This matter is before the court for disposition of defendant’s pretrial motion to preclude plaintiff from offering evidence of disability and financial losses subsequent to the date of a final receipt in a workmen’s compensation proceeding initiated by plaintiff. The in- ' stant action is a personal-injury action initiated by plaintiff for money damages resulting from a vehicle collision. Defendant has raised, by new matter, the contention that plaintiff is barred from offering the aforementioned evidence by the doctrine of collateral estoppel.
It is undisputed that plaintiff obtained workmen’s compensation from his employer, and that on November 15, 1985, plaintiff executed a final receipt. On October 5, 1987, plaintiff filed a petition to set
Defendant cites Shaffer v. Pullman Trailmobile, 368 Pa. Super. 199, 533 A.2d 1023 (1987) .in support of his contention that plaintiff is collaterally estopped by the final receipt and factfinding of the referee from asserting, in the instant litigation, a causal connection between the collision and any disability and economic losses subsequent to the date of the final receipt. Shaffer- was a products-liability action in which an injured worker brought claim against a manufacturer of a chain which broke, causing injury. At the trial, the plaintiff claimed a permanent partial disability resulting from the accident. Previously, the Workmen’s Compensation Appeal Board had denied plaintiffs claim for benefits arising from the accident and found that he was not disabled as a result thereof after July 31, 1980. Despite that decision, the court permitted evidence of disability subsequent to the July 31, 1980 date at. the trial of the products-liability case. Judge Tamilia
A review of the workmen’s compensation decision relied on by defendant reveals that the employer called no witnesses but offered as an exhibit a doctor’s report submitted by a physician retained by the workmen’s compensation insurance carrier to examine plaintiff. The admission of such medical reports is permissible pursuant to a provision of the Workmen’s Compensation Act, 77 P.S. §835. In express reliance on the report, the workmen’s compensation referee denied plaintiffs petition. Plaintiffs counsel had no opportunity to cross-examine the physician because of the provision of the Workmen’s Compensation Act which makes medical reports admissible in certain proceedings. While the legislature has determined that such a procedure is appropriate in the context of a workmen’s compensation proceeding, clearly the report would not be admissible in the instant personal-injury litigation. Thus, we are unwilling to find that plaintiff should be collaterally estopped in the instant case because plaintiff did not have a “full and fair opportunity to litigate the issue” of the extent of his disability. He was not afforded the right of cross-examination of the physician whose report formed the basis of the workmen’s compensation referee’s decision. We decline to attribute collateral-estoppel effect to a fundamental right of cross-examination. Collateral estoppel does not apply to proceedings where unique
ORDER OF COURT
And now, May 12, 1989, defendant’s motion in limine is denied.
One judge concurred in the result and another concurred but declined to join in the discussion of collateral estoppel because it had not been properly raised in new matter.
