Opinion
No. 99 C.D. 2011
06-16-2011
Comcast Corporation, Petitioner v. Workers' Compensation Appeal Board (Truschel), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BUTLER
Comcast Corporation (Employer) petitions for review of the July 22, 2009 order of the Workers' Compensation Appeal Board (WCAB) affirming the decision of the Workers' Compensation Judge (WCJ) granting the claim petition of Richard Truschel (Claimant), finding a partially unreasonable contest and remanding the matter to the WCJ to address a subrogation lien raised by Healthcare Recoveries on behalf of the UPMC Health Plan (UPMC). Employer also petitions this Court to review the WCAB's December 22, 2010 order upholding the WCJ's determination on remand that a valid subrogation was established by UPMC. The issues before this Court are: (1) whether the WCJ's finding that Claimant's cervical condition and related surgery were due to a work-related injury is supported by substantial evidence; (2) whether the WCAB erred by affirming the WCJ's finding that Employer's contest was unreasonable in part; and, (3) whether the WCAB erred as a matter of law in affirming the WCJ's decision granting the subrogation interest of UPMC. For the following reasons, we affirm the orders of the WCAB.
Claimant has been employed as a field technician by Employer since 2000. On October 26, 2007, while working with another technician moving cable on a hillside, the hillside gave way. Claimant fell to the road below, landing on his right elbow, which forced his shoulder into his neck. He experienced neck pain and arm numbness. Claimant's supervisor transported Claimant to the hospital, where he was diagnosed with acute cervical strain. The incident was reported by Employer to its insurer, Liberty Mutual, and Liberty Mutual's third party administrator, Helmsman Management Services LLC (collectively, Insurer). Although he was still experiencing numbness in his right arm, Claimant returned to work on October 31, 2007. Employer informed Claimant that he could not work without a medical release. As a result, on November 1, 2007, Claimant treated with Laurie S. Molinda, M.D. at HealthWorks.
Dr. Molinda diagnosed Claimant with a cervical strain with right upper extremity paresthesias, and scheduled Claimant for an MRI, which he underwent on November 2, 2007. On November 5, 2007, Dr. Molinda reviewed the MRI results, which demonstrated: degenerative discs at the C4-5, C5-6 and C6-7 levels; diffuse disc herniation at the C4-5 level with spinal cord compression, edema, and bilateral frontal narrowing; C5-6 level disc herniations causing flattening of the cervical cord and bilateral foraminal narrowing; and, diffuse disc protrusion at the C6 level mildly flattening the cervical cord from the right. Dr. Molinda diagnosed cervical strain with right upper extremity paralysis and referred Claimant to E. Richard Prostko, M.D. for a neurosurgical evaluation.
Claimant was examined by Dr. Prostko on November 8, 2007, at which time he was experiencing extreme numbness in his right arm, and numbness and tingling in his left arm. Dr. Prostko diagnosed Claimant with an intrinsic central cord injury and significant cervical myeloradiculopathy. Dr. Prostko recommended that Claimant undergo cervical decompression surgery.
Jill Ventre, the Insurer's claims adjustor, testified that the matter was handled by the Insurer's medical-only unit, with $10,000.00 reserved for indemnity, until Claimant notified the Insurer on November 9, 2007 that he was to undergo surgery on November 13, 2007. The claim was then re-assigned to Ms. Ventre. She sent Claimant medical release authorizations, and contacted Dr. Prostko. She was informed by Dr. Prostko's office that Claimant was diagnosed with cervical herniation with myelopathy, and that he was out of work pending his surgery. She was told that his medical records were not yet available from dictation. Ms. Ventre interviewed Claimant on November 12, 2007. Because Ms. Ventre had not received medical support that his surgery was related to his fall, she issued a denial of Claimant's claim on November 16, 2007, on the basis of "other good cause" because there was "[n]o evidence to substantiate current condition, need for tx or associated disability is due to a work injury on 10/26/07 with Comcast. . . . . 21 day rule - Lost time was notified on 11/09/2007." Reproduced Record (R.R.) at 1. The notice of denial reflects that the affected body parts included Claimant's right shoulder, mid-back, neck and right elbow.
On November 30, 2007, in order to have Employer recognize that he sustained a work injury on October 26, 2007, Claimant filed a claim petition relative to injuries to his neck specifically involving his C4-5, C5-6 and C6-7 discs suffered as a result of the incident. Employer denied Claimant's allegations. Notably, however, on December 3, 2007, Employer's safety director contacted Employer's claims manager who, in turn contacted Ms. Ventre's office and expressed concern that the claim had been denied.
According to the record, Claimant was released to return to light-duty work on January 8, 2008; however, because Employer did not have work available within his restrictions, Claimant remained off work and participated in physical therapy until he was released to return to his job without restriction on June 25, 2008. Although Claimant still experiences some pain and numbness in his hands for which he takes medication and continues to treat those symptoms, they do not interfere with his ability to do his job.
Hearings were held before a WCJ on January 10, March 18, May 14, and August 12, 2008. During the March 18, 2008 hearing, Claimant amended his claim petition to be sure it included his right elbow and shoulder injuries. The record was closed by the WCJ on September 29, 2008. Claimant received notice of UPMC's subrogation interest by letter dated November 24, 2008. Claimant forwarded the lien letter to the WCJ on November 26, 2008, along with a request to re-open the record. On December 1, 2008, the WCJ issued its order granting Claimant's claim petition and requiring Employer to pay benefits, attorney's fees for a partially unreasonable contest, and costs of litigation. Employer appealed to the WCAB. Claimant cross-appealed because the WCJ's decision did not address UPMC's purported subrogation interest. On July 22, 2009, the WCAB affirmed the WCJ's grant of Claimant's claim petition and its finding that Employer's contest was partially unreasonable, but remanded the case for the WCJ to address Claimant's subrogation lien.
On August 18, 2009, Employer filed a petition with this Court for review of the WCAB's July 22, 2009 order at Docket No. 1615 C.D. 2009. By order issued September 1, 2009, the appeal was quashed as interlocutory.
The remand hearing was held on December 14, 2009, during which UPMC's lien letter and its attached record of medical bill payments reflecting a $30,001.26 lien, and a December 12, 2008 fee letter for Claimant's counsel relative thereto were introduced without objection. Claimant's counsel stated that the lien letter was not solicited by her, and she had no information as to why the lien was not asserted sooner. Employer's counsel stipulated that the medical bills in the lien letter were related to Claimant's work-related injury. On March 4, 2010, the WCJ issued a decision on remand recognizing UPMC's subrogation interest, thereby ordering Employer to pay the $30,001.26 lien, less a 20% attorney fee. Employer appealed and, on December 22, 2010, the WCAB issued an order affirming the WCJ's March 4, 2010 decision. Employer appealed both the July 22, 2009 and December 22, 2010 decisions to this Court.
"This Court's scope and standard of review of an order of the [WCAB] is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether [WCAB] procedures were violated, whether constitutional rights were violated or an error of law was committed." World Kitchen, Inc. v. Workers' Comp. Appeal Bd. (Rideout), 981 A.2d 342, 346 n.5 (Pa. Cmwlth. 2009).
On February 3, 2011, Claimant filed a motion to quash Employer's appeal on the basis that Employer's petition for review failed to contain, pursuant to Pa.R.A.P. 1513(d)(5), (6), a general statement of objections to the order, and a short statement of the relief sought. By order issued March 2, 2011, this Court denied the motion to quash, stating "that the petition for review, while not concise, does contain a 'general statement of objections' to the order of the Workers' Compensation Appeal Board."
On appeal, Employer argues that the WCAB erred by affirming the WCJ's finding that Claimant's cervical condition and surgery were attributable to the October 26, 2007 work incident. We disagree. This action is based upon a claim petition filed by Claimant for injury to his cervical spine at C4-5, C5-6 and C6-7, and for right elbow and shoulder injuries. The law is clear that
[i]n a claim petition, the burden of establishing a right to compensation and of proving all necessary elements to support an award rests with the claimant. The claimant must establish that her injury was sustained during the course and scope of employment and is causally related thereto. The claimant is also required to establish the length of her disability.Coyne v. Workers' Comp. Appeal Bd. (Villanova Univ.), 942 A.2d 939, 945 (Pa. Cmwlth. 2008) (citations omitted). In order to determine whether the WCJ and the WCAB properly found that Claimant in this case met his burden, we must look at whether there was substantial evidence to support the WCJ's findings. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Gibson v. Workers' Comp. Appeal Bd. (Armco Stainless & Alloy Prods.), 580 Pa. 470, 479, 861 A.2d 938, 943 (2004). Further, in an appeal to this Court from a decision of the WCAB, all evidence of record must be construed in favor of the party who was successful before the factfinder. Cerasaro v. Workers' Comp. Appeal Bd. (Pocono Mountain Med., Ltd.), 717 A.2d 1111 (Pa. Cmwlth. 1998).
Construing the evidence of record here in Claimant's favor, we conclude that there was substantial evidence to support the WCJ's findings. It is clear from the record in this case that Employer does not question that Claimant was injured while working on October 26, 2007. Rather, the Insurer questions whether Claimant's cervical condition and surgery were attributable to the October 26, 2007 work injury, because in February of 2008 it was discovered that in August of 2007, just two months before the work incident occurred, during a hospitalization for salmonella poisoning, Claimant complained of numbness and weakness in his body, including his arms. Claimant testified that he did not remember the incident at the time he related his history to Dr. Prostko, nor did he experience similar numbness between August 2007 and the date of his work accident.
Because Ms. Ventre had not received medical support that his surgery was related to his fall, she issued a denial of Claimant's claim on November 16, 2007. However, she continued to gather Claimant's medical records. She received Dr. Prostko's records on November 20, 2007. They did not contain an opinion relating Claimant's cervical condition to the October 26, 2007 incident. After she received Claimant's signed authorization on November 27, 2007, she attempted to collect Claimant's other medical records. The records she received from Claimant's personal physician, Todd A. McCaslin, M.D., included notes for office visits on March 9, March 20, April 9, November 9, 2007, a cervical and lumbar MRI report for March 9, 2007, and a cervical MRI report for November 2, 2007.
Claimant underwent an independent medical evaluation (IME) with Howard J. Senter, M.D, F.A.C.S., on January 24, 2008, during which Dr. Senter noted that Claimant's November 2007 MRI showed an acute herniated disc that was not evident on a March 2007 MRI taken as a result of a work-related motor vehicle accident. Dr. Senter, therefore, related Claimant's condition and his November 2007 surgery to the October 26, 2007 work injury. On February 27, 2008, however, Ms. Ventre received from Employer a report from Dr. McCaslin dated August 23, 2007 that reflected Claimant experienced arm numbness during a bout with salmonella poisoning. Ms. Ventre forwarded this information to Dr. Senter who issued an amended IME report dated March 13, 2008, in which he opined:
if in fact that bilateral upper extremity paresthesias occurred after retching in August of 2007, then that would be the proximate cause of the acute disc herniation [evident in Claimant's November 2, 2007 MRI]. If in fact the upper extremity paresthesias only began after the October, 2007 fall, then that would be the cause of the acute disc herniation seen on the MRI scan performed.Notes of Testimony, March 18, 2008, Ex. E.
According to Claimant's testimony, he vomited once as a result of food poisoning in August of 2007, and he experienced numbness and weakness in his arms and legs during that illness. There is nothing in this record that specifically relates his numbness to any incident of violent vomiting, as Employer suggests. Reference by Dr. Senter in his March 13, 2008 report to the arm numbness being related to Claimant's violent retching in August of 2007, appears to stem from Claimant's counsel's verbal representations to Employer's counsel, which were passed on to Ms. Ventre, who provided that information to Dr. Senter. See R.R. at 231-235. There is no specific information in the records from the August 2007 incident to support that specific fact. Accordingly, the WCJ did not find credible the representations that Claimant experienced paresthesias symptoms before his October 26, 2007 injury.
"The WCJ, as fact finder, has exclusive province over questions of credibility and a reviewing court is not to reweigh the evidence or review the credibility of witnesses." City of Phila. v. Workers' Comp. Appeal Bd. (Reed), 785 A.2d 1065, 1068 (Pa. Cmwlth. 2001). "Such [credibility] determinations are binding on appeal unless made arbitrarily and capriciously." Casne v. Workers' Comp. Appeal Bd. (Stat Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008) (quoting PEC Contracting Eng'rs v. Workers' Comp. Appeal Bd. (Hutchison), 717 A.2d 1086, 1089 (Pa. Cmwlth. 1998)).
"A capricious disregard of evidence exists 'when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result.' The meaning of arbitrary includes 'founded on prejudice or preference rather than on reason or fact.'" Casne v. Workers' Comp. Appeal Bd. (Stat Couriers, Inc.), 962 A.2d 14, 19 n.5 (Pa. Cmwlth. 2008) (citation omitted).
The WCJ deemed credible Claimant's testimony regarding the nature of his October 26, 2007 work injury. The records reveal that Claimant's complaints were consistent with his work injury, and there is no inference by any physician, even Dr. Senter, that challenges them. The WCJ deemed credible Dr. Senter's conclusions that Claimant's October 2007 accident aggravated a pre-existing but asymptomatic cervical myelopathy, and caused an acute disc rupture for which surgery was performed. The WCJ did not disregard evidence that Claimant experienced arm weakness in August of 2007. The WCJ simply reasoned that since Claimant's overall weakness in August of 2007 was not limited to his arms, and since it was not specifically related to violent vomiting, notwithstanding Dr. Senter's March 13, 2008 report, Claimant's upper extremity difficulties after his October 26, 2007 work injury were specifically related thereto. Because the WCJ's credibility determinations were supported by the record in this case, and were not made arbitrarily or capriciously, we will not disturb them. We conclude, therefore, that there was substantial evidence to support the WCJ's findings that Claimant's cervical condition and surgery were attributable to the October 26, 2007 work incident.
Next, Employer argues on appeal that the WCAB erred by affirming the WCJ's finding that the Employer's contest was partially unreasonable. We disagree. Section 440(a) of the Workers' Compensation Act (Act) provides:
Act of June 2, 1915, P.L. 736, as amended, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. § 996(a).
In any contested case where the insurer has contested liability in whole or in part . . . the employe . . . in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney's fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings: Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer.77 P.S. § 996(a). "The issue of whether an employer's contest was reasonable is a legal conclusion based on the WCJ's findings of fact." Yespelkis v. Worker's Comp. Appeal Bd. (Pulmonology Assocs., Inc.), 986 A.2d 194, 196 (Pa. Cmwlth. 2009). "A reasonable contest is established when medical evidence is conflicting or susceptible to contrary inferences and there is an absence of evidence that an employer's contest was frivolous or filed to harass a claimant." Johnstown Hous. Auth. v. Workers' Comp. Appeal Bd. (Lewis), 865 A.2d 999, 1004 (Pa. Cmwlth. 2005) (quoting Wertz v. Workmen's Comp. Appeal Bd. (Dep't of Corrs.), 683 A2d 1287, 1293 (Pa. Cmwlth. 1996)). "It is for the employer to establish such a reasonable basis for contesting liability." Kuney v. Workmen's Comp. Appeal Bd. (Cont'l Data Sys.), 562 A.2d 931, 933 (Pa. Cmwlth. 1989).
In this case, Employer has failed to establish a completely reasonable basis to contest liability for Claimant's claim. Employer notified Insurer on the day of Claimant's accident. The claim was transferred to Ms. Ventre after it was determined that Claimant would lose time from work. Although she did not have documentation from Dr. Prostko that specifically related Claimant's diagnosed neck injury and surgery to the October 26, 2007 work incident, she was notified by both Claimant and Employer that Claimant was injured that day. In addition, Claimant told her the he had no prior neck injuries, and Ms. Ventre conceded that Claimant suffered an injury on October 26, 2007. However, on November, 16, 2007, Ms. Ventre denied Claimant's claim on the basis that there was "[n]o evidence to substantiate current condition, need for tx or associated disability is due to a work injury on 10/26/07 with Comcast." R.R. at 1.
Despite her denial of Claimant's claim, Ms. Ventre obtained Claimant's medical records. She acknowledged that the emergency room report and Dr. Molinda's records related Claimant's complaints to the October 26, 2007 accident, but questioned the fact that his treatment and surgery for cervical disc herniation were related thereto when the reported injury was only to Claimant's right upper arm. In particular, she questioned how that resulted in a cervical strain and then led to a diagnosis of disc disease. She also became aware that Claimant was injured in March of 2007, due to a work-related motor vehicle accident, but the injury was to his lower back. Therefore, despite clear evidence that Claimant was injured on October 26, 2007, Employer's Insurer failed to acknowledge that any injury occurred.
We note, however, that the notice of denial reflects that the Insurer was aware that the body parts purportedly affected by Claimant's October 26, 2007 fall included his right shoulder, right elbow, mid-back and neck.
Ms. Ventre supplied the records, including a cervical MRI taken following the March 2007 accident, to Dr. Senter in time for Claimant's January 24, 2008 IME. In his January 24, 2008 IME report and in his February 12, 2008 clarification, Dr. Senter very clearly related Claimant's acute cervical disc herniation to the October 26, 2007 accident. Despite Dr. Senter's opinion, none of Claimant's medical bills were paid by the Insurer. It was not until February 27, 2008 that Ms. Ventre received the August 23, 2007 report from Dr. McCaslin about the arm weakness Claimant suffered in connection to a food poisoning incident that there was some documented question as to whether Claimant's neck complaints may have been due to something other than the October 26, 2007 work incident.
Employer has failed to establish a reasonable basis to contest liability for Claimant's claim. The notice of workers' compensation denial in this case was not supported by anything but the Insurer's intention to continue to investigate Claimant's claim at the time it was issued. This Court has held that a contest is unreasonable where the filing of a notice of denial of compensation is supported by nothing but the intention to continue to investigate the claim. Kuney. Moreover, Ms. Ventre received no medical evidence that was in conflict or otherwise susceptible to inferences contrary to the fact that Claimant was injured in the October 26, 2007 fall at work. It was not until approximately three and one-half months later that Employer secured evidence that made the medical conclusions susceptible to contrary inferences which could form the basis for a denial. Accordingly, we find no error in the WCJ's conclusion that Employer's contest was, in part, unreasonable.
Finally, Employer argues on appeal that the WCAB erred by affirming the WCJ's recognition of UPMC's subrogation interest, since it was not timely raised. We disagree. The second paragraph of Section 319 of the Act provides:
Where an employe has received payments for the disability or medical expense resulting from an injury in the course of his employment paid by the employer or an insurance company on the basis that the injury and disability were not compensable under this act in the event of an agreement or award for that injury the employer or insurance company who made the payments shall be subrogated out of the agreement or award to the amount so paid, if the right to subrogation is agreed to by the parties or is established at the time of hearing before the referee or the board.(Emphasis added and footnote omitted). Because UPMC's subrogation right has not been agreed to by the parties in this case, we must examine whether it was timely raised "at the time of hearing before the [WJC] or the [WCAB]."
To be clear, in interpreting and applying the words of Section 319, this Court has concluded that a subrogation interest need not necessarily be made at a specific hearing before a WCJ, but must be made with reasonable diligence during the pendency of the matter at issue. In Independence Blue Cross v. Workers' Compensation Appeal Board (Frankford Hospital), 820 A.2d 868 (Pa. Cmwlth. 2003), this Court stated that "subrogation under the second paragraph of Section 319 is not self-executing and must be asserted with reasonable diligence." Id. at 872 (emphasis added). In that case, this Court cited Baierl Chevrolet v. Workmen's Compensation Appeal Board (Schubert), 613 A.2d 132 (Pa. Cmwlth. 1992) as controlling on the issue of the timeliness of raising subrogation interests. In Baierl, this Court held that the timeliness provision in the second paragraph of Section 319 meant "that a subrogation claim must be asserted during the pendency of a workmen's compensation proceeding." Baierl, 613 A.2d at 134. "Pendency" is defined as "[t]he state or condition of being pending or continuing undecided." Black's Law Dictionary 1247 (9th ed. 2009). Accordingly, in order to be recognized, UPMC's subrogation interest must have been established during the pendency of the proceedings before the WCJ or the WCAB. We hold that the phrase, "at the time of hearing," as used in Section 319, does not mean at a specific hearing, but rather, "at the time of hearing" generally, i.e., during the pendency of workers' compensation proceedings.
It is undisputed that no subrogation interest on behalf of UPMC was either asserted or established at the January 10, March 18, May 14, or August 12, 2008 hearings before the WCJ. It is also clear that the record as to Claimant's claim petition was closed by the WCJ as of September 29, 2008. According to Claimant's counsel, Claimant was notified of UPMC's subrogation interest on November 24, 2008. Employer does not dispute that notice of the subrogation interest was sent to the WCJ on November 26, 2008, along with a request to re-open the record. The WCJ's decision was issued December 1, 2008, the first business day following the Thanksgiving holiday, without reference to the subrogation issue. Claimant cross-appealed the WCJ's decision regarding the WCJ's failure to address the subrogation lien.
The law is clear that "[w]here the WCJ fails to make findings integral to determining a matter on appeal to the [WCAB], the appropriate course of action is to remand the matter to the WCJ to make those findings." Repash v. Workers' Comp. Appeal Bd. (City of Phila.), 961 A.2d 227, 232 (Pa. Cmwlth. 2008). The WCAB also has broad discretion to order a remand in the interest of justice. Ranbar Tech., Inc. v. Workers' Comp. Appeal Bd. (Riley), 831 A.2d 751 (Pa. Cmwlth. 2003). Due to the circumstances surrounding the subrogation claim, in its July 22, 2009 opinion, the WCAB declared that "the interests of justice require a remand on this issue because the WCJ never responded to Claimant's request to re-open the record and, thus, never provided any rationale why the record would or would not be re-opened." Employer's Br. App. 2 at 6. The WCAB specifically ordered the matter "remanded in part for the WCJ to address Claimant's subrogation lien." Employer's Br. App. 2 at 8.
At the remand hearing, there was some confusion about whether the WCJ's purpose was to take evidence of UPMC's lien and order payment, or to first determine whether UPMC actually established a subrogation interest under Section 319 of the Act. It was agreed that both issues were to be determined by the WCJ. As to the amount of UPMC's lien, Claimant's December 12, 2008 fee agreement was introduced along with November 24, 2008 subrogation lien letter, and the parties stipulated to the relatedness of the medical bills referenced therein, thereby establishing the amount of UPMC's proposed lien.
As to whether UPMC waived its right to subrogation by failing to raise it during the claim proceedings, although the record in this matter had been closed by the WCJ as of September 29, 2008, until the time his decision was issued on December 1, 2008, the matter continued to be undecided by the WCJ, and he had the discretion to open the record. See Pryor v. Workers' Comp. Appeal Bd. (Colin Serv. Sys.), 923 A.2d 1197 (Pa. Cmwlth. 2006). We find persuasive that this Court has deemed the introduction by a claimant, without objection, of a subrogation lien letter containing an itemized report of medical expenses relative to the work-related injury, as occurred in the instant case, sufficient to satisfy the second paragraph of Section 319 of the Act. See Snap-Tite, Inc. v. Workers' Comp. Appeal Bd. (Ramey), (Pa. Cmwlth. 1047 C.D. 2008, filed October 10, 2008). We now similarly hold, under the circumstances of this case, that the November 24, 2008 subrogation lien letter with its attachments, provided to the WCJ on November 26, 2008, was sufficient to assert UPMC's subrogation lien during the pendency of the proceedings before the WCJ. Thus, the WCAB did not err by affirming the WCJ's recognition of UPMC's subrogation interest.
Section 414 of this Court's Internal Operating Procedures was amended effective January 1, 2011, thereby authorizing the citation of unreported panel decisions issued after January 15, 2008, for their persuasive value, but not as binding precedent.
Based upon the foregoing, the July 22, 2009 and December 22, 2010 orders of the Workers' Compensation Appeal Board are affirmed.
/s/_________
JOHNNY J. BUTLER, Judge
ORDER
AND NOW, this 16th day of June, 2011, the July 22, 2009 and December 22, 2010 orders of the Workers' Compensation Appeal Board are affirmed.
/s/_________
JOHNNY J. BUTLER, Judge