Commonwealth, Department of Corrections v. Workers' Compensation Appeal Board

6 A.3d 603, 2010 Pa. Commw. LEXIS 526

• Court: Commonwealth Court of Pennsylvania
• Decided: October 1, 2010
• Status: Published

Opinions

OPINION BY

Judge LEAVITT.

The Commonwealth of Pennsylvania, Department of Corrections (Department) petitions for review of an adjudication of the Workers’ Compensation Appeal Board (Board) denying the Department’s petition to terminate Brenda Wagner-Stover’s (Claimant) workers’ compensation benefits. In doing so, the Board held that the Workers’ Compensation Judge (WCJ) was free to disregard the adjudication of the Secretary of Corrections that Claimant had fully recovered from her work-related injuries and, thus, was no longer eligible for the benefits provided to prison employees injured on the job by Act 632.¹ Because the Secretary’s adjudication collaterally es-topped the WCJ from finding that Claimant was not fully recovered, we conclude that the Board erred and, thus, reverse.

Factual and Procedural History

Claimant was employed as a canteen manager in the commissary at the State Correctional Institution at Camp Hill when, on October 25, 1989, a prison riot erupted. Claimant was not at work that day. By the next day, when Claimant reported to work, the prisoners had been locked up and were physically incapable of injuring her. They were, however, able to hurl obscenities her way, and they did so. Also on that day, Claimant discovered that her name was on a prisoner “hit list.” These events, according to Claimant, caused her to suffer a psychiatric injury. The Department issued a notice of compensation payable (NCP) accepting liability for Claimant’s work-related post traumatic stress disorder and agreeing to pay Claimant compensation benefits for total disability under Section 306(a)(1) of the Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511(1).² The Department also paid Claimant full salary in accordance with Act 632.³

Claimant returned to work on two occa-. sions. In 1990, Claimant worked at State Police Headquarters, but she left when she learned that inmates appeared in the building from time to time. Beginning in February 1992, Claimant worked for 16 months as a stock clerk in a Department facility until one day an inmate exposed himself to her. Under a supplemental agreement, the Department acknowledged that this incident caused a recurrence of Claimant’s total disability as of June 16, 1993. The agreement also clarified that Claimant was not entitled to collect both her Act 632 and workers’ compensation benefits.⁴

When Claimant refused a job at State Police Headquarters, the Department sought a modification of her disability benefits. The Department also filed a review petition, alleging that Claimant’s ongoing medical treatment was no longer related to the work injury but, rather, related to Claimant’s pre-existing personality disorder. In 1995, the WCJ denied both petitions. The WCJ agreed with the Department’s medical expert, Dr. Gary Glass, that Claimant’s ongoing problems were likely related to her personality disorder, which was not work-related. Nevertheless, the WCJ deferred to the opinion of Dr. Henry Wehman, Claimant’s treating-psychiatrist since 1989, that her post traumatic stress disorder continued to render her not able to work.

Several years later, the Department filed a petition to terminate workers’ compensation benefits as of October 1998, alleging that Claimant had fully recovered from her work injury. In the alternative, the Department requested a suspension of benefits because it had again offered Claimant a job she could perform. On May 25, 2000, the WCJ denied both petitions, concluding that Claimant could not perform the offered job and was not fully recovered from her work injury.

In December 2004, the Department offered Claimant a job as a Clerk I in its Office of Professional Responsibility, where inmates never appeared, at a salary higher than her pre-injury wage. Claimant refused the job.

The Department then instituted an administrative proceeding to terminate Claimant’s Act 682 benefits. The Department asserted that Claimant had recovered from her post traumatic stress disorder and that any remaining problems were related to her personality disorder. The Department assigned an outside hearing examiner to hear the evidence and to recommend an adjudication.

At the hearing, the Department presented the deposition testimony of Larry A. Rotenberg, M.D., who performed an independent medical examination (IME) of Claimant on June 21, 2004. Dr. Roten-berg is a board certified psychiatrist who has long worked with Vietnam veterans afflicted with post traumatic stress disorder. He began this specialty in 1969 as chief of psychiatry at the Army Medical Center in Okinawa. Dr. Rotenberg conducted an extensive psychiatric interview of Claimant; reviewed her psychological test results; and studied her voluminous medical records. Dr. Rotenberg diagnosed Claimant with a personality disorder, with borderline histrionic and narcissistic features, which he found to pre-exist the 1989 work incident at the Camp Hill prison. Observing that Claimant was not exposed to real danger at the prison, Dr. Rotenberg explained that Claimant’s post traumatic stress disorder would have been mild and of short duration, not 15 years. He concluded that Claimant’s ongoing symptoms were attributable to her personality disorder and had nothing to do with the 1989 prison riot. Dr. Rotenberg opined that Claimant was capable of doing the work of the Clerk I position offered by the Department.

Claimant testified that a notice to attend an IME triggers memories of the 1989 work incident and causes her to get physically ill. Her symptoms include nightmares and vomiting.

