OPINION NOT REPORTED
MEMORANDUM OPINION BY MICHAEL H. WOJCIK, Judge.
Mark W. Sheaffer (Claimant) petitions for review of the April 15, 2016 order of the Workers' Compensation Appeal Board (Board), which affirmed the July 1, 2015 decision and order of Workers' Compensation Judge Michael Kroll (the WCJ), confirming and documenting that Standard Steel, LLC and its insurer (together, Employer) obtained approval of a Workers' Compensation Medicare Set-Aside account from the Centers for Medicare and Medicaid Services (CMS); incorporating an Addendum to the parties' Compromise and Release Agreement (C&R) submitted by Employer; and confirming the conclusion of Employer's responsibility for any future workers' compensation payments related to Claimant's May 19, 2009 work injury. We affirm.
On May 19, 2009, Claimant sustained a work-related injury in the nature of a herniated disc at L2-3. Reproduced Record (R.R.) at 16a. The parties entered into a C&R on December 16, 2014,
C&R, par. 13, R.R. at 17a. In his decision approving the C&R, WCJ Russell found and concluded that Claimant understood the full legal significance of the C&R and entered into it knowingly and voluntarily. R.R. at 12a-15a.
On April 16, 2015, Employer filed a petition to "Seek Approval of a Compromise and Release Agreement (ask Judge to approve settlement)," indicating that the parties had agreed to resolve Claimant's medical benefits, pursuant to Section 449 of the Workers' Compensation Act (Act).
During the hearing, the parties agreed that in lieu of a second C&R, Employer would submit documentation and the WCJ would issue an order confirming that Employer exercised its option pursuant to the original C&R and fully funded the set aside account.
R.R. at 59a-60a (emphasis added)
The WCJ continued the matter for thirty days. Id. Thereafter, Employer submitted a copy of the WCMSA, documentation of CMS approval and an addendum to Paragraph 13 of the C&R. R.R. at 34a-35a. By decision and order dated June 30, 2015, the WCJ adopted and approved the Addendum as fair and equitable and as confirmation of the conclusion of Employer's responsibility related to Claimant's May 19, 2009 work injury.
Claimant then appealed to the Board, asserting that: Employer wrote to the WCJ on June 27, 2015, requesting an order adopting an addendum to paragraph 13 of the previously approved C&R; the WCJ received that correspondence of June 29, 2015; on June 29, 2015, Employer faxed additional documentation to the WCJ and mailed a copy of his June 27
The Board rejected these arguments, stating that there was no evidence of an improper ex parte communication, the documents submitted by Employer were the documents agreed upon at the June 9, 2015 hearing, and Claimant's attorney specifically declined an opportunity for a further hearing on the matter. Accordingly, the Board affirmed the WCJ's decision, and Claimant continues these arguments on appeal to this Court.
Claimant contends that the Board erred in concluding that the original C&R contemplated a modification of its terms without providing him notice and an opportunity to object or provide testimony concerning his understanding of the agreement. Claimant also argues that the Board erred in determining that the documents submitted to the WCJ were not ex parte communications and in concluding that he waived any due process rights to object to a decision based on those documents. Each of these arguments rests on Claimant's assertion that the WCJ's July 1, 2015 order changed the terms of the previously approved C&R.
Employer responds that, rather than reflecting a modification of the original C&R or a new agreement between the parties, the order adopting and approving the Addendum to Paragraph 13 simply recognized that the condition contemplated in the original C&R, CMS approval of the WCMSA and Employer's decision to fund the WCMSA, had occurred. Additionally, Employer notes that Claimant voiced no objection to the WCJ's proposal during the June 9, 2015 hearing. We agree with Employer.
The record is clear that, as an express term of the original C&R, Claimant agreed to cooperate with Employer in its efforts to obtain CMS approval of a WCMSA, and Claimant further agreed that once CMS approved the set-aside account, Employer would have, at its sole discretion, the option to either fully fund the WCMSA via an annuity or other means or keep Claimant's entitlement to medical benefits open. R.R. at 17a. Claimant's arguments concerting ex parte communications and due process also are belied by the record, which reflects that Claimant's counsel specifically and unequivocally agreed to the ensuing procedure.
Accordingly, we affirm.
AND NOW, this