           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Samuel Friday,                         :
                        Petitioner     :
                                       :
           v.                          :    No. 559 C.D. 2015
                                       :    No. 560 C.D. 2015
Workers’ Compensation Appeal           :    Submitted: October 23, 2015
Board (Pennsylvania State University), :
                        Respondent :


BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                            FILED: January 11, 2016



            Petitioner Samuel Friday (Claimant) petitions for review of an order
of the Workers’ Compensation Appeal Board (Board), in which the Board,
reversing a Workers’ Compensation Judge (WCJ) decision, held, inter alia, that
Claimant’s effort to amend the description of his work injury to include depression
and anxiety was untimely. We now affirm the Board’s order.
            Claimant sustained an injury to his back in 1988 when he fell
approximately thirty feet during the course of his employment. The Notice of
Compensation Payable (NCP) at that time described Claimant’s injury as a lumbar
strain/sprain. Claimant later had surgeries to treat his back condition. In 1998,
Claimant, Employer, and Employer’s insurer, PMA Management Company,
entered into a compromise and release agreement. The parties submitted a petition
seeking approval of the agreement, which a WCJ granted. (Reproduced Record
(R.R.) at 43a-51a.) The agreement disposed of all indemnity claims (R.R. at 47a),
but it also provided that, after the date of the agreement, Employer would pay for
all reasonable and necessary medical treatment “causally related” to Claimant’s
1988 work-related injury. (R.R. at 48a.)
              In July 2012, Lawrence Leventhal, M.D., issued a utilization report
(UR), reviewing the reasonableness and necessity of medications prescribed for
Claimant by his treating physician, Jerome DeJulia, M.D. Dr. Leventhal’s report
found prospective treatment with the following medications to be reasonable and
necessary:     Soma, Compazine, Amaryl, Thermacare wraps, Percocet, Xanax,
Paroxetine, Gabapentin, Nexium, Meloxicam, and Viagra. (Claimant’s Ex. C-1.)
On September 4, 2012, Employer filed a petition for review of the UR
determination regarding the following medications:                Paroxetine, Alprozolam,
Thermacare wraps, Viagra, Oxycodone, Meloxicam, and Nexium.1 (R.R. at 8a.)
On December 26, 2012, Employer filed a medical review petition, asserting that
the following medications were not related to Claimant’s work injury: Soma,
Compazine, Amaryl, Percocet, Xanax, Paroxetine, Gabapentin, Nexium,
Meloxicam, and Viagra. (R.R. at 12a.) On August 16, 2013, Claimant filed a


       1
          Alprozolam and Oxycodone were not specifically listed on Dr. Leventhal’s UR
determination as medications that he found to be reasonable and necessary for Claimant’s
prospective treatment. We note, however, that Alprazolam is also known as Xanax, which was
listed on Dr. Leventhal’s UR determination. (See WCJ’s opinion, attached to Petitioner’s Br. at
A-3, Finding of Fact (F.F.) No. 7.) Furthermore, while Oxycodone also was not listed, we note
that Percocet was listed on the UR determination. “Percocet contains a combination of
acetaminophen and oxycodone.” http://drugs.com/percocet.html (Last visited January 5, 2016.)
The question of whether Oxycodone and Percocet are reasonable and necessary for Claimant’s
prospective treatment is not before the Court.



                                              2
review petition, seeking to add to his identified work-related injuries the following
conditions: failed low back syndrome and status post two laminectomies with
fusion, secondary to marked spondylolisthesis at L5-S1, and depression and
anxiety.
              Following consolidated hearings, the WCJ determined, in part, that
Claimant met his burden to prove that the NCP should be amended to include
depression and anxiety as part of the description of his work-related injury,
because the WCJ found those injuries to have arisen from the chronic pain
syndrome caused by Claimant’s initial work-related back injury. The WCJ also
determined that Dr. DeJulia’s prescriptions for Xanax and Paroxetine/Paxil are
reasonable and necessary to treat Claimant’s depression and anxiety.
              Employer appealed to the Board from the WCJ’s decisions,2 raising
the primary question of whether the WCJ erred in dismissing Employer’s medical
review petition as it pertained to the Xanax and Paroxetine/Paxil that Dr. DeJulia
prescribed, based upon the contention that those medications relate to the
diagnoses of depression and anxiety. Employer asserted that the three-year statute
of limitations contained in Section 413(a) of the Workers’ Compensation Act




       2
          Procedurally, the WCJ indicated that he would address: (1) Employer’s petition to
review the UR and its medical review petition (Docket No. A14-0065); and (2) Claimant’s
review petition (Docket No. A14-0070) as consolidated matters. (September 18, 2013 Hr’g Tr.
at 8.) Apparently, the WCJ did not formally consolidate Employer’s petitions and Claimant’s
review petition but rather treated them as distinct matters, issuing two identical decisions.
Employer appealed from both of those decisions, and the Board likewise issued two identical
decisions and orders. Thereafter, Claimant filed the two identical petitions for review that are
before this Court.



                                               3
(Act)3 precluded the WCJ’s expansion of Claimant’s work-related injury to include
depression and anxiety.
               The Board reversed the WCJ’s decision with regard to the expansion
of Claimant’s work-related injuries to include depression and anxiety. The Board
agreed with Employer’s argument that Claimant’s review petition was untimely
under Section 413(a) of the Act. Based upon that conclusion, the Board also held
that Employer is not responsible to pay for Claimant’s Xanax or Paroxetine/Paxil
medications.
               Claimant petitions for review of the Board’s orders,4 raising the sole
issue of whether the Board erred in concluding that Section 413(a) of the Act
precludes him from seeking to expand the description of his work-related injury
when he stopped receiving indemnity compensation for his original back injury
based upon his compromise and release agreement, but he continued to receive
medical benefits for treatment causally related to his 1988 work injury. In support
of his claim of error, he presents the following arguments: (1) the compromise and
release agreement did not alter Employer’s duty to pay for medical costs associated

       3
         Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772. Section 413(a) of the Act
provides, in pertinent part, as follows:
               A workers’ compensation judge . . . may, at any time, modify . . . a[n
       NCP], an original or supplemental agreement or an award of . . . [a WCJ], upon
       petition filed by either party . . . upon proof that the disability of an injured
       employe has increased . . . . Such modification . . . shall be made as of the date
       upon which it is shown that the disability of the injured employe has
       increased . . . : Provided, That . . . no [NCP] . . . shall be . . . modified . . . unless a
       petition is filed . . . within three years after the date of the most recent payment of
       compensation made prior to the filing of such petition.
       4
         Our review in this case is limited to considering whether the Board erred as a matter of
law in reversing the WCJ’s decision. 2 Pa. C.S. § 704.



                                                    4
with Claimant’s 1988 work injury, which, Claimant contends, includes the
treatment for his depression and anxiety; (2) the payment of medical benefits
constitutes the payment of “compensation” for purposes of Section 413(a) of the
Act, and, therefore, Employer’s payment for the treatment of his depression and
anxiety tolled the statute of limitations period contained in Section 413(a); (3) the
Board erroneously ignored the WCJ’s finding that depression and anxiety are
“integral” parts of chronic pain syndrome, a condition that the WCJ found to have
been caused by Claimant’s identified work injury and which the WCJ included in
the amended description of Claimant’s injuries;5 and (4) the Board’s decision
violates the terms of the compromise and release agreement, which, as we noted
above, provides for continued payment of medical benefits for treatment causally
related to the 1988 work injury.
             Before considering the questions presented, we note the following
significant facts regarding the timing of the diagnosis of Claimant’s depression and
anxiety and Dr. DeJulia’s treatment of those conditions. Claimant signed the
compromise and release in February 1998, and the WCJ issued his decision
approving the agreement on the same day. Claimant did not begin to see Dr.
DeJulia until approximately January 2002. In his testimony, Dr. DeJulia stated that
Claimant experienced depression “early in the course of my treatment” and that he
began to prescribe medications for those conditions “within a few years of the
initiation” of his therapy.        (Supplemental Reproduced Record (S.R.R.)
at 26b; 41b.) In other words, more than three years elapsed following the approval


      5
        As the Board noted, Employer did not challenge the WCJ’s amendments to the NCP
except with regard to Claimant’s depression and anxiety.



                                          5
of the agreement ending Employer’s indemnity liability and the time Dr. DeJulia
began to prescribe Xanax and Paroxetine/Paxil to treat Claimant’s depression and
anxiety.     The record contains no indication that Claimant had received such
treatment before he signed the agreement to end indemnity benefits.
               Beginning with Claimant’s first two arguments, we note that they
parallel the questions that were raised in our Supreme Court’s decision in
Westinghouse Electric Corporation/CBS v. Workers’ Compensation Appeal Board
(Korach), 883 A.2d 579 (Pa. 2005) (Westinghouse). In Westinghouse, the claimant
sustained a work-related injury in 1979 that the NCP identified as a back sprain,
and he began to receive total disability benefits. The claimant and his employer
entered into a supplemental agreement five years later, reducing the claimant’s
compensation benefits from total to partial disability. Thereafter, the claimant and
the employer commuted the partial disability benefits to a $77,000 lump sum
payment,       and    the    employer      remained       liable   for   medical   benefits.
From 1989 through 1998, the employer paid the costs of the claimant’s psychiatric
treatment, but it ceased making those payments when, following a review of
records, the employer realized that the NCP did not include any psychiatric
condition.     In 1998, the claimant filed a claim petition, seeking to add his
psychiatric condition, claiming that his 1979 back injury caused his psychiatric
condition. The employer’s answer asserted that the claimant should have filed his
claim as a petition to review the NCP, but that, even if the claimant had done so,
both Sections 3156 and 413 of the Act barred the petition as untimely.



      6
          Section 315 of the Act, as amended, 77 P.S. § 602.



                                                6
               In Westinghouse, the Supreme Court observed that the statute of
repose contained in Section 315 of the Act bars the filing of a new claim by a
claimant and the statute of limitations contained in Section 413 bars amendments
to claims that have been filed previously. The Supreme Court opined that “Section
413(a) of the Act provides the appropriate procedure to amend an NCP to add
related injuries,” Westinghouse, 883 A.2d at 589, and concluded that Section
413(a) of the Act was the applicable section in that case because the claimant
alleged that his psychiatric condition was a direct result of his original back injury.
Similarly, in this matter, Claimant is seeking to amend the original NCP to include
mental injuries that arose as a result of his original injury. Thus, there is no doubt
in this case that Claimant correctly filed a review petition to amend the original
NCP in accordance with Section 413(a) of the Act.
               Based upon the holding in Westinghouse and this Court’s more recent
decision in Seekford v. Workers’ Compensation Appeal Board (R.P.M.
Erectors), 909 A.2d 421 (Pa. Cmwlth. 2006), we reject Claimant’s argument that
the compromise and release imposed upon Employer a responsibility to pay for the
treatment of Claimant’s depression and anxiety.7 Although Westinghouse and
Seekford involved commutations of partial disability benefits, the holdings in those
cases are equally applicable to the compromise and release agreement which
resolved Employer’s liability for the payment of disability benefits.



       7
          In Seekford, we rejected a claimant’s argument that, because his alleged injury arose
from his original injury and the employer paid for medical treatment of the related injury, the
commutation of his partial disability benefits did not trigger the running of the three-year statute
of limitations under Section 413(a) of the Act.



                                                 7
                Also, despite the clear holding in Westinghouse, explaining the
distinction between a statute of repose and a statute of limitation, Claimant,
nonetheless, argues that the Court should conclude that Employer’s payment of
medical benefits tolls the running of Section 413(a)’s statute of limitations.8
Claimant’s argument that medical payments constitute “compensation” for the
purpose of the statute of limitations in Section 413(a) of the Act conflicts with the
settled law of the Commonwealth that medical payments only constitute a type of
compensation for the purpose of tolling the statute of repose in a matter arising
under Section 315 of the Act, but they do not constitute “compensation” for the
purpose of the statute of limitation in Section 413(a) of the Act. Westinghouse,
838 A.2d at 591; Riggle v. Workers’ Comp. Appeal Bd. (Precision Marshall Steel
Co.), 890 A.2d 50, 56 (Pa. Cmwlth. 2006); Budd Baer, Inc. v. Workers’ Comp.
Appeal Bd. (Butcher), 892 A.2d 64, 67 (Pa. Cmwlth.) (holding that under Section
413(a) of Act, medical payments do not constitute “compensation” despite
potentially harsh result, claimants electing to sign agreement foregoing indemnity
benefits bear “the risk of being beyond the statute of limitations when their injury



       8
           The Supreme Court in Westinghouse explained:
       [A] critical distinction exists between the statute of repose present in Section 315
       [of the Act], where the employer’s liability has not yet ripened, and the statute of
       limitations of Section 413(a) [of the Act], where employer’s liability has been
       established. Pursuant to the former section, payment of medical expenses and/or
       wage loss benefits as payments in lieu of compensation may toll the time
       limitations of Section 315 [of the Act]. Conversely, however, pursuant to the
       latter, liability is established and medical expenses and wage loss benefits are then
       considered separately.
Westinghouse, 883 A.2d at 591 (citations omitted).



                                                8
worsens or their disease progresses”), appeal denied, 906 A.2d 544 (Pa. 2006);
Seekford, 909 A.2d at 427-28. Thus we reject Claimant’s argument.
             Claimant’s depression and anxiety, while distinct from the injury
identified in the initial NCP, purportedly arose from Claimant’s original low back
sprain/strain injury and, under Section 413(a) of the Act, Claimant was required to
comply with the time limitations set forth in that provision—i.e., file his review
petition within three years of the last payment of compensation, which occurred in
1998 as a result of the compromise and release agreement.
             With regard to Claimant’s argument that the Board’s decision
constitutes a violation of contractual principles arising under the compromise and
release agreement, we also find that argument meritless. First, the compromise and
release was drafted in reference to the injury identified as occurring in 1989.
Second, in Budd Baer, we held that contract principles do not apply to a workers’
compensation commutation award. Budd Baer, 892 A.2d at 67. Accordingly, we
reject this argument.
             Finally, Employer also asserts that Claimant has waived the question
of whether the prescriptions for Xanax and Paxil were for Claimant’s identified
chronic pain injury, rather than a direct treatment for his distinct depression and
anxiety conditions, because he failed to raise that issue in his petition for review
and his statement of questions presented to the Court. We agree with Employer
that Claimant did not raise this issue in his statement of questions presented. In his
statement of questions presented, Claimant only challenged the Board’s reversal of
the WCJ’s expansion of the identified injury with regard to his depression and
anxiety where Claimant continued to receive medical benefits after entering a
compromise and release agreement. Claimant’s single question only asserted that


                                          9
the compromise and release agreement did not trigger the running of the statute of
limitations under Section 413(a) of the Act.       Pennsylvania Rule of Appellate
Procedure 2116 provides that “[n]o question will be considered unless it is stated in
the statement of questions involved or is fairly suggested thereby.” We agree with
Employer that the statement of questions involved does not explicitly or “fairly”
suggest the question posed above. Accordingly, we deem the issue waived.
             Additionally, even if Claimant had not waived the issue, we agree
with Employer that Claimant’s reliance upon the WCJ’s factual finding is
misplaced. Although the WCJ did phrase his finding regarding Dr. DeJulia’s
testimony to characterize Claimant’s “depression of chronic disease” as an
“integral part of chronic pain syndrome,” the WCJ did not find that Dr. DeJulia
testified that he prescribed the depression and anxiety medications to treat
Claimant’s chronic pain. Rather, the WCJ found that Dr. DeJulia testified that he
solely managed “Claimant’s chronic pain . . . through narcotic analgesics and
medication to alleviate the paresthetic pain in the bilateral lower extremities.”
(Finding of Fact (F.F.) No. 31.) With regard to Claimant’s depression, the WCJ
found that Dr. DeJulia testified that he initially treated Claimant with Paroxetine
and added Xanax at a later date. (F.F. No. 37.) Dr. DeJulia’s testimony supported
only the conclusion that Claimant’s original back pain caused his chronic pain
syndrome, which, in turn, later caused Claimant to become depressed and to have
anxiety, which Dr. DeJulia treated by Paroxetine and Xanax, which medications
Dr. DeJulia had not prescribed to treat Claimant’s pain syndrome.
             Accordingly, we affirm the Board’s order.

                                 P. KEVIN BROBSON, Judge

Judge Cohn Jubelirer did not participate in the decision of this case.

                                         10
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Samuel Friday,                         :
                        Petitioner     :
                                       :
           v.                          :   No. 559 C.D. 2015
                                       :   No. 560 C.D. 2015
Workers’ Compensation Appeal           :
Board (Pennsylvania State University), :
                        Respondent :


                                  ORDER


            AND NOW, this 11th day of January, 2016, the order of the Workers’
Compensation Appeal Board is AFFIRMED.




                              P. KEVIN BROBSON, Judge
