            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Peter Modesto,                                 :
                       Petitioner              :
                                               :
               v.                              :
                                               :
Workers’ Compensation Appeal                   :
Board (BARTA),                                 :    No. 1274 C.D. 2018
                Respondent                     :    Submitted: March 15, 2019



BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                             FILED: July 11, 2019


               Peter Modesto (Claimant) petitions for review of the August 22, 2018
order of the Workers’ Compensation Appeal Board (Board) vacating in part and
affirming in part the decision and order of Workers’ Compensation Judge James
Stapleton (WCJ) that denied the Petition to Terminate Compensation Benefits
(Termination Petition) filed by the Berks Area Regional Transportation Authority
(Employer) against Claimant pursuant to the Workers’ Compensation Act (Act).1
We affirm.
               On December 30, 2004, Claimant suffered a work-related back injury
when the bus he was driving in the course of his employment was involved in a


      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
motor vehicle accident. See WCJ Decision Issued August 18, 2017 (WCJ Decision),
Findings of Fact (F.F.) 4. Employer issued a Notice of Compensation Payable
(NCP) that accepted as compensable Claimant’s back strain injury. F.F. 3; Board
Opinion Issued August 22, 2018 (Board Opinion) at 1.
              On May 17, 2006, Claimant underwent a back surgery that included a
laminectomy, discectomy, and fusion at the L4-L5 level of his lumbar spine. F.F.
15(a). Claimant later filed a Petition to Review Compensation Benefits that a
different WCJ granted on November 2, 2007, amending the description of
Claimant’s injury from “back sprain,” as appeared in the NCP, to “cervical strain
and sprain, lumbar strain and sprain, and aggravation of lumbar stenosis at L4-L5,”
thereby encompassing Claimant’s May 2006 back surgery.          WCJ Decision of
November 2, 2007 at 6; F.F. 4.
              On December 31, 2014, Claimant and Employer entered into a
Compromise and Release Agreement (Release Agreement), pursuant to which
Claimant received $44,000.00 in exchange for releasing Employer from future
indemnity and specific loss payments. F.F. 5; Board Decision at 1. Under the
Release Agreement, Employer remained liable for all future reasonable and
necessary medical expenses related to Claimant’s December 30, 2004 work-related
injury. Id.
              On March 16, 2016, Employer filed the Termination Petition alleging
that Claimant had made a full recovery from his December 2004 work-related injury
as of December 21, 2015. F.F. 1; Board Opinion at 1.
              On September 28, 2016, Claimant underwent an additional surgery on
his back that included a revision and extension of his previous L4-L5 spinal fusion




                                        2
to the L3-L4 level of his spine (September 2016 surgery). F.F. 15(d); Board Opinion
at 5.
               On August 18, 2017, the WCJ circulated the WCJ Decision denying the
Termination Petition. See WCJ Decision; Board Opinion at 2. The WCJ Decision
also causally related Claimant’s September 2016 surgery to the December 30, 2004
work injury. See F.F. 15(a); Board Opinion at 2.
               Employer appealed the WCJ Decision to the Board alleging that the
WCJ erred by denying the Termination Petition and alleging that the
September 2016 surgery was not causally related to Claimant’s December 2004
work injury. On August 22, 2018, the Board vacated the WCJ Decision in part and
affirmed it in part. See Board Opinion at 8. Specifically, the Board vacated the WCJ
Decision to the extent it causally related the September 2016 back surgery to the
December 2004 work injury, claiming that the WCJ had improperly implicitly
expanded the description of Claimant’s injury. Id. The Board affirmed the WCJ
Decision in all other aspects, including the WCJ’s denial of the Termination Petition.
Id. Claimant timely petitioned this Court for review.2


        2
         In workers’ compensation appeals, this Court’s “scope of review is limited to determining
whether constitutional rights have been violated, whether an error of law was committed and
whether necessary findings of fact are supported by substantial evidence.” Morocho v. Workers’
Comp. Appeal Bd. (Home Equity Renovations, Inc.), 167 A.3d 855, 858 n.4 (Pa. Cmwlth. 2017)
(citing Johnson v. Workmen’s Comp. Appeal Bd. (Dubois Courier Express), 631 A.2d 693 (Pa.
Cmwlth. 1993)).

                 Substantial evidence is such relevant evidence a reasonable person might
        find sufficient to support the WCJ’s findings. In determining whether a finding of
        fact is supported by substantial evidence, this Court must consider the evidence as
        a whole, view the evidence in a light most favorable to the party who prevailed
        before the WCJ, and draw all reasonable inferences which are deducible from the
        evidence in favor of the prevailing party.
Frog, Switch & Mfg. Co. v. Workers’ Comp. Appeal Bd. (Johnson), 106 A.3d 202, 206 (Pa.
Cmwlth. 2014) (internal quotations and citations omitted).
                                                3
             On appeal, Claimant alleges that the Board erred in vacating the WCJ
Decision to the extent it causally related Claimant’s September 2016 surgery to the
December 2004 work injury. See Claimant’s Brief at 4 & 14-23. Claimant argues
that the Board improperly focused on whether the WCJ implicitly amended the
description of Claimant’s work injury in lieu of determining the matter based solely
on Employer’s burden to adequately prove the claims of its Termination Petition.
Id. at 14-23. Claimant further argues that Employer had a full and fair opportunity
to present evidence that Claimant’s September 2016 surgery was not causally related
to his December 2004 work injury, and that Employer failed to do so. Id. We
disagree.
             In workers’ compensation matters, amendments to the description of
accepted work-related injuries come in two forms, with differing requirements under
the Act to achieve the specific amendment sought. See Cinram Mfg., Inc. v.
Workers’ Comp. Appeal Bd. (Hill), 975 A.2d 577, 580–81 (Pa. 2009). First, an
amendment to correct an inaccuracy in the identification/description of the existing
injury that is recorded in an NCP at the time the NCP issues is known as a “corrective
amendment.” See id. Section 413 of the Act applies to corrective amendments and
provides that:

             A workers’ compensation judge may, at any time, review
             and modify or set aside a notice of compensation payable
             and an original or supplemental agreement or upon
             petition filed by either party with the department, or in the
             course of the proceedings under any petition pending
             before such workers’ compensation judge, if it be proved
             that such notice of compensation payable or agreement
             was in any material respect incorrect.




                                          4
77 P.S. § 771 (emphasis added). Thus, amendments to descriptions of injuries
contained in NCPs that existed at the time the NCP issued may be made in the course
of proceedings under any petition pending before a WCJ. Cinram, 975 A.2d at 581.
               The second type of possible amendment involves changing an NCP to
account for an increase in a claimant’s disability known as a “consequential
condition.” See Cinram, 975 A.2d at 581 n.4. Section 413(a) of the Act controls
amendments pertaining to consequential conditions3 and provides, in pertinent part,
as follows:

               A workers’ compensation judge designated by the
               department may, at any time, modify, reinstate, suspend,
               or terminate a notice of compensation payable, an original
               or supplemental agreement or an award of the department
               or its workers’ compensation judge, 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, or that the
               status of any dependent has changed.

77 P.S. § 772. Thus, unlike corrective amendments that can be made by a WCJ in
the course of any pending workers’ compensation proceeding, an amendment based
on a consequential condition may “be made only upon consideration of a specific
review petition.” Cinram, 975 A.2d at 581. Additionally, the burden rests with
claimants to establish the existence of additional compensable injuries in a review
petition. Id. at 582.
               Here, as part of the Termination Petition proceedings, Employer
presented the testimony and medical reports of Christian I. Fras, M.D., a board-
       3
         In addition to amendments based on increases in disabilities, Section 413(a) also controls
amendments pertaining to decreases, recurrences, or cessation of disabilities. See Cinram, 975
A.2d at 581.

                                                5
certified orthopedic surgeon who conducted an Independent Medical Evaluation
(IME) of Claimant on December 21, 2015. F.F. 6. In the WCJ Decision, the WCJ
provided an extensive and detailed summary of Dr. Fras’s testimony. See WCJ
Decision at 5-7; F.F. 6-11. Notably, the WCJ stated that Dr. Fras testified that he
had discussed the accident and Claimant’s medical treatment with Claimant,
observed and examined Claimant, and reviewed Claimant’s extensive medical
records, which records included, but were not limited to, the operative report from
the surgeon who performed Claimant’s lumbar spinal surgery in May 2006, the
report of Claimant’s April 2013 lumbar spine CT scan, and reports from multiple
MRI studies of Claimant’s lumbar spine conducted in 2014 and 2015. Id. Based on
the above, the WCJ noted that Dr. Fras rendered a clear and unequivocal medical
opinion that Claimant had made a full recovery from the work-related injuries he
suffered in the December 2004 motor vehicle accident. WCJ Decision at 7; F.F. 11.
            Claimant presented his own testimony before the WCJ in opposition to
the Termination Petition. See WCJ Decision at 7; F.F. 12-14. Claimant testified
that, as a result of ongoing issues following his 2006 L4-L5 back fusion, Claimant
underwent the September 2016 surgery, but that he still suffers from constant pain.
WCJ Decision at 7; F.F. 14. Claimant also presented his medical records indicating
that the September 2016 surgery was a “laminectomy at the L3-L4 level of his
lumbar spine and a revision and extension of his [2006] fusion from the L3 level
through the L5 level[.]” WCJ Decision at 7; F.F. 12.
            The WCJ credited the testimony of Claimant and that of Dr. Fras, “but
with the exception of [Dr. Fras’s] medical opinions that as of December 21, 2015,
[C]laimant had made a full recovery from all the work-related injuries that he
sustained as a result of his motor vehicle accident of December 30, 2004, and that


                                        6
[Claimant] did not need any further medical treatment for any of his said work-
related injuries.” WCJ Decision at 8; F.F. 15. In the course of explaining that he
found Dr. Fras’s medical opinion that Claimant had made a full recovery not
credible, the WCJ noted that Dr. Fras testified that Claimant’s third MRI study from
December 2015 revealed “that [C]laimant had developed moderate stenosis of his
central canal and a moderate sized right posterolateral herniated disc at the adjacent
L3-L4 level of the lumbar spine.” WCJ Decision at 8, F.F. 15(c). The WCJ then
went on to state:

             On September 28, 2016, [C]laimant underwent additional
             surgery upon his lumbar spine that included a revision and
             extension of his fusion at the L4-L5 level of his lumbar
             spine. Based upon the evidence that has been presented in
             this matter concerning that surgery, this Judge considers
             that surgery to be related in part to [C]laimant’s work-
             related injuries, and to his previous surgery upon the
             lumbar spine.

WCJ Decision at 8, F.F. 15(d). Based on this statement in the WCJ Decision, the
Board concluded that the WCJ “implicitly added consequential conditions, a right-
sided herniation and moderate stenosis of L3-[L]4, to the description of injury.”
Board Opinion at 5-6.
             We agree with the Board’s assessment that the WCJ’s statement
implicitly added consequential conditions to the description of Claimant’s December
2004 work injury. As discussed supra, the addition of such consequential conditions
to the description of an original work-related injury requires a claimant to file, and
a WCJ to approve, a review petition in which the claimant establishes all the
elements necessary to support an award of workers’ compensation benefits with
respect to claimed consequential conditions. See 77 P.S. § 772; Cinram. Despite

                                          7
having filed a review petition following his May 2006 surgery, Claimant did not file
a review petition after the September 2016 surgery. Additionally, neither Claimant’s
testimony nor the medical records of his treating physician provided unequivocal
medical evidence that the issues at Claimant’s L3-L4 level lumbar spine that were
addressed in the September 2016 surgery were causally related to Claimant’s
original December 2004 work injury. Thus, while the September 2016 revision and
expansion of his spinal fusion to the L3-L4 level of his lumbar spine may be related
to. Claimant’s December 2004 work injury, the WCJ erred in expanding the
description of that work injury in the absence of a review petition and medical
evidence unequivocally linking the increasing pathology of the December 2004
incident to the continued medical treatment, specifically Claimant’s September 2016
surgery.
             We find unconvincing Claimant’s argument that the Board misapplied
the appropriate burden of proof in the Termination Petition matter or rejected the
WCJ’s credibility determinations to improperly focus on the WCJ’s implicit
amendment of the December 2004 work injury. See Claimant’s Brief at 15-19.
Claimant’s obligation to file and prove the allegations of a review petition to expand
his injury is independent of Employer’s obligation to prove the Termination Petition,
which, we note, the WCJ denied and the Board affirmed.
             Claimant’s argument that the WCJ Decision did not implicitly amend
the description of his work injury because the WCJ did not make an express finding
that Claimant sustained a new injury is likewise unpersuasive. See Claimant’s Brief
at 19. As previously discussed, the WCJ Decision expanded the scope of the original
December 2004 injury, which, per the 2007 WCJ decision, included stenosis at the
L4-L5 level of the spine, to include stenosis located at the L3-L4 level of Claimant’s


                                          8
spine. WCJ Decision at 8; F.F. 15(d). As discussed supra, such an expansion of the
scope of Claimant’s original work injury to include damage to Claimant’s L3-L4
level as a consequential condition requires the filing of a review petition. See
Cinram; 77 P.S. § 772. The lack of a WCJ finding that Claimant suffered a new
injury is immaterial to the injury in question.
               Because Claimant did not file a review petition and support the
expansion of the description of the December 2004 work injury to his L3-L4 lumbar
spine through the presentation of unequivocal medical evidence, the Board did not
err in vacating the portion of the WCJ Decision that causally related the September
2016 surgery to Claimant’s December 2004 work-related injury.
               Accordingly, the Board’s order is affirmed.4




                                              __________________________________
                                              CHRISTINE FIZZANO CANNON, Judge




       4
          As Claimant notes, he is still within the period in which he might file a review petition.
See Claimant’s Brief at 23. Thus, to the extent Claimant argues this Court should remand the
matter to allow Claimant an opportunity to put forth evidence that the September 2016 surgery
was causally related to the December 2004 work injury, see Claimant’s Brief at 23, as discussed
herein, the proper procedure to so expand the definition of Claimant’s injury lies with the filing of
a review petition. See Cinram, 975 A.2d at 581-82; 77 P.S. § 772.
                                                 9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Peter Modesto,                       :
                 Petitioner          :
                                     :
           v.                        :
                                     :
Workers’ Compensation Appeal         :
Board (BARTA),                       :   No. 1274 C.D. 2018
                Respondent           :




                                ORDER


           AND NOW, this 11th day of July, 2019, the August 22, 2018 order of
the Workers’ Compensation Appeal Board is AFFIRMED.




                                   __________________________________
                                   CHRISTINE FIZZANO CANNON, Judge
