Commonwealth Court Allows Second Review Petition, Rejects Res Judicata Defense on Psychological Injury Claim

The Commonwealth Court has found that serial Petitions to Review may be permitted to add injuries, if they are of a different nature and even if the symptoms existed at the time a prior Petition to Review was litigated. 

In this case, the claimant, a police officer, sustained physical work injuries in 2017 while attempting to subdue a burglary suspect. In 2021, he filed a Petition to Review, seeking to add concussion and concussion-related symptoms. The parties entered into a Stipulation agreeing to expand the injuries to include concussion, headaches, balance issues and vision issues. The Stipulation included language stating that the parties would not be prevented from filing future petitions in accordance with the Act.

Months later, in September 2021, the claimant filed another Petition to Review, to add a psychological injury. The employer defended that petition on the basis that it was barred by the doctrine of res judicata and collateral estoppel. The employer argued, at the time the claimant’s first review petition was filed, he was seeking psychiatric treatment and he should have sought to include a psychiatric injury at the time of that petition. According to the employer, because he did not, he was precluded from seeking to add a psychiatric condition in the second review petition.

The workers’ compensation judge granted the petition, and the employer appealed to the Workers’ Compensation Appeal Board. The Board reversed on the basis that the claimant was aware of his psychological symptoms at the time of the first review petition and chose not to raise it at that time. 

In his appeal to the Commonwealth Court, the claimant argued that the second review petition dealt with new issues and he was not precluded from pursuing the second review petition. He further argued that the Stipulation on the first review petition expressly allowed new petitions in the future. The court agreed and reversed the Board’s decision. According to the court, although the claimant and his treating provider both acknowledged he was diagnosed with depression before the first review petition was filed, neither testified the claimant was aware that his depression was a compensable work injury at the time of that petition. The court said there was no firm evidence the claimant was aware before filing the second review petition that his psychological symptoms were related to the work incident and potentially compensable. Thus, the court held that review petition number two was not subject to technical res judicata, and they reversed the Board. 

_{What’s Hot in Workers’ Comp, Vol. 29, No. 9, September 2025, 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 © 2025 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.}