IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Firedex of Butler, Inc. and Star 

Insurance Company, :

:

Petitioners :

:

v. : No. 1625 C.D. 2017

: Submitted: July 6, 2018

Workers’ Compensation Appeal :

Board (Warner), :

:

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: November 28, 2018

Firedex of Butler, Inc. (Firedex) and its insurer Star Insurance 

Company (collectively, Employer) petition for review of an order of the Workers’ 

Compensation Appeal Board (Board) affirming the decision and order of a Workers’ 

Compensation Judge (WCJ). The WCJ denied Employer’s petition to review

medical treatment and/or billing (Review Medical Petition) and petition to terminate

compensation benefits (Termination Petition). For the reasons that follow, we 

reverse the denial of the Review Medical Petition, but affirm the denial of 

Employer’s Termination Petition. 

Jarrod Warner (Claimant) sustained a work-related injury to his left 

ankle on January 24, 2006 in his work for Firedex. (3/25/16 WCJ Decision Finding 

of Fact (F.F.) ¶4; Claimant Ex. 1 5/12/10 Testimony of Claimant (5/12/10 N.T. 
2

Claimant) at 9-10, Supplemental Reproduced Record (Supp. R.R.) at 49-50; WCJ 

Ex. 1 Notice of Compensation Payable (NCP), Reproduced Record (R.R.) at 1a.) 

Claimant had been employed by Firedex as a carpenter for approximately two 

months at the time of his injury. (3/25/16 WCJ Decision F.F. ¶4; Claimant Ex. 1 

5/12/10 N.T. Claimant at 7-8, Supp. R.R. at 47-48.) On February 17, 2006, 

Employer issued an NCP acknowledging this work injury as a left ankle sprain and 

paid Claimant total disability benefits pursuant to the Workers’ Compensation Act 

(Act).

1

 (WCJ Ex. 1 NCP, R.R. at 1a.) Claimant was prescribed narcotic pain 

medications after his work injury, including methadone. (3/25/16 WCJ Decision 

F.F. ¶¶4, 8, 11, 13; Claimant Ex. 1 5/12/10 N.T. Claimant at 14, Supp. R.R. at 54.) 

Claimant had been taking methadone for two years before the work injury as 

treatment for drug addiction; his dosage, however, increased following the work 

injury. (3/25/16 WCJ Decision F.F. ¶¶4, 8, 13; Claimant Ex. 1 5/12/10 N.T. 

Claimant at 14-16, 34-35, Supp. R.R. at 54-56, 74-75.) Claimant also suffered 

several additional injuries to his left foot and ankle after January 24, 2006 when he 

was not working, including a fracture in a motor vehicle accident in August 2007. 

(3/25/16 WCJ Decision F.F. ¶¶4, 8, 9, 13; Claimant Ex. 1 5/12/10 N.T. Claimant at 

18-23, Supp. R.R. at 58-63.) 

In 2010, Claimant filed a penalty petition, and Employer filed petitions 

to review medical treatment, to terminate compensation benefits, and to modify 

benefits. (WCJ Ex. 1 5/16/12 WCJ Decision F.F. ¶1, Supp. R.R. at 562.) In 2012, 

before any ruling on those petitions, the parties entered into a compromise and 

release agreement (C&R Agreement), Employer amended its modification petition 

to a petition to approve the C&R Agreement, and the parties withdrew their review 

medical, termination, and penalty petitions. (Id. F.F. ¶¶2-3, Supp. R.R. at 562.) On

 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1–1041.1, 2501–2708.
3

May 16, 2012, a WCJ issued a decision and order approving the C&R Agreement. 

(3/25/16 WCJ Decision F.F. ¶3; WCJ Ex. 1 5/16/12 WCJ Decision, Supp. R.R. at 

558-572.) Pursuant to the C&R Agreement, Employer paid Claimant $110,000 to 

resolve all wage loss indemnity benefit claims, but Employer remained responsible 

for reasonable and necessary medical benefits for Claimant’s work injury. (3/25/16

WCJ Decision F.F. ¶3; WCJ Ex. 1 5/16/12 WCJ Decision F.F. ¶4, Supp. R.R. at 562; 

WCJ Ex. 1 C&R Agreement ¶¶4, 6-8, 10, Supp. R.R. at 564a-565a, 567a.) 

On August 8, 2014, Employer filed the Review Medical Petition and 

Termination Petition at issue in this appeal. Employer submitted in support of these 

petitions the deposition testimony and report of Dr. Richard Kozakiewicz, a physical 

medicine and rehabilitation physician who examined Claimant on its behalf on June 

2, 2014. Claimant did not testify, but submitted his testimony from a May 12, 2010 

hearing on the 2010 petitions. Claimant submitted depositions of two of his past 

treating physicians, Dr. Dane Wukich, an orthopedic surgeon, and Dr. Megan 

Cortazzo, a pain medicine and physical medicine and rehabilitation physician, taken 

in 2010 and 2011 with respect to the 2010 petitions, and a 2011 report of Dr. 

Cortazzo. Claimant also submitted medical records for the period 2013 to 2015 

from his current treating physician, Dr. James Mathews, but did not submit any 

testimony or report from Dr. Mathews or any other physician offering any opinions 

concerning Claimant’s treatment or medical condition after 2011. Employer 

objected to the admission of the depositions of Drs. Cortazzo and Wukich, Dr. 

Cortazzo’s report, and Claimant’s 2010 testimony on the ground that they were

irrelevant because they did not relate to Claimant’s condition in 2014 and on the 

ground that they were hearsay. (6/26/15 Hearing Transcript (H.T.) at 7-11, R.R. at

84a-88a.) Employer also objected to the depositions of Drs. Cortazzo and Wukich, 

Dr. Cortazzo’s report, and Dr. Mathews’ records to the extent that they related to 
4

conditions that were beyond the scope of Claimant’s accepted injury. (Id. at 7-9, 

R.R. at 84a-86a; 9/18/15 H.T. at 21, R.R. at 111a.) The WCJ overruled Employer’s 

objections. (6/26/15 H.T. at 8-11, R.R. at 85a-88a; 9/18/15 H.T. at 21, R.R. at 111a.) 

On March 25, 2016, the WCJ issued a decision and order denying the 

Review Medical Petition and Termination Petition. The WCJ found the medical 

opinions of Drs. Cortazzo and Wukich credible and rejected the opinions of 

Employer’s medical expert, Dr. Kozakiewicz, as not credible. (3/25/16 WCJ 

Decision F.F. ¶13.) Based on the testimony of Drs. Cortazzo and Wukich, the WCJ 

held that Claimant’s work injury was not limited to the left ankle sprain accepted in 

the NCP and included reflex sympathetic dystrophy/complex regional pain 

syndrome (RSD/CRPS). (Id.) The WCJ held that Employer had the burden of proof 

on both the Review Medical Petition and the Termination Petition and concluded

that Employer did not satisfy its burden on either petition, given his credibility 

findings. (Id. F.F. ¶13, Conclusion of Law ¶1.) Employer appealed to the Board, 

which affirmed the WCJ’s decision and order on October 4, 2017. 

On appeal to this Court,2 Employer argues that the WCJ erred in 

holding that Claimant’s work injury included RSD/CRPS and in denying its Review 

Medical Petition and Termination Petition based on the 2010 and 2011 medical 

expert testimony introduced by Claimant. We agree that the WCJ erred in expanding 

the work injury beyond the injury set forth in the C&R Agreement and denying the 

Review Medical Petition, but conclude that the WCJ did not err in denying the 

Termination Petition. 

 

2 This Court’s review is limited to determining whether an error of law was committed, whether 

the WCJ’s necessary findings of fact are supported by substantial evidence, or whether 

constitutional rights were violated. Kurtz v. Workers’ Compensation Appeal Board (Waynesburg 

College), 794 A.2d 443, 447 n.5 (Pa. Cmwlth. 2002). 
5

Pursuant to Section 449 of the Act,3 when parties agree to the 

compromise and release of a claim, the C&R Agreement must be submitted to a 

WCJ, who shall approve the agreement following a determination that the agreement 

contains all of the necessary information provided for in the Act and that the claimant 

understands the full legal significance of the document. 77 P.S. § 1000.5(b). The 

Act requires that every C&R Agreement set forth details of the claim, including “the 

nature of the injury,” and that the “agreement must be explicit with regard to the 

payment, if any, of reasonable, necessary and related medical expenses.” 77 P.S. § 

1000.5(b), (c)(3). Once a C&R Agreement is approved by a WCJ, it is final, 

conclusive and binding on the parties, and may not be set aside absent a clear 

showing of fraud, deception, duress, mutual mistake or unilateral mistake 

attributable to an opposing party’s fault. Haslam v. Workers’ Compensation Appeal 

Board (London Grove Communication), 169 A.3d 704, 709 (Pa. Cmwlth. 2017); 

DePue v. Workers’ Compensation Appeal Board (N. Paone Construction, Inc.), 61 

A.3d 1062, 1067 (Pa. Cmwlth. 2013). 

A claimant may not expand or modify the description of an injury 

acknowledged in an approved C&R Agreement unless that right is expressly 

reserved in the agreement. Haslam, 169 A.3d at 709; DePue, 61 A.3d at 1067. In 

DePue, the claimant and employer entered into a C&R Agreement to resolve the 

indemnity portion of the claim with the employer agreeing to continue to pay “all 

reasonable and related medical bills” for a work injury described as “any and all 

injuries suffered at [the employer], including but not limited to the accepted injuries 

of a severe closed head injury with seizure disorder and short term memory loss.” 

61 A.3d at 1064 (emphasis omitted). This Court held that the claimant could not 

correct or expand the work injury to include a left shoulder injury allegedly caused 

 

3 Added by the Act of June 24, 1996, P.L. 350, 77 P.S. § 1000.5.
6

by the work accident and compel payment of medical bills for that injury where the 

employer had not accepted liability for that injury in its NCP, holding that the 

claimant’s failure to “expressly reserve his right to add a new injury to the 

description of his work injuries” precluded him from doing so after the C&R 

Agreement was approved. Id. at 1067-68. In Haslam, this Court similarly held that 

a claimant could not expand or modify the description of his injury to include 

RSD/CRPS where he had entered into a C&R Agreement with the employer which 

settled the indemnity portion of the case but required the employer to continue 

paying medical benefits related to an injury that was described as a right and left foot 

fracture. 169 A.3d at 706, 709. 

The C&R Agreement here settled the indemnity portion of Claimant’s 

claim against Employer and any other claim that Claimant could bring against 

Employer, but provided that Employer remained liable for “future medical treatment 

or healthcare for the compensable injury detailed in paragraphs 1 and 4 at page 1 [of 

the C&R Agreement], which remains open.” (C&R Agreement ¶¶4, 6-8, Supp. R.R. 

at 565, 567.) The C&R Agreement defined Claimant’s compensable injury by 

reference to the NCP, stating:

Liability under the [Act] was established by 02/17/2006 notice 

of compensation payable for an injury to the left ankle (the 

“compensable injury”), which is the controlling legal document.

(Id. ¶4, Supp. R.R. at 564.) The C&R Agreement further stated:

Excluding the right to future medical treatment or healthcare for 

the compensable injury detailed in paragraphs 1 and 4 at page 1, 

which remains open, subject to the terms of the [Act] and all 

related rules and regulations, this compromise and release 

agreement (“CRA”), if approved as is by a signed decision or 

order of an adjudicating workers’ compensation judge (“WCJ”), 

covers and forever settles all past, present (pending), and future 

claims or liability for each injury, condition, illness, disease, 
7

disability, loss, specific loss, and scar or disfigurement of the 

head, face, and neck, whether known or unknown, and every 

claimed and unclaimed consequence thereof, known and 

unknown, which in any way is or may be related to the 

employee’s employment with, for, or by the employer, including 

those for which liability, if any, has been established and exists 

under the [Act], and those, if any, for which liability has been or 

could have been asserted under the [Act] ....

(Id., Supp. R.R. at 567) (emphasis added). The only injury accepted by the NCP 

was a “sprain” of the left ankle. (WCJ Ex. 1 NCP, R.R. at 1a.) Nothing in the NCP 

references RSD/CRPS or any chronic pain condition and there was no WCJ decision 

prior to the C&R Agreement expanding the work injury beyond a left ankle sprain 

or any acceptance by Employer of liability for RSD/CRPS or any condition beyond 

a left ankle sprain. Claimant was therefore barred from expanding the description 

of his work injury to include RSD/CRPS and the WCJ’s amendment of the work 

injury was error. Haslam, 169 A.3d at 709; DePue, 61 A.3d at 1067. 

This does not, however, resolve the question of whether Employer was 

required to pay for Claimant’s treatment or whether the WCJ erred in denying the 

Review Medical Petition. In Haslam, we held that although the claimant was 

foreclosed from altering the description of the work injury, he was not barred from 

contending that the medical treatment for his RSD/CRPS was within the scope of 

the medical benefits that the employer had agreed to pay in the C&R Agreement. 

169 A.3d at 709. Because the employer had agreed in the C&R Agreement to “pay 

for all reasonable and necessary medical expenses that are related to” the 

acknowledged work injury of a fracture of the claimant’s feet, employer was 

required to pay for treatment of the claimant’s RSD/CRPS because that condition

was “related to [c]laimant’s fractured feet.” Id. at 709-10 (emphasis omitted). 

The issue to be determined on a petition to review medical treatment is 

whether the medical treatment is related to the work injury or for symptoms causally 
8

connected to the accepted work injury. Haslam, 169 A.3d at 708; Kurtz v. Workers’ 

Compensation Appeal Board (Waynesburg College), 794 A.2d 443, 447 n.7 (Pa. 

Cmwlth. 2002); Bloom v. Workmen’s Compensation Appeal Board (Keystone 

Pretzel Bakery), 677 A.2d 1314, 1317-18 (Pa. Cmwlth. 1996). The burden of proof 

as to the treatment for symptoms that are not included in the accepted work injury is 

not automatically on the employer or on the claimant; rather, who bears the burden 

of proof depends on whether the causal connection between the treatment or 

symptoms and the compensable work injury is “obvious.” Haslam, 169 A.3d at 710;

Kurtz, 794 A.2d at 447-48. If the causal connection is obvious, the burden falls on 

the employer to prove that the treatment or symptoms are not related to the work

injury. Haslam, 169 A.3d at 710; Kurtz, 794 A.2d at 448. If, on the other hand, the 

causal connection is not obvious, the burden on a petition to review medical 

treatment is on the claimant to prove by unequivocal medical testimony that the 

treatment or symptoms for which the treatment was provided are related to the 

accepted work injury. Kurtz, 794 A.2d at 448. “An ‘obvious’ connection ‘involves 

a nexus that is so clear that an untrained lay person would not have a problem in 

making the connection between’ the new symptoms and the compensated injury; the 

new symptoms would be a ‘natural and probable’ result of that injury.” Kurtz, 794 

A.2d at 447-48 (quoting Tobias v. Workmen’s Compensation Appeal Board 

(Nature’s Way Nursery, Inc.), 595 A.2d 781 (Pa. Cmwlth. 1991)); see also Haslam, 

169 A.3d at 710.

Here, the treatment at issue was for left foot and ankle RSD/CRPS that 

Claimant was experiencing in 2014 and the connection between that pain condition

and the accepted work injury of a 2006 left ankle sprain is not obvious. The causal 

connection between a pain condition in the same body part as the work injury and 

the work injury can be obvious. Haslam, 169 A.3d at 710; Kurtz, 794 A.2d at 448. 
9

If, however, the claimant has other non-work injuries or medical conditions 

involving the same part of the body, the causal connection is not obvious. Moyer v. 

Workers’ Compensation Appeal Board (Pocono Mountain School District), 976

A.2d 597, 599 n.3 (Pa. Cmwlth. 2009); Somerset Welding & Steel v. Workmen’s 

Compensation Appeal Board (Lee), 650 A.2d 114, 117 n.4 (Pa. Cmwlth. 1994). 

Claimant’s work injury was not the only injury to his left foot or ankle or the most 

severe; he had multiple other non-work injuries to his left foot and ankle, including 

a 2007 fracture in a motor vehicle accident. (3/25/16 WCJ Decision F.F. ¶¶4, 8, 9, 

13; Claimant Ex. 1 5/12/10 N.T. Claimant at 18-23, Supp. R.R. at 58-63.) In 

addition, Claimant had a history prior to the work injury of taking one of the 

medications at issue here, methadone, as a treatment for a preexisting addiction. 

(3/25/16 WCJ Decision F.F. ¶¶4, 8, 13; Claimant Ex. 1 5/12/10 N.T. Claimant at 14-

16, Supp. R.R. at 54-56.) Given these possible alternative causes for his pain and 

treatment, the causal relationship is not obvious without unequivocal medical expert 

opinion. The burden was therefore on Claimant to show that his 2014 medical 

treatment was related to his work injury, and the WCJ erred in placing the burden 

on Employer to show that the treatment was not work related. Kurtz, 794 A.2d at 

448. 

Moreover, the evidence relied on by the WCJ was insufficient to satisfy 

Claimant’s burden of proof. The evidence on which the WCJ based his conclusion 

that Claimant’s treatment was related to his work injury, Dr. Cortazzo’s and Dr. 

Wukich’s medical opinions, concerned Claimant’s medical condition and treatment 

in 2010 and 2011, several years before the medical treatment at issue here. Indeed, 

there was not even testimony from Claimant as to his symptoms in 2014; only his 
10

testimony from 2010 was introduced in evidence.4 While medical records of Dr. 

Mathews concerning Claimant’s treatment in 2013, 2014, and 2015 were introduced 

in evidence, these only documented Claimant’s treatment and do not contain any 

opinion that the treatment or the condition for which Claimant was treated was 

related to his 2006 ankle sprain. To the contrary, Dr. Mathews’ records refer to a 

more recent broken ankle as the source of the RSD/CRPS that he was treating and 

to a “severe injury to left leg and resultant pain.” (Claimant Ex. 5 2/21/13, 4/16/16 

Notes & 6/3/13 Medical Assessment Form, Supp. R.R. at 260, 315, 414.) The only 

medical opinions in evidence concerning whether Claimant’s condition and 

treatment at issue were connected to the 2006 work injury were those of Employer’s 

medical expert, Dr. Kozakiewicz. Dr. Kozakiewicz, however opined that the 

treatment was not causally related to the work injury (Employer Ex. A Kozakiewicz

Report at 3-4, Supp. R.R. at 514-515; Employer Ex. B Kozakiewicz Dep. at 19-24, 

R.R. at 36a-41a), and the WCJ rejected his testimony as not credible. 

While Employer is correct that the WCJ erred in denying the Review 

Medical Petition, Employer’s arguments with respect to the Termination Petition 

fail. On a termination petition, the burden of proof is on the employer, not the 

claimant, and Employer was required to show by credible, competent medical 

evidence either that Claimant’s disability has ceased or that any disability from 

which he still suffers is not caused by the work injury. Pryor v. Workers’

Compensation Appeal Board (Colin Service Systems), 923 A.2d 1197, 1205 (Pa.

Cmwlth. 2006); Campbell v. Workers’ Compensation Appeal Board (Antietam 

Valley Animal Hospital), 705 A.2d 503, 506–07 (Pa. Cmwlth. 1998). Because the 

 

4 We do not agree with Employer’s contention that the 2010 and 2011 testimony was irrelevant or 

hearsay and therefore inadmissible. The mere fact that evidence is relevant and admissible, 

however, does not make it sufficient to satisfy a party’s burden of proof. Rossi v. Workmen’s 

Compensation Appeal Board (City of Hazleton), 642 A.2d 1153, 1157 (Pa. Cmwlth. 1994).
11

WCJ did not find Dr. Kozakiewicz credible, Employer could not sustain its burden 

of proof, and the Termination Petition was properly denied. Campbell, 705 A.2d at

507.

Contrary to Employer’s contentions, the WCJ’s rejection of Dr.

Kozakiewicz’s testimony is not reversible error. In workers’ compensation matters, 

the WCJ is the ultimate finder of fact and the exclusive arbiter of credibility and 

witness weight. Furnari v. Workers’ Compensation Appeal Board (Temple Inland), 

90 A.3d 53, 59 (Pa. Cmwlth. 2014); Elliott Turbomachinery Co. v. Workers’

Compensation Appeal Board (Sandy), 898 A.2d 640, 647 (Pa. Cmwlth. 2006). The 

WCJ may accept or reject the testimony of any witness, including medical witnesses, 

even if the witness’s testimony is uncontradicted. Furnari, 90 A.3d at 70; Elliott 

Turbomachinery Co., 898 A.2d at 647; Capasso v. Workers’ Compensation Appeal 

Board (RACS Associates, Inc.), 851 A.2d 997, 1002 (Pa. Cmwlth. 2004). Unless 

made arbitrarily or capriciously, determinations of witness credibility and 

evidentiary weight will not be reversed on appeal. Furnari, 90 A.3d at 70; Casne v. 

Workers’ Compensation Appeal Board (STAT Couriers, Inc.), 962 A.2d 14, 19 (Pa.

Cmwlth. 2008). The WCJ here set forth reasons why he rejected the opinion of Dr. 

Kozakiewicz that are supported by the record. (3/25/16 WCJ Decision F.F. ¶13.)

The WCJ’s credibility determinations were thus not arbitrary or capricious and may 

not be disturbed by this Court. 

Accordingly, we reverse the order of the Board insofar as it affirmed 

the denial of Employer’s Review Medical Petition, but affirm the denial of 

Employer’s Termination Petition.

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Firedex of Butler, Inc. and Star 

Insurance Company, :

:

Petitioners :

:

v. : No. 1625 C.D. 2017 

: 

Workers’ Compensation Appeal :

Board (Warner), :

:

Respondent :

ORDER

AND NOW, this 28th day of November, 2018, the order of the Workers’ 

Compensation Appeal Board in the above-captioned matter is REVERSED insofar 

as it affirmed the denial of Petitioners’ petition to review medical treatment and/or 

billing and is AFFIRMED insofar as it affirmed the denial of Petitioners’ petition to 

terminate compensation benefits.

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge