K. Finnigan v. WCAB (FedEx Freight, Inc.) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kenneth Finnigan, :
Petitioner :
:
v. : No. 2348 C.D. 2015
: Submitted: May 20, 2016
Workers’ Compensation Appeal :
Board (FedEx Freight, Inc.), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: August 26, 2016
Kenneth Finnigan (Claimant) petitions for review of an adjudication
of the Workers’ Compensation Appeal Board (Board) granting benefits for a
closed period of time but denying his request for penalties. On the merits, the
Board affirmed the decision of the Workers’ Compensation Judge (WCJ) to grant
benefits for a closed period and reversed the WCJ’s grant of penalties. In addition,
the Board denied Claimant’s motion to dismiss the cross-appeal of FedEx Freight,
Inc. (Employer) as untimely. Claimant contends the Board erred. Discerning no
merit to Claimant’s arguments, we affirm the Board.
Claimant worked for Employer as a tractor-trailer driver. On March
13, 2013, while stopped at a red light, an automobile struck the back of his trailer,
causing his left knee to hit the steering wheel. He was 29 years old at the time of
the accident. Claimant reported the accident immediately, but he did not seek
treatment until March 20, 2013. On March 23, 2013, he filed a claim petition
pursuant to the Workers’ Compensation Act (Act).1
On March 29, 2013, Employer issued a notice of temporary
compensation payable (NTCP) for medical compensation only. On April 1, 2013,
Employer issued a notice stopping the temporary compensation (NSTC) and a
notice of compensation denial (NCD). On April 12, 2013, Employer filed an
answer to the claim petition denying that Claimant had suffered a work injury. At
the first hearing before the WCJ, Employer explained that it did not dispute the
accident but, rather, the nature and extent of the claimed injury. Claimant
responded by filing a penalty petition, claiming Employer violated the Act by
denying the claim and failing to properly investigate it.
Claimant testified that he was stopped at a red light when an
automobile hit the back of his truck. The truck was a freight liner with a cab and a
12-foot trailer. The automobile hit the bumper of the trailer, causing a dent; the
impact caused Claimant’s knee to strike the steering column. In spite of his knee
pain, Claimant continued to work until March 20, 2013, when he sought treatment
from Pamela Gianni, M.D., Employer’s “work doctor.” Notes of Testimony, May
15, 2013, at 15 (N.T., 5/15/2013, at ___); Reproduced Record at 146a (R.R. __).
She restricted his job to desk work and ordered magnetic resonance imaging
(MRI). Claimant returned to work on March 26, 2013, when Dr. Gianni advised
him that the MRI was normal; that he had no sign of an injury; and that he could
return to work without restrictions.2
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
2
Claimant submitted the medical records of Dr. Gianni, which correspond to Claimant’s
testimony.
2
The same day, Claimant went to MedExpress, an urgent care facility.
MedExpress suggested he see an orthopedic surgeon and scheduled a follow-up
visit for the next day. At the follow-up visit, Claimant stated that the pain in his
knee had resolved and that he did not need to see an orthopedic surgeon.
MedExpress released him to return to work without restrictions.
Claimant testified that his knee pain had not, in fact, resolved. He
reported it so to MedExpress because he wanted to get back to work. When the
pain continued into April, he then saw the orthopedic surgeon to whom he had
been referred by MedExpress.3 To date, he has treated with several doctors. He
returned to work full-time on September 25, 2013, but does not believe he is fully
recovered from his work injury.
Claimant presented the deposition testimony of David Stone, M.D.,
who is board-certified in physical medicine and rehabilitation. Dr. Stone first saw
Claimant on June 12, 2013, and he agreed that the March 22, 2013, MRI reported
no abnormalities. Dr. Stone believed this could have been because it was an “open
MRI.”4 Dr. Stone did not view the film of the March 2013 MRI; he only read the
report.
3
In April and May, Claimant treated with Mark A. Goodman, M.D., the orthopedic surgeon.
Claimant submitted two documents signed by Dr. Goodman. The first was a letter advising that
Claimant could not work “due to medical reasons” from April 8, 2013, through his next medical
evaluation, scheduled for May 16, 2013. R.R. 25a. The second was a letter sent to Dr. Goodman
from Claimant’s counsel on May 20, 2014, requesting that the doctor answer “yes” or “no” to
two questions regarding Claimant’s injury. Dr. Goodman checked “yes” to the question of
whether Claimant’s knee injury was due to a motor vehicle accident and “yes” that Claimant was
restricted from working due to the knee injury. R.R. 34a.
4
Generally, an open MRI machine has a larger opening and does not completely surround the
patient, as does a closed MRI. Dr. Stone did not explain why he believed an open MRI could
skew the results.
3
A second MRI was performed on September 4, 2013. The report
indicated hypertrophic quadriceps tendinopathy without focal tear. When Dr.
Stone reviewed the second MRI film, he concluded that it showed a small partial
tear. He diagnosed Claimant with a hypertrophic quadriceps tendinopathy with a
small partial tear. He then concluded that the partial tear was likely present on the
first, i.e, March 2013 MRI, but overlooked by the radiologist.
Dr. Stone acknowledged that tendinopathy is generally age related or
associated with overuse or intensely traumatic injuries. He did not know the force
of the impact to Claimant’s knee, but he believed Claimant’s injury to be
consistent with the history Claimant presented of the vehicular accident.
Employer submitted a report from Jeffrey Kann, M.D., who
conducted an independent medical examination (IME) of Claimant on June 10,
2013, and reviewed Claimant’s medical records. This included the March 2013
MRI, which was negative for any pathology, and the MedExpress records where
Claimant reported that his knee pain had resolved. Dr. Kann also reviewed the
records of the orthopedic surgeon, which did not report any pathology.
Based on his physical examination of Claimant and a review of his
medical records, Dr. Kann found Claimant to have suffered a left knee contusion
that was resolved. He found no abnormalities during Claimant’s physical
examination and he found no physical cause for Claimant’s subjective complaints
of pain. He concluded that Claimant was fully recovered from any injury he
sustained on March 13, 2013.
The WCJ found that Claimant was entitled to disability for the closed
period of March 27, 2013, through June 10, 2013, after which benefits terminated.
4
The WCJ credited the report of Dr. Kann over Dr. Stone and Dr. Goodman.5 She
accepted Claimant’s testimony that he sustained a work injury, but she rejected his
claim that the injury continued. The WCJ also found that Employer’s contest to
the claim petition was reasonable. Regarding the penalty petition, the WCJ found
Employer violated the Act by issuing a medical-only NTCP and later denying the
injury. As such, the WCJ awarded a penalty of 10% of the amount due and owing
Claimant.
Claimant appealed, and Employer filed a cross-appeal to the Board.
Claimant moved to dismiss Employer’s appeal, asserting that it had failed to effect
service on Claimant. On the merits, Claimant argued that the WCJ erred in closing
the record over Claimant’s objections; failed to issue a reasoned decision; and
erred by not awarding counsel fees for an unreasonable contest. Employer
challenged the WCJ’s penalty award.
The Board rejected Claimant’s contentions. As to Employer’s cross-
appeal, the Board found the WCJ erred in finding Employer violated the Act. As
such, the Board affirmed the grant of benefits for a closed period of time; reversed
the grant of the penalty petition; and affirmed the denial of Claimant’s request for
counsel fees.
Claimant has petitioned for this Court’s review and raises four issues.6
First, he contends that the Board erred in denying his motion to dismiss
Employer’s cross-appeal. Second, he contends the WCJ closed the record without
5
The WCJ noted that Claimant did not submit Dr. Goodman’s treatment records.
6
This Court’s review of a workers’ compensation adjudication determines whether an error of
law or a constitutional violation was committed or whether the findings of fact are supported by
substantial, competent evidence. Myers v. Workers’ Compensation Appeal Board (University of
Pennsylvania and Alexsis, Inc.), 782 A.2d 1108, 1110 n.1 (Pa. Cmwlth. 2001).
5
reasonable notice to him. Third, he contends the Board erred in affirming the
termination of benefits. Fourth, he contends that Employer’s contest was
unreasonable and that the Board erred in otherwise holding. 7
In his first issue, Claimant contends that he was not properly served
with Employer’s cross-appeal and, therefore, it should have been dismissed.
Employer counters that its cross-appeal was timely filed by means of the Workers’
Compensation Automation and Integration System (WCAIS). Claimant received
timely notice of Employer’s cross-appeal; the appeal document was not attached to
Employer’s notice because it had not yet been processed by the WCAIS system.
On September 2, 2014, Claimant appealed the WCJ’s decision.
Section 423(b) of the Act8 gave Employer 14 days to appeal; it states as follows:
If a timely appeal is filed by a party in interest pursuant to
clause (a), any other party may file a cross-appeal within
fourteen days of the date on which the first appeal was filed or
within the time prescribed by clause (a), whichever period last
expires.
77 P.S. §854.1. Employer filed its cross-appeal on September 12, 2014, and on the
same day, Employer sent Claimant’s counsel the following e-mail:
Please see attached. I have filed a cross appeal and Petition for
Supersedeas while the appeal is pending.
7
In the table of contents portion of the brief, Claimant lists the same four issues that are
addressed in the argument portion of the brief. However, in the section of the brief that lists the
statement of questions involved on appeal, Claimant lists five issues, with the additional issue as
whether the Board erred in reversing and vacating the award of penalties. Claimant’s Brief at 2.
This issue was not briefed and “[i]ssues not briefed are waived.” Van Duser v. Unemployment
Compensation Board of Review, 642 A.2d 544, 548 n.3 (Pa. Cmwlth. 1994).
8
Added by the Act of June 24, 1996, P.L. 350.
6
Attached please find confirmation of the Appeal being filed and
the Petition for Supersedeas. However, the actual Appeal is not
attached as I clicked to file the Petition for Supersedeas before
printing the actual Appeal. The Appeal has not popped up in
my dashboard. I will forward to your attention upon receipt.
Certified Record (unnumbered), E-mail of September 12, 2014. The attachment to
the e-mail included a WCAIS summary showing that Employer filed a cross-
appeal on September 12, 2014.
Claimant contends this e-mail does not comport with the Special
Rules of Administrative Practice and Procedure that govern appeals to the Board.
Section 111.12(d)-(e) states as follows:
(d) The respondent shall serve a copy of any cross appeal upon
all parties and the judge.
(e) The petitioner or respondent shall, concurrently with the
filing of an appeal or cross appeal, on a form prescribed by the
Board or in substantial compliance therewith, file a proof of
service with the Board containing:
(1) A statement of the date of service.
(2) The names of parties and judge served.
(3) The mailing address, the applicable zip code
and the manner of service on the parties and judge
served.
34 Pa. Code §111.12(d)-(e). Claimant argues that an appeal cannot be perfected
under Section 111.12(d) without serving a copy of the cross-appeal. Employer did
not do so and, thus, it did not effect service by the deadline of September 12, 2014.
In denying Claimant’s motion to dismiss, the Board explained that
neither “the Act or the regulations require dismissal of a timely-filed appeal or
cross-appeal as a sanction for a technical deficiency in service.” Board
7
Adjudication at 4. In his appeal, Claimant offers no authority to support his
challenge to the Board’s analysis. Claimant simply argues that the humanitarian
objectives of the Act require that it be construed in favor of the Claimant and, in
support, cites Turner v. Workmen’s Compensation Appeal Board (Jones &
Laughlin Steel Corporation), 389 A.2d 42, 47 (Pa. 1978), and Harper & Collins v.
Workmen’s Compensation Appeal Board (Brown), 672 A.2d 1319, 1321 (Pa.
Cmwlth. 1996).
Brown and Turner each recite that the Act should be liberally
construed, with borderline interpretations resolved in favor of the injured
employee. However, Brown and Turner are distinguishable.
In Brown, the claimant had returned to light duty work at the same
hourly rate as she was paid prior to her work injury. However, because the
employer could not make overtime available, the claimant was paid less than she
earned before her injury. The Supreme Court held that the claimant was entitled to
partial disability benefits to make her earnings equal to her pre-injury wage.
In Turner, the claimant’s work injury rendered him a paraplegic. At
issue was whether the claimant could modify the award from total disability to
specific loss because it would be economically advantageous under his union
contract. Generally, total disability benefits are more beneficial than specific loss
benefits. The Supreme Court held that a claimant whose injury falls into either
category could choose the option most advantageous to him.
In reaching their respective holdings, Brown and Turner recited the
principle that the Act “where borderline” should be construed in favor of the
claimant. Brown, 672 A.2d at 1321; Turner, 389 A.2d at 47. Here, by contrast, we
are not concerned with the benefit provisions of the Act. Rather, we consider a
8
regulation that governs the procedures to be followed in a workers’ compensation
proceeding and applies both to claimants and to employers. The regulation was
not intended to favor either side and must be applied consistently to all parties. We
reject Claimant’s argument that the regulation must be construed in close cases to
favor the claimant but against the employer. Procedural rules are intended to level
the playing field, not tip it in favor of either side.
The Board held that its regulation requiring attachment of the copy of
the cross-appeal was technical in nature and not jurisdictional. There was no
question that the cross-appeal was timely filed and immediately available to
Claimant on the WCAIS, as explained by Employer’s counsel in his e-mail. We
agree with the Board that in these circumstances the regulation does not require
dismissal of Employer’s timely-filed cross-appeal. Board Adjudication at 4. We
reject Claimant’s contrary argument.
In his second issue, Claimant argues that the WCJ closed the record
without notice and wrongly denied Claimant’s attempt to subpoena records from
Employer in June 2014. Employer responds that Claimant’s argument is a
complete fabrication of the history of the case.
The Special Rules of Administrative Practice and Procedure authorize
the WCJ to manage the proceeding. Section 131.101 states as follows:
(a) The judge may require the parties to submit proposed
findings of fact, conclusions of law and legal briefs or
memoranda to the judge for review and consideration.
(b) Submissions referred to in subsection (a) shall be made
within the time specified by the judge, but not later than 30 days
following the close of the record.
(c) The evidentiary record is closed when the parties have
submitted all of their evidence and rested or when the judge has
9
closed the evidentiary record on a party’s motion or the judge’s
own motion. If the judge determines that additional hearings are
necessary, or that additional evidence needs to be submitted, or
if the judge schedules additional written or oral argument, the
evidentiary record may be held open by the judge. When the
judge determines that the evidentiary record is closed, the judge
will notify the parties that the evidentiary record is closed on
the record or in writing.
(d) A party may move to close the evidentiary record and all
other parties shall advise the judge within 20 days as to whether
the evidentiary record is closed or whether there is additional
evidence to be submitted. At the conclusion of the 20-day
period, the judge will determine whether the evidentiary record
will be closed or will remain open.
(e) A judge may close the evidentiary record on the judge’s own
motion even if all parties have not rested when the judge
determines that the parties have had reasonable opportunity to
present their case, provided that reasonable notice of the
closing of the evidentiary record has been given to all parties.
34 Pa. Code §131.101(a)-(e) (emphasis added). The regulation authorizes the WCJ
to close the record on his own motion. 34 Pa. Code §131.101(e). We have held
that the exercise of a WCJ’s discretion under the above-stated regulation will not
be reversed absent a showing of an abuse of discretion. Hammerle v. Workmen’s
Compensation Appeal Board (Department of Agriculture), 490 A.2d 494, 497 (Pa.
Cmwlth. 1985).
We begin with a timeline of the proceeding, which was not provided
by Claimant. The claim petition was filed on March 23, 2013. On April 18, 2013,
Claimant requested Employer to provide the WCJ with all discoverable items,
including wage information, claim notes, records relating to the vehicle accident,
witness statements and any documents relating to Employer’s defense. At the
January 16, 2014, hearing, which was the second in the case, the WCJ questioned
10
whether Claimant needed a deposition inasmuch as it appeared that a report from
Claimant’s doctor would be sufficient. Nevertheless, the WCJ gave Claimant 45
days to submit either a deposition or a report. The WCJ also agreed to schedule a
hearing to take testimony from Claimant and stated “[p]erhaps we’d be able to
close at the next hearing.” N.T., 1/16/2014, at 9; R.R. 179a.
At the April 3, 2014, hearing, both parties moved to admit their
exhibits into evidence. This included the deposition testimony of Claimant’s
medical expert, Dr. Stone, and the parties’ other proffered exhibits. All were
admitted, subject to any objections to be ruled upon by the WCJ. Claimant
submitted his brief. At the conclusion of the hearing, the WCJ stated “All right,
I’ll diary it for 30 days for Employer’s briefs since I have Claimant’s. All right?
And we should be able to close.” N.T., 4/3/2014, at 25; R.R. 207a. The WCJ also
noted that Claimant’s bill of costs had not been submitted. Claimant’s counsel
replied he would submit it.
On May 8, 2014, Claimant’s counsel sent a letter to the WCJ, via the
WCAIS, complaining that Employer’s brief contained the assertion that the slight
vehicle impact that occurred could not have caused Claimant’s injury. Claimant’s
counsel stated that “should [the WCJ] feel it necessary,” a hearing could be
scheduled to determine the truth of this factual assertion. R.R. 101a.
On June 4, 2014, Claimant’s counsel logged on to WCAIS and
submitted a subpoena request, and Employer challenged the request. On June 17,
2014, Claimant’s counsel sent another letter to the WCJ. Therein, he complained
of Employer’s conduct and requested an award of counsel fees, stating that he
“sought this subpoena request to illuminate issues pending before this Honorable
Court based on the Pennsylvania Workers’ Compensation Act and the pending
11
petitions at issue in the matter sub judice.” R.R. 111a. The subpoena was for
insurance claim notes, which Claimant asserted should have been sent to him
pursuant to his April 18, 2013, discovery request. As to why Claimant waited over
a year to complain about not obtaining the notes, Claimant stated: “Whether
[Employer] has engaged in a reasonable contest is always at issue and an
unreasonable contest [is] particularly significant in light of the facts … underlying
this case.” R.R. 111a.
On June 27, 2014, the WCJ ruled. She refused to reopen the record
for additional evidence on the claims processing notes. She explained that “[t]he
briefs and closing documents of the parties were submitted in May....” R.R. 131a.
Thus, the attempt in June to request a subpoena was untimely. The WCJ advised
Claimant that “if the records you are requesting in your subpoena were so germane
to your petitions, this evidence should have been sought before the case was closed
and in line for decision.” R.R. 131a.
At the final hearing on April 3, 2014, the WCJ stated she was holding
the record open for 30 days for the submission of briefs with proposed findings of
fact and conclusions of law. Under the regulation, briefs “shall be made within the
time specified by the judge, but not later than 30 days following the close of the
record.” 34 Pa. Code §131.101(b) (emphasis added). The WCJ requested briefs
because as the WCJ stated, “we should be able to close [the record].” N.T.,
4/3/2014, at 25; R.R. 207a. At this time, Claimant had already submitted his brief.
By May 2014, Claimant had submitted his costs.
Claimant’s argument that he did not have reasonable notice that the
record was closing is at odds with the record. Indeed, the Board specifically held
that the WCJ did not abuse her discretion in refusing to reopen the record a year
12
after the proceeding began and several weeks after the last brief had been
submitted. Claimant does not address this conclusion. Nor does he assert that the
information sought was relevant or that its absence caused any prejudice. We
reject Claimant’s contention that the WCJ abused her discretion in denying his
motion to reopen the record.
In his third issue, Claimant argues that the WCJ erred by accepting the
testimony of Employer’s expert, Dr. Kann, who conducted a single examination,
over that of Dr. Stone, a member of a “world renown” sports medicine clinic.
Claimant Brief at 16. Claimant contends that the Board erred in terminating
Claimant’s benefits. Employer responds that the WCJ is the finder of fact with
sole authority to make credibility determinations. Dr. Kann examined Claimant’s
knee and found no abnormalities that would support Claimant’s subjective
complaints of pain. The March 2013 MRI of Claimant showed nothing abnormal
in Claimant’s knee. Dr. Stone did not accept the finding of the radiologist but
conceded that he did not review the March 2013 MRI film.
The March 2013 MRI was read as normal by the radiologist, and Dr.
Gianni, who ordered the MRI, so informed Claimant. Dr. Kann’s opinion was
based in part on the March 2013 MRI. Dr. Stone, who did not review the film of
the March 2013 MRI, believed that there was a small partial tear shown in the
second, September 2013 MRI. However, no such tear was noted by the
radiologist. Dr. Stone opined that the “small tear” was likely present in the March
2013 MRI but overlooked by the radiologist.
“[C]redibility determinations are within the exclusive providence of
the WCJ.” Lewis v. Workers’ Compensation Appeal Board (Andy Frain Services,
Inc.), 29 A.3d 851, 860 (Pa. Cmwlth. 2011). It does not matter if the evidence of
13
record can support a contrary finding, as long as the WCJ’s finding is supported by
substantial evidence of record. Id.Here, the WCJ found that in March 2013, Claimant’s knee showed no
pathology. This finding was supported by the radiologist who did the MRI, Dr.
Gianni and Dr. Kann, who could not find any abnormalities in Claimant’s knee
upon physical examination. Dr. Stone opined that the March 2013 MRI was
improperly read. This suggestion would have had more weight had he actually
reviewed the 2013 MRI film. The small tear he spotted six months later was not
spotted by the radiologist who did the test. Even so, the small tear could have
occurred sometime between March and September, in which case it would bear no
causal connection to the work injury. In the end, the WCJ rejected Dr. Stone’s
opinion over the March 2013 MRI, which showed no abnormalities, and the
independent medical examination of Employer’s expert. This was the province of
the WCJ, and we reject Claimant’s argument on this issue.
In his final issue, Claimant argues that Employer did not present a
reasonable contest. Claimant does not point to any facts that support this
contention; rather, in conclusory fashion he charges Employer with presenting a
frivolous contest. Employer counters that the claim petition’s description of the
injury was “knee,” with no specificity as to which knee or the extent of the injury.
Certified Record (unnumbered), Claim Petition at 1. In the absence of such
information, Employer’s contest about the extent and duration of the injury was
reasonable.
Based on Dr. Kann’s report, the WCJ found that Employer’s contest
on the nature and duration of Claimant’s injury was reasonable. Whether a contest
is reasonable is a question of law subject to this Court’s review. Yeagle v.
14
Workmen’s Compensation Appeal Board (Stone Container Corporation), 630 A.2d
558, 560 (Pa. Cmwlth. 1993). The burden of establishing a reasonable contest is
on the employer. Delaware Valley Fish Company v. Workmen’s Compensation
Appeal Board (Woolford), 617 A.2d 48, 50 (Pa. Cmwlth. 1992). “A reasonable
contest is established when conflicting or susceptible to contrary inferences in
medical evidence exists and no evidence exists that an employer’s contest was
frivolous or filed to harass the claimant.” Dworek v. Workmen’s Compensation
Appeal Board (Ragnar Benson, Inc. & National Union Fire Insurance Co.), 646
A.2d 713, 716 (Pa. Cmwlth. 1994). An employer “may reasonably contest a
workers’ compensation claim in order to ascertain the proper period and/or
duration of a claimant’s disability.” Bell’s Repair Service v. Workers’
Compensation Appeal Board (Murphy, Jr.), 850 A.2d 49, 55-56 (Pa. Cmwlth.
2004). In determining whether a contest is reasonable we look to the evidence the
employer had “at the time it made the decision to contest claimant’s petition, or
shortly thereafter.” Id.When first informed that Claimant was in a work-related vehicle
accident in March 2013, Employer issued a medical only NTCP. By April 2013,
when Employer filed its answer to the claim petition and issued the NSTC, it had
learned that Claimant’s March 2013 MRI was normal, and Dr. Gianni’s medical
examination found no abnormalities. Further, Claimant informed his treating
physician at MedExpress that his knee pain had resolved. Claimant was released
to return to work without restrictions in March 2013. By June 2013, Employer had
a report from Dr. Kann, which stated that he found no evidence that Claimant’s
subjective complaints of pain were due to his work-related vehicle accident. Given
15
this evidence, Employer had ample grounds to contest the claim petition. We find
no error by the Board in affirming the WCJ’s holding on this issue.
Accordingly, the order of the Board is affirmed.
______________________________________
MARY HANNAH LEAVITT, President Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kenneth Finnigan, :
Petitioner :
:
v. : No. 2348 C.D. 2015
:
Workers’ Compensation Appeal :
Board (FedEx Freight, Inc.), :
Respondent :
ORDER
AND NOW, this 26th day of August, 2016, the order of the Workers’
Compensation Appeal Board, dated October 28, 2015, in the above-captioned
matter is AFFIRMED.
______________________________________
MARY HANNAH LEAVITT, President Judge