Claimant also presented the deposition testimony of Henry Wehman, M.D., Ph.D., who has treated Claimant for post traumatic stress disorder since 1989. Dr. Wehman opined that Claimant has not recovered and cannot return to work for the Department, because contact with the Department triggers her symptoms. However, Dr. Wehman conceded that Claimant also displays symptoms of a personality disorder and that she might be able to do the Clerk I job.

The Department’s hearing examiner accepted the testimony of Dr. Rotenberg over that of Dr. Wehman and made the following relevant conclusions:

3. The [Department] has proved by competent and credible evidence that the Claimant is no longer suffering from work related [post traumatic stress disorder], but rather from a personality disorder NOS with borderline histrionic and narcissistic features which is not work related.

6. The Claimant is no longer entitled to Act 632 benefits.

7. The Claimant is now fully recovered from her [post traumatic stress disorder] and is able to return to the Clerk I position at OPR that has been offered to her by the [Department].

Hearing Examiner Opinion, October 28, 2005, at 25, 26; Conclusions of Law 3, 6-7; Reproduced Record at 78a, 79a (R.R-) (emphasis added). The hearing examiner recommended that Claimant’s Act 632 benefits be terminated immediately.

Claimant filed exceptions to the hearing examiner’s proposed report. However, the Secretary of Corrections adopted the hearing examiner’s opinion and terminated Claimant’s Act 632 benefits in an order of February 17, 2006. Claimant appealed, and this Court affirmed. Stover v. Department of Corrections/SCI-Camp Hill, (Pa. Cmwlth., No. 531 C.D.2006, filed September 28, 2006).

The Department then filed a petition with the Bureau of Workers’ Compensation to terminate Claimant’s workers’ compensation benefits. Claimant filed an answer denying that she was fully recovered. She also filed a review petition, seeking to amend the description of her work injury on the 1989 NCP to include temporoman-dibular joint disorder (TMJ). The petitions were heard in one proceeding before the WC J.

In support of its termination petition, the Department offered the Secretary’s adjudication, affirmed by this Court, finding Claimant to be fully recovered from her work-related post traumatic stress disorder as of June 2004. The Department argued that the Secretary’s Act 632 adjudication collaterally estopped Claimant from asserting that she was not fully recovered in the workers’ compensation proceeding. The Department offered no evidence beyond the Secretary’s factual findings.

In opposition to the termination petition, Claimant téstified that she is not fully recovered from her post traumatic stress disorder; that she continues to have nightmares and anxiety; and that she is fearful of chance encounters with former inmates whenever she leaves her home. She continues to see Dr. Wehman and Mr. David Timme, a therapist associated with Dr. Wehman, every two weeks. Claimant reiterated that she does not want to work for the Department or in any position in the criminal justice system.

With respect to her review petition, Claimant testified that whenever she thinks about the prison riot, she clenches her jaw so hard that, on occasion, she has broken teeth. She now wears an appliance to protect her teeth. Claimant has been treated for this problem by Donald D. Dinello, D.M.D., an oral and maxillofacial surgeon, since 1995; she sees him every three months.

Claimant submitted an April 24, 2006, report from Dr. Wehman and Mr. Timme, opining that Claimant was not fully recovered from her post traumatic stress disorder and could not work. She did not present their deposition testimony. Claimant also submitted documentation from Dr. Dinello, stating that he has treated Claimant since February 1995 for TMJ. He attributed the TMJ to her post traumatic stress disorder, explaining that her TMJ is largely psychosomatic. Dr. Dinello opined that until Claimant’s emotional tension stemming from her post traumatic stress disorder is resolved, her TMJ pain will continue.

The WCJ rejected the Department’s argument that the Secretary’s adjudication in the Act 632 proceeding was conclusive on the factual question of whether Claimant was recovered from her work injury. Accordingly, he denied the Department’s termination petition and imposed unreasonable contest attorney’s fees upon the Department for not presenting” evidence in support of its termination petition. Finally, the WCJ granted Claimant’s review petition and added TMJ as a work injury.

On appeal, the Board reversed the unreasonable contest determination because “there is no brightline law as to when collateral estoppel applies” in Act 682 and workers’ compensation proceedings. Board opinion, May 22, 2008, at 14. The Board otherwise affirmed. The Department then petitioned for this Court’s review.⁵

On appeal, the Department raises two issues for our consideration. First, the Department argues that the factual finding in the Act 632 proceeding that Claimant had fully recovered from her work injury was entitled to preclusive effect in the workers’ compensation proceeding. Second, the Department argues that the doctrine of res judicata barred Claimant from pursuing a review petition to add TMJ as a newly discovered work injury.⁶

Collateral Estoppel Effect of Act 632 Adjudication

In its first issue, the Department argues that the Secretary’s finding of full recovery in the Act 632 proceeding collaterally estopped the WCJ from finding that Claimant had not fully recovered. As such, the Department asserts, the WCJ was obligated to grant the Department’s termination petition as a matter of law.

Collateral estoppel, also known as issue preclusion, is designed to prevent relitigation of questions of law or issues of fact that have already been litigated in a court of competent jurisdiction. Plaxton v. Lycoming County Zoning Hearing Board, 986 A.2d 199, 208 (Pa.Cmwlth. 2009). “Collateral estoppel is based on the policy that ‘a losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on an. issue identical in substance to the one he subsequently seeks to raise.’” Id. (quoting McGill v. Southwark Realty Co., 828 A.2d 430, 434 (Pa.Cmwlth.2003)). The doctrine of collateral estoppel applies where the following factors are met:

(1) when the issue in the prior adjudication was identical to one presented in the later action;

(2) when there was a final judgment on the merits;

(3) when the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication;

(4) when the party against whom it is asserted has had a full and fair opportunity to litigate the issue in a prior action;

(5) when the determination in the prior proceeding was essential to the judgment.

Callaghan v. Workers’ Compensation Appeal Board (City of Philadelphia), 750 A.2d 408, 412 (Pa.Cmwlth.2000).

Claimant argues that the Department cannot satisfy two of the above-listed factors. First, she argues that the legal issues in each proceeding were different, not identical. Second, she argues that even were the Court to find the issues to be identical, the hearings are conducted under such different procedures that collateral estoppel cannot be invoked. In other words, Claimant asserts that she did not have a full and fair opportunity to litigate the issue of her full recovery in the Act 632 proceeding.

We begin with a review of Supreme Court precedent on how, and whether, an agency adjudication can be given preclu-sive effect in a subsequent judicial or administrative proceeding. Both parties have focused on this precedent in support of their respective, and directly opposite, positions.

In Rue v. K-Mart Corporation, 552 Pa. 13, 713 A.2d 82 (1998), the employer, K-Mart, dismissed Rue for stealing a bag of potato chips from the store. K-Mart then opposed Rue’s application for unemployment benefits, asserting that her loss of employment had been the result of her willful misconduct, which rendered her ineligible for benefits. The Referee found that Rue did not steal potato chips and awarded her unemployment benefits. Rue then filed a defamation' action, alleging that K-Mart had injured her reputation by telling other employees that she had stolen potato chips, a fact proven false in the unemployment proceeding. The trial court ruled that K-Mart was collaterally estopped from challenging the Referee’s finding that Rue had not stolen a bag of potato chips. The jury awarded Rue approximately $1.5 million, and K-Mart appealed.

The Supreme Court held that the Referee’s findings in the unemployment proceeding were not entitled to preclusive effect in the defamation action. The Court found the issues in both proceedings to be identical, reasoning as follows:

[I]t is an issue of pure fact, concerning whether Rue did or did not steal a bag of potato chips. As such, the differences between the public policies of the Unemployment Compensation Law and the civil action for defamation are not relevant. A fact is a fact, regardless of public policy. Thus, we conclude that the first prong of the collateral estoppel test, identity of issues, is satisfied here.

K-Mart, 552 Pa. at 19, 713 A.2d at 85 (emphasis added). However, it concluded that K-Mart had been denied a fair opportunity to litigate the question of whether Claimant had stolen potato chips, which barred the application of collateral estop-pel. The Supreme Court explained that the casual procedures that govern unemployment compensation hearings are appropriate, given the need to adjudicate promptly in a matter where a small amount of dollars is at risk, i.e., 18 months of unemployment compensation.⁷ However, these casual procedures barred the application of collateral estoppel in the subsequent defamation proceedings. The Supreme Court reasoned that the

substantial procedural and economic disparities between unemployment compensation proceedings and later civil proceedings negate the preclusive effect of a Referee’s factual findings.... Because of the fast and informal nature of the proceedings before the Referee, as well as the negligible economic consequences thereof, we conclude that K-Mart did not have a full and fair opportunity to litigate the issue of whether Rue stole a bag of potato chips.

Id. at 20-21, 713 A.2d at 86.⁸

The other central holding we consider is Cohen v. Workers’ Compensation Appeal Board (City of Philadelphia), 589 Pa. 498, 909 A.2d 1261 (2006). In that case, a Philadelphia police officer, Cohen, was injured on duty, entitling him to compensation under the Workers’ Compensation Act as well as full salary under Philadelphia Civil Service Regulation 32.⁹ Cohen returned to work but sometime later sought reinstatement of his benefits because of pain. The Philadelphia Civil Service Commission denied Cohen’s request for Regulation 32 benefits, finding that he was recovered and able to work full time. In a subsequent workers’ compensation proceeding, the WCJ found just the opposite, ie., that he was totally disabled by his work injury, and reinstated benefits. The City appealed, contending that collateral estoppel barred the WCJ from making findings different from the Commission. The Supreme Court held that collateral estoppel did not bind the WCJ to the Commission’s findings.

The Court found that the Workers’ Compensation Act and Regulation 32 “share an underlying humanitarian objective” in compensating persons injured at work. Cohen, 589 Pa. at 512, 909 A.2d at 1270. However, this common objective was not dispositive of the collateral estop-pel question. As it did in K-Mart, the Court focused on the applicable hearing procedures and on the amount in controversy. Regulation 32 benefits are limited to three years, whereas workers’ compensation benefits may last for a lifetime. The eligibility requirements are likewise different.¹⁰ The Court also found significant differences in the procedures governing each hearing, concluding:

On the procedural side, the Workers’ Compensation Act details extensive procedures for resolving various disputes concerning benefits, see 77 P.S. §§ 701-791, that are lacking under Regulation 32. Thus, although the Commission has tools at its disposal similar to those available to a workers’ compensation judge, such as the power to issue subpoenas, the procedures under Regulation 32 are substantially more ad hoc than those pertaining in the workers’ compensation arena.

Id. at 513, 909 A.2d at 1270. Finally, the Supreme Court observed that the Commission handles a broad range of employment issues, whereas a WCJ decides only workers’ compensation claims. Because of all these differences, the Supreme Court held that the Commission’s adjudication did not have preclusive effect in the subsequent workers’ compensation proceeding, which was governed by “extensive procedures.” Id. at 514, 909 A.2d at 1271.

K-Mart and Cohen teach that an agency adjudication can have preclusive effect in a subsequent administrative or judicial proceeding. It is a simple matter to determine identity of issue, because a “fact is a fact,” regardless of the context in which it is used. With respect to a “full and fair opportunity to litigate,” the task is more complicated, depending, as it does, on the amount in controversy and the procedures applicable to each proceeding.

Finally, we review this Court’s holding in Yonkers v. Donora Borough, 702 A.2d 618 (Pa.Cmwlth.1997). There, the claimant, a police officer, sustained injuries in a work-related automobile accident entitling him to benefits under both the Workers’ Compensation Act and the Heart and Lung Act.¹¹ The borough employer filed a termination petition, which the WCJ granted after finding that the claimant had fully recovered from his injury. Thereafter, the borough terminated the claimant’s Heart and Lung benefits for the reason that the WCJ’s decision was conclusive on the issue of disability. This Court affirmed, holding that a final decision of a WCJ has collateral estoppel effect in a subsequent Heart and Lung Act proceeding.¹² The Department argues that Yonkers provides strong precedent in its favor. We do not disagree, but we will decide this case using the principles established by the Supreme Court in K-Mart and Cohen.

We turn, then, to the first question in dispute, which is whether the issues in the Act 632 termination proceeding were identical to those in the workers’ compensation termination proceeding. The Department describes the dispositive issue as whether Claimant was recovered from her work injury. Claimant argues that the legal issues are different because the Department did not have to prove full recovery to terminate her Act 632 benefits. The Department could have terminated Act 632 benefits simply by showing that it offered her a job she was capable of performing and at no wage loss.¹³

To terminate workers’ compensation benefits, the employer must prove that the claimant’s disability “has ... finally ceased.” See Section 413 of the Workers’ Compensation Act.¹⁴ To terminate Act 632 benefits, the employer must prove that the claimant’s disability “no longer prevents his return as an employee of [the] department.” See Section 1 of Act 632, 61 P.S. § 951.¹⁵ Proof of full recovery satisfies the employer’s burden to show that the “disability has ceased,” in the case of workers’ compensation, or “no longer prevents his return [to work],” in the case of Act 632. See, e.g., Koszowski v. Workmen’s Compensation Appeal Board (Greyhound Lines, Inc.), 141 Pa.Cmwlth.253, 595 A.2d 697, 699 (1991); Mihok v. Department of Public Welfare, 670 A.2d 227 (Pa. Cmwlth.1996). It is true that the Department must also show that it offered the claimant a job at her pre-injury salary before it can terminate Act 632 benefits, but that evidence has nothing to do with the claimant’s ability to work. Here, proof of Claimant’s full recovery proved the end of her work-related disability for purposes of either statute. As our Supreme Court noted, “[a] fact is a fact regardless of public policy.” K-Mart, 552 Pa. at 19, 713 A.2d at 85. In short, the dispositive factual question, full recovery from Claimant’s disability, was identical in each proceeding.¹⁶ It is of no moment that the Department had also to prove that it offered Claimant a job in order to terminate Act 632 benefits.

Next we consider whether Claimant had a full opportunity to litigate the extent of her recovery in the Act 632 proceeding. As established in Cohen, this factor' requires two inquiries: the amount at risk financially and the type of procedural rules governing each proceeding.

Available to Claimant were two acts that compensate employees for a work-related disability.¹⁷ Act 632 is more generous because it provides full salary; workers’ compensation disability is limited to two-thirds of the average weekly wage. Both benefits have a potentially lifetime duration.¹⁸ As this Court has observed, it is logical for the Department to terminate Act 632 benefits first because they are more generous than workers’ compensation benefits. Keith v. Department of Corrections, 695 A.2d 938, 942 (Pa.Cmwlth. 1997). In short, the amount in controversy is comparable: potentially lifetime compensation for lost wages caused by a work injury. This leaves an examination of the procedures applicable to Act 632 proceedings and workers’ compensation proceedings.

Workers’ compensation proceedings are governed by the special rules adopted by the Department of Labor and Industry. Cohen, 589 Pa. at 513-514, 909 A.2d at 1270-1271. Act 632 disputes are resolved in a formal administrative hearing before the Department in accordance with the General Rules of Administrative Practice and Procedure, 1 Pa.Code Part II, §§ 31.1-35.251. The General Rules govern practice and procedure before all Commonwealth agencies except where an “agency has promulgated inconsistent regulations on the same subject.” 1 Pa.Code § 31.1(c). The Department of Labor and Industry has opted out of the General Rules for workers’ compensation litigation.¹⁹

The Department argues that the General Rules provide a litigant even more process than is provided by the specialized rules that govern workers’ compensation proceedings. It notes that Claimant aggressively litigated the termination of her lucrative Act 632 benefits; was represented by counsel; presented medical evidence; testified on her own behalf; filed exceptions to the hearing examiner’s proposed opinion and order; and appealed the Secretary’s decision to this Court. Claimant does not assert that she was denied due process in the Act 632 litigation. She asserts, rather, that because the workers’ compensation system is “unique,” a WCJ can never be bound by the findings of another agency’s adjudication.²⁰ Indeed, she argues that because Commonwealth agencies are charged with the responsibility to implement widely disparate programs and policies, an adjudication of one agency can never have preclusive effect in another agency’s proceeding. She contends that to allow an agency’s adjudication to have pre-clusive effect is to allow one agency to invade another agency’s prerogative to administer its program.

The dissent accepts Claimant’s sweeping proposition that the factual findings of one state agency can never have preclusive effect in a subsequent proceeding before a different agency. The dissent contends that any other holding will allow one agency to usurp the authority of another. This is not so, for several reasons.

First, the factual findings in an agency’s adjudication cannot bind the executive acts of another agency. For example, a WCJ might find that a prison guard fully recovered from a non-disabling injury and on that basis deny the employee’s claim for workers’ compensation. However, the WCJ lacks the power to direct the Secretary of Corrections also to deny Act 632 benefits. The Secretary is free to exercise his executive authority to grant Act 632 benefits notwithstanding the WCJ’s decision. It is only when the Secretary acts in a quasi-adjudicatory capacity that the doctrine of collateral estoppel even becomes operative.

Second, the dissent’s proposition cannot be squared with the Supreme Court’s holding that a “fact is a fact.” K-Mart, 552 Pa. at 19, 713 A.2d at 85. Even so, an established fact does not necessarily dictate the outcome of the second agency’s proceeding. For example, a WCJ’s factual finding of full recovery may be binding in the Department’s Act 632 proceeding, but it does not follow that Act 632 benefits will terminate. This is because a prison employee’s Act 632 benefits cannot be terminated unless the Department also has a job for the employee that pays her pre-injury salary.

Third, the dissent fails to acknowledge that agencies routinely use issue preclusion in administering their programs. For example, agencies use criminal convictions as a basis to deny, suspend or revoke licenses. See Bethea-Tumani v. Bureau of Professional and Occupational Affairs, 993 A.2d 921 (Pa.Cmwlth.2010) (request for a license as a registered nurse denied due to prior convictions for aggravated assault, insurance fraud and conspiracy). They also consider enforcement decisions made by other states. See Khan v. State Board of Auctioneer Examiners, 577 Pa. 166, 842 A.2d 936 (2004) (auctioneers sanctioned in Pennsylvania based on disciplinary actions taken by Virginia, Maine, Texas and Wisconsin).

The dissent’s sweeping proposition that an agency’s adjudication can never have preclusive effect on another agency’s fact finding is out of step with longstanding federal administrative law jurisprudence. See, e.g., Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263 (1940) (adjudication of the National Bituminous Coal Commission that the Sunshine Company produced bituminous coal, not anthracite coal, was binding upon the Internal Revenue Service); Salguero v. City of Clovis, 366 F.3d 1168 (10th Cir.2004) (finding of municipal grievance body precluded a terminated employee from pursuing a Section 1983 action in federal court). Federal collateral estoppel jurisprudence is not limited to adjudicatory findings of federal agencies. The United States Supreme Court has directed that factual findings made in a quasi-adjudicatory proceeding of a state agency will have preclusive effect in a subsequent court action. University of Tennessee v. Elliott, 478 U.S. 788, 798, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986) (holding that a state agency’s adjudication should be given collateral estoppel effect in federal court so long as parties had an adequate opportunity to litigate the facts). Indeed, federal courts use analysis similar to that adopted by the Pennsylvania Supreme Court in K-Mart and Cohen. For example, in Littlejohn v. United States, 321 F.3d 915 (9th Cir.2003), the Department of Veterans Affairs found that the claimant’s disability resulted from negligent care received at a Department hospital; however, the court refused to give those findings preclusive effect in a subsequent tort action because the Department’s proceeding was informal in nature; imposed a low burden of proof on the claimant; involved a relatively small amount of monetary benefits; and the Department had been precluded from developing evidence in opposition to the claimant’s claim.

The dissent acknowledges that adoption of its position would require this Court to overrule its precedent in Yonkers, 702 A.2d 618; in Duvall v. Department of Corrections, 926 A.2d 1220 (Pa.Cmwlth.2007); and in each and every other case in which collateral estoppel was held to apply. More troublesome is the fact that the dissent’s position would require us to disregard the Supreme Court’s holding in K-Mart and in Cohen.21 If the Supreme Court had intended its holding in Cohen to ban issue preclusion between agencies, it would have so stated. Instead, Cohen established an analytical framework for determining when an agency’s adjudication will have preclusive effect in a subsequent agency proceeding or even subsequent judicial proceeding. Under the dissent’s logic, this framework would never be used.

In short, Cohen established that an agency adjudication can, and will, have effect in another agency’s proceeding, or even a judicial proceeding, so long as the amount in controversy is comparable and each proceeding involves procedures sufficiently formal to allow each litigant to develop a complete record on a disputed fact.²² Here, the matter at stake in each proceeding, compensation for a work injury, was virtually without difference, and the procedures applicable to each agency’s hearing were comparable. If anything, the procedures governing an Act 682 proceeding are more “extensive.” Cohen, 589 Pa. at 513, 909 A.2d at 1270. In sum, the issue of Claimant’s full recovery was identical in each proceeding, and Claimant had a full opportunity in the Act 632 hearing to litigate her full recovery.²³ She is not entitled to a second bite at the apple on this question.

Effect of Res Judicata on Expansion of Claimant’s Work Injury

In its second issue, the Department argues that Claimant was barred' by the doctrine of res judicata from adding TMJ to her list of work injuries.²⁴ This is because Claimant had years to seek an amendment to her NCP but did nothing until her Act 632 benefits were terminated. Claimant responds that Section 413 of the Workers’ Compensation Act allows the WCJ to amend the NCP at any time.²⁵

The Department’s res judicata claims are mooted by our decision on the first issue. Claimant was found in the Act 682 proceeding to be fully recovered as of June 21, 2004, and by reason of collateral estop-pel that factual finding is binding on the WCJ. It is too late for the WCJ to amend an NCP in 2006 after Claimant has been found to be fully recovered for her work-related injuries in 2004. The file is closed.

In any case, Dr. Dinello, Claimant’s medical expert, opined that Claimant’s TMJ would last until she recovered from her post traumatic stress disorder. Claimant fully recovered from her post traumatic stress disorder in 2004. Therefore, Dr. Dinello’s opinion is not competent to show that Claimant’s TMJ dysfunction in 2006 is work-related.

Conclusion

Only in our administrative state could an anomalous situation such as this arise. A WCJ, who is an employee of the Department of Labor and Industry, claims the right to disregard the final decision of the secretary of another agency, a cabinet officer. Both agencies are under the direction of the Governor of Pennsylvania. It is a testament to the independence of those employed by Commonwealth agencies to act in a quasi-adjudicatory function that the WCJ refused to defer to a finding of the Secretary of Corrections. However, the WCJ erred. The fact of Claimant’s full recovery from the post-traumatic stress disorder caused by the words and writings of prison inmates was made by the Secretary of Corrections after a full and fair hearing. The fact of her complete recovery' “is a fact” and entitled to be given preclusive effect in the workers’ compensation proceeding.

Accordingly, the Board’s order is reversed.

President Judge LEADBETTER dissents.

ORDER

AND NOW, this 1st day of October, 2010, the order of the Workers’ Compensation Appeal Board dated May 22, 2008, in the above captioned matter is hereby REVERSED, and the workers’ compensation benefits of Brenda Wagner-Stover are terminated as of June 21, 2004.

1 . Act of December 8, 1959, P.L. 1718, No. 632, as amended, 61 P.S. §§ 951-952. In 2009, when its terms were codified into 61 Pa.C.S. § 1101, Act 632 was repealed. Because the present litigation has been governed by Act 632, we will refer to Act 632 throughout this opinion.

2 . For a purely mental work injury, the claimant must prove abnormal working conditions. Working in a correctional facility is inherently dangerous, making it difficult for an employee to prove abnormal working conditions. Cantarella v. Department of Corrections, 835 A.2d 870, 873-874 (Pa.Cmwlth.2003). Had Claimant filed a claim petition, it would have been difficult for her to prove that the events of October 26, 1989, constituted abnormal working conditions.

3 . Section 1 of Act 632 states, in relevant part, as follows:

Any employe of a State penal or correctional institution under the Bureau of Correction or the Department of Justice ... who is injured during the course of his employment by an act of any inmate ... shall be paid, by the Commonwealth of Pennsylvania, his full salary, until the disability arising therefrom no longer prevents his return as an employe of such department, board or institution at a salary equal to that earned by him at the time of his injury.

61 P.S. § 951.

4 .This is mandated by Section 1 of Act 632, which states in relevant part:

During the time salary for such disability shall be paid by the Commonwealth of Pennsylvania any workmen’s compensation received or collected for such period shall be turned over to the Commonwealth....

61 P.S. §951.

5 . This Court’s review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or an error of law was committed. City of Philadelphia v. Workers' Compensation Appeal Board (Brown), 830 A.2d 649, 653 n. 2 (Pa.Cmwlth.2003).

6 . These are questions of law over which our review is plenary. Cohen v. Workers' Compensation Appeal Board (City of Philadelphia), 589 Pa. 498, 504, 909 A.2d 1261, 1265 (2006).

7 . Indeed, our Supreme Court has held that a non-attorney may represent an employer in an unemployment compensation proceeding because such representation does not constitute the practice of law given the informal procedures followed in such proceedings. Harkness v. Unemployment Compensation Board of Review, 591 Pa. 543, 553, 920 A.2d 162, 168 (2007).

8 .This Court reached the same conclusion in Verbilla v. Workmen's Compensation Appeal Board (Schuylkill Nursing Association), 668 A.2d 601 (Pa.Cmwlth.1995) (en banc). There, we held that a finding in an unemployment case that the claimant was not injured by a patient did not preclude a different finding in a workers' compensation proceeding. We explained:

We will not apply issue preclusion in this case because to do so would be to hold, in effect, that Claimant loses both cases based on the finding of an unemployment compensation referee even though significantly different procedures apply and different policies and goals are at stake in the workers’ compensation proceeding. A fresh determination of the factual issue by a Workers’ Compensation Judge is warranted.

Id. at 606.

9 . Regulation 32 is the mechanism by which the City fulfills its obligations under the act commonly known as the Heart and Lung Act, Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637-638. Cohen, 589 Pa. at 500 n. 1, 909 A.2d at 1262 n. 1.

10 . For example, the Court pointed out that Regulation 32 does not require the City to acknowledge and describe the work injury in an NCP, as does the Workers’ Compensation Act. Further, the City may unilaterally stop Regulation 32 benefits. Id. at 506-508, 909 A.2d at 1266-1267.

11 . Section 1 of the Heart and Lung Act provides in relevant part that any police officer, correctional employee or other enumerated employee

who is injured in the performance of his duties ... and by reason thereof is temporarily incapacitated from performing his duties, shall be paid by the Commonwealth of Pennsylvania ... his full rate of salary, as fixed by ordinance or resolution, until the disability arising therefrom has ceased.

53 P.S. § 637.

12 . This Court followed Yonkers in Heath v. Pennsylvania Board of Probation and Parole, 869 A.2d 39 (Pa.Cmwlth.2005), to hold where a WCJ denied a claim petition for workers’ compensation based on a mental injury resulting from abnormal conditions, the claimant was estopped from pursuing benefits under the Heart and Lung Act. Likewise, in Duvall v. Department of Corrections, 926 A.2d 1220 (Pa.Cmwlth.2007), we held that a WCJ's finding that the claimant could work without restrictions precluded a hearing examiner from reinstating Heart and Lung Act benefits based on a finding that she could not return to work.

13 .Claimant argues that the legal issues in each proceeding are different because the Department can terminate Act 632 benefits where (1) a claimant is not fully recovered but has recovered enough to do a light duty job and (2) the Department will pay the claimant his pre-injury salary. It is true that had the Department proved that Claimant was only partially recovered, enough to do a light duty job, that proof would not support a termination of workers’ compensation disability, for which full recovery must be proved. Proof of partial recovery in an Act 632 proceeding might, however, support a modification of a claimant’s workers' compensation disability benefits.

Claimant argues that the Department "chose” the higher factual burden of full recovery in the Act 632 proceeding. To the contrary, the Department made this case because according to the IME of Dr. Rotenberg, Claimant was fully recovered from her post-traumatic stress disorder. Given this IME outcome, the Department had no choice but to prove full recovery.

In short, whether the findings made in an Act 632 proceeding will have preclusive effect in a subsequent workers’ compensation proceeding will depend upon the extent of a claimant’s recovery, i.e., full or partial recovery, and the nature of the Department’s request for relief in the subsequent workers’ compensation proceeding, i.e., termination or modification.

14 . Section 413 of the Workers’ Compensation Act states, in relevant part, that a WCJ may

terminate [disability benefits] ... upon proof that the disability of an injured employe has ... finally ceased.

77 P.S. § 772.

15 . Section 1 of Act 632 provides that an injured employee shall be paid his full salary

until the disability arising therefrom no longer prevents his return as an employe of [the] department ... at a salary equal to that earned by him at the time of his injury.

61 P.S. § 951.

16 . The dissent argues the contrary, citing Hardiman v. Department of Public Welfare, 121 Pa.Cmwlth. 120, 550 A.2d 590 (1988). The question in Hardiman was whether the Department of Public Welfare could set aside an employee's application for Act 632 benefits until such time as the WCJ adjudicated the employee's claim petition. This Court held that the Department of Public Welfare had to decide the Act 632 application, in accordance with its own procedures, one way or the other. By not acting, the Department effected a denial of Act 632 benefits without due process. Harditnan has nothing to do with issue preclusion, and the dissent exaggerates its significance to this case.

17 . The Workers’ Compensation Act provides benefits to injured workers who experience either a temporary or permanent loss of earning power due to the work injury. Durante v. Pennsylvania State Police, 570 Pa. 449, 458, 809 A.2d 369, 375 (2002). The purpose of Act 632 is to ensure employees who work in certain state institutions, considered dangerous, that they will receive their full salary if they are injured by an inmate. Hardiman, 550 A.2d at 595. That way, “the state can more readily attract employees to and keep them in these essential but dangerous jobs.” Id.

18 . The dissent asserts that the amount in controversy in an Act 632 proceeding is substantially less than that at stake under the Workers’ Compensation Act. This is simply incorrect. Both Acts offer potentially lifetime benefits to a disabled employee although the Act 632 benefits are at full salary and disability compensation is less than full salary. In addition, there are a myriad of ways by which workers' compensation benefits can be modified or suspended, such as an impairment rating evaluation or a labor market survey. See Sections 306(a.2) and 306(b) of the Act, 77 P.S. §§ 511.2, 512. By contrast, as long as the employee cannot return to work with the Department, Act 632 benefits continue. In short, contrary to the dissent's assertion, Act 632 exposes the employer to more liability than does the Act.

19 .Section 131.4 of the Special Rules of Administrative Practice and Procedure Before Workers’ Compensation Judges specifies that the "General Rules of Administrative Practice and Procedure are not applicable to activities of and proceedings before [WCJs].” 34 Pa. Code § 131.4.

20 . Claimant argued that the Secretary was collaterally estopped from terminating her Act 632 benefits because a WCJ had previously found her not fully recovered. This Court stated that the Secretary could make different factual findings because the legal issues in Act 632 and workers’ compensation proceedings were different. Stover v. Department of Corrections/SCI-Camp Hill (Pa.Cmwlth., No. 531 C.D.2006, filed September 28, 2006), slip op. at 9. Claimant asserts that this statement is the law of the case. We disagree. The law of the case doctrine only applies to "a second review by an appellate court on another phase of the same case, i.e., a phase that occurs before the case has ended.” Merkel v. Workers’ Compensation Appeal Board (Hofmann Industries), 918 A.2d 190, 194 (Pa. Cmwlth.2007) (emphasis in original). This is a new and separate case to which the law of the case does not apply. Further, an unpublished panel opinion cannot bind an en banc panel of this Court. In any case, this Court rejected Claimant’s collateral estoppel argument in Stover because the Secretary considered the question of Claimant's recovery at a point in time later than that considered by the WCJ. Stover, slip op. at 9.

21 . The dissent begins with the declaration that Cohen requires an affirmance. Cohen requires an examination of the amount in controversy and the procedures used in each agency’s hearing. That examination led to the majority's conclusion that the amount in controversy was almost identical and that the procedures in the Act 632 hearing gave Claimant a full and fair opportunity to litigate full recovery. Contrary to the dissent's claim, Cohen requires a reversal.

22 . In Scierka v. Department of Corrections, 852 A.2d 418 (Pa.Cmwlth.2004), the claimant applied for both workers’ compensation and Act 632 benefits, alleging post traumatic stress disorder. A WCJ granted workers' compensation benefits, and the Secretary denied Act 632 benefits. Without any analysis of the principles of collateral estoppel we stated:

Cantarella controls. The doctrine of collateral estoppel does not preclude the Department from making findings contrary to those made by a WCJ in a collateral workers’ compensation proceeding.

Id. at 422. Likewise,' Cantarella v. Department of Corrections, 835 A.2d 870 (Pa. Cmwlth.2003) also offered no analysis on collateral estoppel.

Neither party cites to Scierka, but the dissent does. Scierka involved a claim petition, and, as such, was governed by different legal standards. To be eligible for Act 632 benefits, the injury must be caused by the act of an inmate; there is no such causation requirement for workers’ compensation. Contrary to the dissent’s assertion, Scierka had nothing to do with full recovery.

23 . Claimant suggests that there is an opportunity for bias in the Act 632 proceedings because the Secretary of Corrections is not disinterested because the benefits come out of his Department's budget. The Supreme Court in Cohen rejected a similar allegation of bias as "bald, unfounded, and [in] conflict with the presumption of regularity that courts generally afford to administrative proceedings.” Cohen, 589 Pa. at 511, 909 A.2d at 1269.

24 . The doctrine of technical res judicata, which like collateral estoppel is also known as issue preclusion, applies when four conditions are present: "(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.” Merkel v. Workers’ Compensation Appeal Board (Hofmann Industries), 918 A.2d 190, 192 (Pa. Cmwlth.2007). The doctrine applies not only to matters that were actually litigated in a prior proceeding, but also to “matters that could have been, or should have been, litigated in [a prior] proceeding.” Id. at 193 (emphasis added).

25 . Section 413 provides in relevant part:

A workers' compensation judge designated by the department may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable ... upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased....

77 P.S. § 772.