
2018 WCJ Decision at 3, F.F. 5; see also Board Opinion
dated September 18, 2019 (2019 Board Opinion) at 1.
2
Employer originally accepted the injury as a
“crush injury” to Claimant’s “right [fifth]
proximal phalanx” on which Employer paid 22
weeks of compensation (16 weeks for the loss of
the use of the right toe and a further 6 weeks for
healing time) for “specific loss of right fifth
proximal phalanx. See WCJ Decision dated
December 21, 2015 (2015 WCJ Decision) at 3,
F.F. 1. The injury description was revised as stated
above on December 21, 2015, following
Claimant’s successful Review Petition. See 2018
WCJ Decision at 3, F.F. 5; see also 2015 WCJ
Decision at 10.
On September 12, 2016, Employer filed a modification
petition and a suspension petition, both of which alleged
that Claimant has post-injury self-employment earnings
for which it was entitled to a credit.3 See 2018 WCJ
Decision at 3, F.F. 1; see also Modification Petition dated
September 12, 2016; Suspension Petition dated September
12, 2016.4 At an October 11, 2017 hearing on these
petitions, Employer amended the petitions to include a
3
claim that Claimant voluntarily withdrew from the work
force as a result of his participation in the DROP program,
and a further allegation that it was entitled to a credit
regarding its contribution to Claimant’s pension fund. See
2018 WCJ Decision at 3, F.F. 3; see also 2019 Board
Opinion at 1-2. The original Modification and Suspension
Petitions, together with the amended petitions, are referred
to collectively herein as the Suspension Petition.5
3
Previously, Claimant had filed a Petition for
Review seeking a revised description of the injury
description and a Penalty Petition alleging
Employer had failed to properly mail indemnity
checks to Claimant. See 2015 WCJ Decision. On
December 21, 2015, a workers’ compensation
judge granted the Petition for Review and
dismissed the Penalty Petition. See id. at 10.
Thereafter, Employer filed a Termination Petition
alleging Claimant had fully recovered from his
work injury as of February 10, 2016, which a
different workers’ compensation judge denied and
dismissed by decision rendered March 24, 2017.
See WCJ Decision dated March 24, 2017.
4
Employer filed another combined
Modification/Suspension Petition on December
13, 2016, again alleging its entitlement to a credit
based on Claimant’s post-injury self-employment.
See 2018 WCJ Decision at 3, F.F. 2; see also
Modification/Suspension Petition dated December
13, 2016.
5
Claimant had also filed a Penalty Petition on June
2, 2017, and a Modification Petition on June 22,
2017, both of which were withdrawn at the
October 11, 2017 hearing on Employer’s
Modification and Suspension Petitions. See 2018
WCJ Decision at 3, F.F. 4; see also Penalty
Petition dated June 2, 2017; Modification Petition
dated June 22, 2017.
4
On July 30, 2018, the WCJ issued a decision that
determined Employer had met its burden of proving that
Claimant had voluntarily withdrawn from the work force
as of his DROP retirement date of January 31, 2015. See
2018 WCJ Decision at 8-9, F.F. 16 & Conclusion of Law
(C.L.) 3; see also 2019 Board Opinion at 2. The WCJ
found that, while Claimant did suffer a work injury in
2014, he did not retire in 2015 as a result of this injury. Id.
Instead, the WCJ specifically found that the evidence
established that Claimant retired in January 2015 as a
result of his participation in the DROP program. Id.
Additionally, the WCJ determined that Employer was
entitled to a credit for the 28.7% contribution it had made
to Claimant’s pension fund. See 2018 WCJ Decision at 8-
9, F.F. 17 & C.L. 4; see also 2019 Board Opinion at 2.
Accordingly, the WCJ granted the Suspension Petition in
part6 based on Claimant’s voluntary withdrawal from the
work force and suspended Claimant’s benefits as of
January 31, 2015. See 2018 WCJ Decision at 10, Order;
see also 2019 Board Opinion at 2. The WCJ determined
the remainder of the claims of the Suspension Petition,
including the pension credit, were moot. Id. Claimant
appealed the WCJ’s rulings, and the Board affirmed by
opinion dated September 18, 2019. See generally 2019
Board Opinion. Claimant timely petitioned this Court for
review.
6
The WCJ determined that Employer had failed to
meet its burden of proving an entitlement to a
suspension or modification of Claimant’s benefits
based on income allegedly earned by Claimant
from Widener University between the date he
began receiving workers’ compensation benefits
and January 31, 2015. See 2018 WCJ Decision at
8, C.L. 2.
Nuttall I, slip op. at 1-5 (footnote 7 omitted).
5
On appeal, this Court affirmed the Board, determining that the objective
facts presented in Nuttall I represented substantial evidence to support the Previous
WCJ’s determination that Claimant had voluntarily retired from the work force and
the Board’s affirmance thereof. See Nuttall I, slip op. at 5-10. Claimant did not
request reconsideration or petition the Supreme Court for allowance of appeal.
On July 29, 2020, Claimant filed the instant Petitions, alleging that
Claimant experienced a worsening of his condition as of December 21, 2015, relative
to the March 27, 2014 work injury that was the subject of Nuttall I, and seeking a
reinstatement of Claimant’s benefits.2 See Board Opinion mailed Dec. 22, 2021
(Board Opinion) at 3-4; see also Petitions, Certified Record (C.R.) at 39-44.
Employer filed answers denying the claims of the Petitions and asserting the
affirmative defenses of res judicata and collateral estoppel based on the
determination in Nuttall I that Claimant had voluntarily retired from the work force.
See Board Opinion at 4; see also Answers to Petitions, C.R. at 45-49. On September
2, 2020, Employer also filed a Motion to Dismiss Claimant’s Reinstatement
Petitions (Motion to Dismiss) in which Employer argued that Claimant was barred
from requesting reinstatement of benefits where the Previous WCJ determined in
Nuttall I that Claimant had voluntarily removed himself from the work force by
entering Employer’s DROP program on February 1, 2010, and retiring as of January
31, 2015, in accordance with the terms of the DROP program. See Board Opinion
at 4; see also Motion to Dismiss, C.R. at 50-57.
2
The first of the Petitions seeks a reinstatement of benefits as of December 21, 2015, and
the second of the Petitions seeks a reinstatement of benefits as of January 26, 2017. See Petitions,
Certified Record (C.R.) at 39a & 42a.
6
WCJ Bowers dismissed the Petitions by Decision and Order mailed
April 15, 2021 (WCJ Bowers Decision).3 See Board Opinion at 4; see also WCJ
Decision. WCJ Bowers determined that the Petitions are barred by the doctrine of
res judicata, explaining that
[t]he issue of Claimant’s disability was ruled upon by [the
Previous WCJ] via Decision circulated July 30, 2018, the
record having closed on January 8, 2018. All issues
concerning Claimant’s disability during that time the
record was open should have been raised during this
litigation. Claimant’s assertion that his condition
worsened effective December 31, 2015[,] should have
been raised during this litigation and is therefore
precluded.
WCJ Bowers Decision at 4. Claimant appealed to the Board, which affirmed the
WCJ Bowers Decision by opinion mailed December 22, 2021 (Board Decision),
determining that Claimant’s assertion that his condition had worsened was barred by
the doctrine of collateral estoppel. See Board Decision at 5-7. Claimant timely
appealed to this Court.
On review before this Court,4 Claimant argues that the Board erred by
affirming the WCJ Bowers Decision that dismissed the Petitions on the basis of res
judicata. See Claimant’s Br. at 4, 10-19. We disagree.
3
After the filing of the Motion to Dismiss, WCJ Bowers conducted two brief hearings at
which no evidence was taken, but counsel gave their positions on the implications of the
determination in Nuttall I that Claimant had previously voluntarily removed himself from the work
force by participating in Employer’s DROP program. See Notes of Testimony, September 3, 2020,
Reproduced Record (R.R.) at 58a-68a; Notes of Testimony, December 3, 2020, R.R. at 69a-79a.
4
Our scope of review in a workers’ compensation appeal is limited to determining whether
necessary findings of fact are supported by substantial evidence, whether an error of law was
7
Initially, we observe that “[t]echnical res judicata and collateral
estoppel are both encompassed within the parent doctrine of res judicata, which
‘prevents the relitigation of claims and issues in subsequent proceedings.’” Bd. of
Supervisors of Willistown Twp. v. Main Line Gardens, Inc., 184 A.3d 615, 625 (Pa.
Cmwlth.), appeal denied, 196 A.3d 614 (Pa. 2018) (quoting Weney v. Workers’
Comp. Appeal Bd. (Mac Sprinkler Sys., Inc.), 960 A.2d 949, 954 (Pa. Cmwlth.
2008)).5 Technical res judicata, or claim preclusion, “provides that when a final
judgment on the merits exists, a future suit between the parties on the same cause of
action is precluded.” Henion v. Workers’ Comp. Appeal Bd. (Firpo & Sons, Inc.),
776 A.2d 362, 365 (Pa. Cmwlth. 2001). In such cases, a party is prohibited from
asserting claims that were raised or that could have been raised in the previous
adjudication. Wilkes ex rel. Mason v. Phoenix Home Life Mut. Ins. Co., 902 A.2d
366, 376 (Pa. 2006) (internal citation omitted); see also Henion, 776 A.2d at 365-66(noting that the doctrine of res judicata “applies to claims that were actually litigated
as well as those matters that should have been litigated”). Technical res judicata
operates to preclude a claim where both the previous action and the present action
involve: (1) identity of the thing sued upon or for; (2) identity of the cause of action;
(3) identity of the persons and parties to the action; and (4) identity of the quality or
capacity of the parties suing or sued. Henion, 776 A.2d at 365-66. “Generally,
causes of action are identical when the subject matter and the ultimate issues are the
same in both the old and the new proceedings.” Id.committed, or whether constitutional rights were violated. Henderson v. WP Ventures, Inc.
(Workers’ Comp. Appeal Bd.), 269 A.3d 1272, 1275 n.2 (Pa. Cmwlth. 2022).
5
Res judicata applies to administrative agency determinations. D.Z. v. Bethlehem Area
Sch. Dist., 2 A.3d 742, 749 (Pa. Cmwlth. 2010) (citing Hall v. Pa. Bd. of Prob. & Parole, 733
A.2d 19 (Pa. Cmwlth. 1999)).
8
“A claimant seeking reinstatement of benefits must establish that the
reasons for the suspension no longer exist.” Pucci v. Workers’ Comp. Appeal Bd.
(Woodville State Hosp.), 707 A.2d 646, 648 (Pa. Cmwlth. 1998). “The claimant
must prove that the disability which gave rise to his original claim continues and
that, through no fault of his own, his earning power is again adversely affected by
his work-related injury.” Id. Additionally, where a claimant files a reinstatement
petition in a matter where prior litigation determined that he was not due benefits by
virtue of having voluntarily retired, the burden is on the claimant to prove that his
loss of earning power is no longer due to his voluntary retirement. See id. (affirming
the Board’s denial of a claimant’s second reinstatement petition where the Board
had determined in previous litigation that the claimant had suffered no loss of
earning power due to a work injury where the claimant had already voluntarily
removed himself from the work force).
Here, the Board found that WCJ Bowers did not err by determining that
res judicata precludes Claimant’s assertion that his condition worsened as of
December 21, 2015. See Board Decision at 5-6. The Board explained that
[d]uring the litigation proceedings before [the Previous
WCJ], Claimant had ample opportunity to present
evidence that his March 27, 2014[] work injury resulted in
a disability taking him out of the work force. Any
argument that Claimant’s work-related disability took him
out of the work force involved the same subject matter and
issues as were before [the Previous WCJ] and should have
been raised at that proceeding. However, Claimant failed
to raise that argument at any time during those
proceedings. Instead, [the Previous WCJ] noted that, in
addition to accepting a pension, Claimant had testified in
the termination petition litigation that he did not feel he
was totally disabled, and that he had not applied for any
work. This Board and the Commonwealth Court affirmed
9
[the Previous WCJ’s] finding that Claimant had
voluntarily withdrawn from the work[ ]force. Where
Claimant failed to prove that he was forced to remove
himself from the entire labor market in the prior
proceeding before [the Previous WCJ], he is estopped
from arguing the same in the instant reinstatement
proceeding.
Board Decision at 6 (internal citations omitted).
We agree with the Board’s determination. Res judicata applies to this
matter and precludes Claimant from relitigating the prior determination that his loss
of earning power was due to his voluntary retirement. Claimant had ample
opportunity to present evidence that his condition had worsened and that such
worsening, rather than his voluntary retirement, was the cause of his loss of earning
power during the course of prosecution of the petitions underlying Nuttall I. See
Wilkes; Henion; Pucci. The Board did not err by affirming the WCJ Bowers
Decision disallowing Claimant a second opportunity to do so through the instant
Petitions.
For the above reasons, the Board Decision is affirmed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Todd Nuttall, :
Petitioner :
:
v. :
:
City of Chester (Workers’ :
Compensation Appeal Board), : No. 37 C.D. 2022
Respondent :
ORDER
AND NOW, this 8th day of August, 2023, the December 22, 2021 order
of the Workers’ Compensation Appeal Board is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge