          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Christine Schrader,                   :
                   Petitioner         :
                                      :
            v.                        : No. 812 C.D. 2016
                                      : Submitted: January 2, 2018
Workers’ Compensation Appeal          :
Board (Pocono Medical Center          :
and QUAL-LYNX),                       :
                Respondents           :


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE ELLEN CEISLER, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                              FILED: January 30, 2018


            Christine Schrader (Claimant) petitions for review of the order of the
Workers’ Compensation Appeal Board (Board) affirming the order of a Workers’
Compensation Judge (WCJ) granting Pocono Medical Center and QUAL-LYNX’s
(Employer) termination petition. For the following reasons, we affirm.


            The issue in this case is whether a stipulation made to resolve a
petition to review compensation benefits that contains a materially-incorrect
description of Claimant’s injuries is precluded from being amended when Claimant
was aware that the description was incorrect when she entered into it.
             On September 30, 2006, Claimant sustained a work-related injury. A
supplemental agreement dated May 14, 2007, identified Claimant’s work injury as
a right knee strain/meniscal tear.     The agreement also stated that Employer
recognized Claimant as totally disabled from October 8, 2006, to April 30, 2007,
and compensated her accordingly.         Following her voluntary resignation from
employment with Employer, Claimant’s benefits were suspended.


             Claimant then filed a petition to review compensation benefits
requesting an amendment to the description of her injury to include a meniscal tear
of the right knee. In order to resolve the petition to review compensation benefits,
on January 12, 2009, WCJ Alan Harris adopted a stipulation of the parties
(Stipulation) in which Claimant and Employer agreed that:         “Based upon the
evidence available, the Defendant/Employer and its insurance company agree to
amend the Notice of Compensation Payable in this matter to recognize the work
injury as a meniscal tear in the right knee.”             (Board’s Opinion at 1.)
Additionally, the parties agreed that Claimant’s disability benefits would be
reinstated as of May 1, 2007.


             In July 2014, Employer filed a petition to terminate compensation
benefits with a physician’s affidavit stating that Claimant had fully recovered as of
May 2, 2014, from the accepted work injury, a strain/meniscal tear of the right
knee. Claimant denied the allegations.


             Before the WCJ, Employer offered the deposition testimony of Dr.
David Cooper, M.D. (Dr. Cooper), board certified in orthopedic surgery. Dr.


                                          2
Cooper testified that he reviewed Claimant’s medical records back to 2009. He
noted that a previous MRI indicated a medial meniscus tear, but that in reviewing
Claimant’s records, it had been determined the meniscus was intact. Dr. Cooper
testified that Claimant’s meniscus was normal, there was no evidence she was still
suffering from the right knee strain, and, based only on the accepted work injury,
Claimant could return to work in her full capacity. However, Dr. Cooper also
explained that Claimant still had significant problems with her right knee due to
her anterior cruciate ligament (ACL) reconstruction.


               In opposition, Claimant offered the deposition testimony of Dr.
Maurizio Cibischino, M.D. (Dr. Cibischino), board certified in orthopedic surgery
and Claimant's treating orthopedic physician with regard to her right knee. Dr.
Cibischino testified that after he examined Claimant on December 3, 2006, he
ordered an MRI of Claimant’s right knee which indicated that Claimant had a
partial thickness tearing of her ACL and a possible meniscal tear. He stated that on
January 23, 2007, he performed an arthroscopy which revealed that while there
was a significant injury to Claimant’s ACL, there was no tearing of the medial
meniscus, the accepted work injury. He further testified that to correct the ACL
tear, he performed an endoscopically-assisted ACL reconstruction. Dr. Cibischino
diagnosed Claimant’s original work injury as a significant ACL tear or right knee
sprain.1



       1
           Claimant testified that her injury caused her right knee to lock after prolonged
positioning, she had muscle atrophy in her right leg, she had pain in her right knee that limited
her activities, and she relied on her left leg to compensate for her right leg frequently giving out.



                                                 3
             Concluding that Employer satisfied its burden of demonstrating that
Claimant had fully recovered from the accepted work injury, the WCJ granted
Employer’s termination petition, found Claimant’s testimony regarding her
ongoing knee problems to be credible, and that Dr. Cibischino’s testimony “would
support the argument that the meniscus was never torn and therefore was not, in
fact, repaired.” (Reproduced Record (R.R.) at 17.) However, the WCJ held that he
was unable to amend the description of the work injury to include the ACL injury
because the parties did not reserve this right in the Stipulation. Because both
experts testified that Claimant did not have knee complications due to a torn
meniscus or knee strain in her right knee, the WCJ determined that Claimant had
recovered completely from the accepted work injury.


             Claimant appealed this decision to the Board, arguing, inter alia, that
the WCJ erred in failing to amend the description of Claimant’s work injury to
indicate her ACL tear, as well as contending that Employer’s expert opinion was
equivocal.


             In affirming the decision not to amend the Stipulation, the Board
noted that although Dr. Cibischino performed an arthroscopy which confirmed that
there was significant injury to the ACL, the arthroscopy also confirmed that the
medial meniscus was not torn, though the Stipulation provided that the initial work
injury was a meniscal tear of the right knee.       The Board held, even though
Employer’s expert’s opinion was that Claimant had completely recovered from a
meniscal tear and strain of the right knee, because this addressed the accepted




                                         4
work injury, that Dr. Cooper’s testimony was competent and unequivocal to
support termination of benefits for that injury.


                 As to Claimant’s request to add the ACL tear to the description of her
injury, the Board found that the WCJ properly denied the request. Relying on
Weney v. Workers’ Compensation Appeal Board (Mac Sprinkler Systems, Inc.),
960 A.2d 949 (Pa. Cmwlth. 2008),2 it reasoned that because Claimant was aware of

       2
            In Weney, we set forth the criteria necessary to establish res judicata and collateral
estoppel:

                 “Initially, we note that technical res judicata and collateral estoppel
                 are both encompassed within the parent doctrine of res judicata,
                 which ‘prevents the relitigation of claims and issues in subsequent
                 proceedings.’ Henion [v. Workers’ Compensation Appeal Board
                 (Firpo & Sons, Inc.)], 776 A.2d [362,] 365 [(Pa. Cmwlth. 2001)].

                 Under the doctrine of technical res judicata, often referred to as
                 claim preclusion, ‘when a final judgment on the merits exists, a
                 future suit between the parties on the same cause of action is
                 precluded.’ Id. In order for technical res judicata to apply, there
                 must be: ‘(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.’ Id. at 366. Technical res judicata may be applied
                 to bar ‘claims that were actually litigated as well as those matters
                 that should have been litigated.’ Id. ‘Generally, causes of action
                 are identical when the subject matter and the ultimate issues are
                 the same in both the old and the new proceedings.’ Id.

                 The doctrine of collateral estoppel often referred to as issue
                 preclusion, ‘is designed to prevent relitigation of an issue in a later
                 action, despite the fact that the later action is based on a cause of
                 action different from the one previously litigated.’ Pucci v.
                 Workers’ Compensation Appeal Board (Woodville State Hospital),
                 707 A.2d 646, 647-48 (Pa. Cmwlth. 1998). Collateral estoppel
                 applies where:
(Footnote continued on next page…)
                                                   5
the ACL injury at the time of the Stipulation, Claimant was barred by technical res
judicata from challenging the description of the work injury during the proceedings
on the termination petition. The Board also held that the WCJ did not err in not
amending the Stipulation so long after the accepted work injury occurred when the
parties did not reserve their right to do so. This appeal followed.3


              Claimant argues that the Board and the WCJ erred in determining it
was not able to amend the Stipulation to indicate an ACL tear as her initial work
injury. Citing to our Supreme Court’s decision in Cinram Manufacturing, Inc. v.
Workers’ Compensation Appeal Board (Hill), 975 A.2d 577 (Pa. 2009), she argues
that Section 413(a) of the Workers’ Compensation Act4 (Act) allows a WCJ to



(continued…)


                      (1) the issue decided in the prior case is identical to the one
              presented in the later case; (2) there was a final judgment on the
              merits; (3) the party against whom the doctrine is asserted was a
              party or in privity with the party in the prior case and had a full and
              fair opportunity to litigate the issue; and (4) the determination in
              the prior proceeding was essential to the judgment. Id. at 648.

Weney, 960 A.2d at 954 (emphasis in original).

       3
          “This Court’s review of an order of the Board determines 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.” Walter v.
Workers’ Compensation Appeal Board (Evangelical Community Hospital), 128 A.3d 367, 371
(Pa. Cmwlth. Ct. 2015).

       4
         Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 771. Section 413(a) provides, in
relevant part, as follows:

(Footnote continued on next page…)
                                                 6
change the description of a claimant’s initial work injury to amend a materially-
incorrect description of the injury. Because all the evidence shows that her initial
work injury was actually an ACL tear of the right knee and not a meniscus tear,
Claimant asserts the Stipulation can be amended to include that injury because the
accepted work injuries were materially incorrect.


            Section 413(a) of the Act allows a WCJ to amend a notice of
compensation payable (NCP) or a supplemental agreement that is incorrect in some
material aspect. In Cinram Manufacturing, our Supreme Court elaborated on
Section 413(a) and explained that making this type of “corrective amendment” to
an accepted work injury does not require a review petition. Id. at 580-81. A WCJ
can order the correction where the evidence supports it and the employer is aware
that a corrective amendment is a matter in controversy in the proceeding. Walter v.
Workers’ Compensation Appeal Board (Evangelical Community Hospital), 128
A.3d 367, 372 (Pa. Cmwlth. 2015).




(continued…)

            A workers’ compensation judge of the department 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.

Id.



                                             7
             Not disagreeing that a WCJ may amend a materially-incorrect NCP,
citing to Weney, Employer argues that it cannot be amended here because technical
res judicata bars Claimant from challenging the description of the accepted work
injury contained in the Stipulation as the parties did not reserve the right to later
challenge the description of the injury within the Stipulation.         Because both
medical experts testified that Claimant was fully recovered from the accepted work
injury, Employer asserts the WCJ properly terminated benefits.


             In Weney, the question was whether a claimant was “barred by the
doctrines of technical res judicata and/or collateral estoppel” from seeking to add
additional injuries to an NCP where he and the employer, in a prior petition to
review compensation benefits, filed a stipulation agreeing to amend the claimant’s
NCP to add an additional injury, but the claimant did not seek to include in that
stipulation the injuries at issue in the second petition to review, even though the
claimant knew of those injuries at the time he entered into the stipulation. We
concluded that technical res judicata applied because the subject matter of the
claimant’s first review petition, which was ended by the stipulation adding an
additional injury to his NCP, and the second review petition, in which he sought to
include additional injuries to his NCP, was the “nature and extent of the injuries
that [the c]laimant sustained as a result of the . . . work incident” and “the ultimate
issue in both proceedings was whether the NCP accurately reflected the nature and
extent of [the c]laimant’s injuries.” Weney, 960 A.2d at 955. This Court held that,
although the claimant did not actually litigate the injuries he sought to add in the
second proceeding in the first proceeding, the “record evidence clearly establishes
that he should have done so” because he was aware of those injuries at the time of


                                          8
the first proceeding. Id. at 955-56. We further held that Section 413(a) of the Act,
which provides a WCJ with “the authority to amend [NCPs] that are determined to
be materially incorrect,” must be “applied in a manner that is consistent with the
doctrines of technical res judicata and collateral estoppel.” Id. at 956.


              In this case, while the description of the work injury contained in the
Stipulation may be materially incorrect, under Weney, technical res judicata
precludes Claimant the ability to amend the description of the injuries contained in
the Stipulation. Like in Weney, at the time the Stipulation was entered in January
2009, Claimant did not attempt to correct the description of her work-related injury
to add the ACL injury, even though she knew of that injury at the time the
Stipulation and order adopting the Stipulation were entered. In addition, like in
Weney, the Stipulation, adopted by a WCJ order, involved the nature and extent of
the work injuries which is the same issue involved in her attempt to amend the
description of the injuries.5


              Accordingly, the order of the Board is affirmed.



                                           ___________________________________
                                           DAN PELLEGRINI, Senior Judge




       5
         Claimant also argues that the Board erred in granting Employer’s termination petition
because Employer’s expert gave equivocal medical testimony. However, we reject that
argument as Dr. Cooper testified that Claimant had fully recovered from the meniscus tear
because all the medical evidence now revealed that it was intact.


                                              9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Christine Schrader,                :
                   Petitioner      :
                                   :
            v.                     : No. 812 C.D. 2016
                                   :
Workers’ Compensation Appeal       :
Board (Pocono Medical Center       :
and QUAL-LYNX),                    :
                Respondents        :




                                 ORDER


            AND NOW, this 30th day of January, 2018, the order of the Workers’
Compensation Appeal Board dated May 3, 2016, is affirmed.



                                   ___________________________________
                                   DAN PELLEGRINI, Senior Judge
