Thought Leadership

The claimant sustained a work injury in 1982, and because of its age and the time that had passed from prior litigation, no documentation existed about the claim. However, a 1995 Commonwealth Court decision affirmed the Workers’ Compensation Appeal Board’s dismissal of a February 19, 1993, appeal, filed by the claimant of a 1988 decision, granting the employer’s petition requesting a suspension of benefits. The prior litigation involved claim, review, suspension and termination petitions, and a Workers’ Compensation Referee granted the employer’s suspension and termination petitions as of August 16, 1983. Initially, the claimant filed a timely appeal of the referee’s 1988 decision, but that appeal was withdrawn. In 1993, the claimant refiled the appeal, nunc pro tunc, alleging fraud. The Appeal Board dismissed the claimant’s appeal, which the Commonwealth Court affirmed.

Then, on November 3, 2018, the claimant again appealed the referee’s 1988 decision, again alleging fraud. The Appeal Board dismissed the claimant’s appeal, and the claimant appealed to the Commonwealth court. Additionally, on February 13, 2021, the claimant filed a new claim petition, alleging occupational disease injuries associated with work exposure to chemicals beginning March 2, 1982. He requested total disability from March 2, 1982, through January 1, 1998, and ongoing partial benefits. This petition was dismissed by the Workers’ Compensation Judge, with prejudice, based on the doctrines of res judicata and collateral estoppel. The claimant appealed to the Appeal Board, and the Appeal Board affirmed.

At the Commonwealth Court level, the claimant said that res judicata and collateral estoppel did not apply because his porphyria, which he claimed was caused by the work injury, was an occupational disease, not an injury. The court noted that they have repeatedly held that, due to the progressive nature of the debilitating effects of an occupational disease, a claimant who has not prevailed in a prior petition seeking total disability is not barred by res judicata from refiling a claim in an attempt to prove disability on a later date. In the 2021 claim petition, his work-related injury occurred on March 2, 1982—the same injury date—and involved the same incident addressed in the referee’s prior decision for which the claimant received benefits and from which the referee found that the claimant had fully recovered. Both the decision and the 2021 claim petition listed the claimant’s disability as beginning on March 2, 1982. According to the court, the subject matter in the referee’s decision and the action before them was identical, with the ultimate issue being whether the claimant was disabled within the meaning of the Act at the time alleged in the petition. In the referee’s prior decision, he concluded that the claimant had fully recovered from the March 2, 1982, work injury and terminated the claimant’s benefits effective August 16, 1983. The claimant’s work injury and his recovery were actually litigated previously and therefore the Commonwealth Court held that the dismissal of the claimant’s 2021 claim petition by the Workers’ Compensation Judge and the Appeal Board was proper.

_{What’s Hot in Workers’ Comp, Vol. 27, No. 10, October 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}