Opinion
No. 1005 C.D. 2014 No. 1042 C.D. 2014
05-08-2015
William Feister, Petitioner v. Workers' Compensation Appeal Board (Mellinger Transportation, Inc. and Donald Mellinger Trucking), Respondents Mellinger Transport, Inc., Petitioner v. Workers' Compensation Appeal Board (Feister and Donald Mellinger Trucking), Respondents
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Before this Court are the cross-petitions for review filed by William Feister (Claimant) and Mellinger Transport, Inc. (MTI) from the May 30, 2014 order of the Workers' Compensation Appeal Board (Board), which affirmed the decision of a workers' compensation judge (WCJ) granting Claimant's claim petition, finding Donald Mellinger Trucking (DMT) and MTI to be joint employers of Claimant, and finding that MTI's workers' compensation insurance policy only covered clerical office employees.
By order of this Court dated August 11, 2014, these cross-petitions for review were consolidated for disposition. Additionally, by order dated October 27, 2014, this Court granted a motion for intervention filed by NorGuard Insurance Company.
Facts and Procedural History
The case has a lengthy procedural history, which was outlined in this Court's unreported decision in Feister v. Workers' Compensation Appeal Board (Mellinger Transportation, Inc. and Donald Mellinger Trucking) (Pa. Cmwlth., No. 850 C.D. 2010, filed April 27, 2011) (Feister I), and may be summarized as follows. In Feister I, we noted that Claimant originally filed a claim petition alleging that he was injured in a motor vehicle accident on October 20, 2006, while working as a truck driver for MTI. Claimant averred that he sustained a broken vertebra, loss of part of a leg, contusions, trauma, and scarring as a result of the accident. Thereafter, MTI filed a joinder petition, alleging that Claimant was an employee or independent contractor for DMT, which is a separate business entity from MTI. MTI had a workers' compensation policy with NorGuard Insurance Company (NorGuard), which covered its clerical office employees, but not truck drivers such as Claimant. Both petitions were assigned to the WCJ, who bifurcated the case in order to first decide the threshold issue of Claimant's employment status. (Feister I, slip op. at 1-2.)
On June 28, 2007, the WCJ conducted a hearing and received the testimony of Claimant and Donald Mellinger (Mellinger). Claimant testified that he drove a truck for DMT and that the door of the truck indicated that it was owned by DMT and operated by Donald Mellinger. Claimant stated that he did not lease the truck from either DMT or MTI. Claimant added that he did not pay for maintenance, fuel, or tolls, but was given cash for these expenses by Mellinger. Claimant also stated that DMT established his rate of payment. Claimant testified that either Don Mellinger or the dispatcher arranged for his pickups and deliveries; however, he was not certain whether DMT or MTI directed him where to go for his deliveries. He also did not know whether the dispatchers contacted him on behalf of DMT or MTI. (Supplemental Reproduced Record (S.R.R.) at 367a-80a.)
At this hearing, NorGuard submitted, without objection, a copy of its workers' compensation insurance policy with MTI. This policy only listed clerical office employees as the subjects of coverage.
The S.R.R. submitted by MTI identifies the page numbers with a lower case "a" instead of a lowercase "b" as required by Rule 2173 of the Pennsylvania Rules of Appellate Procedure.
Claimant further testified that he always kept a truck at his home and had blank bills of lading from DMT that he would fill out when picking up a load. However, Claimant also stated the bills of lading always identified MTI as the carrier. Claimant testified that on several occasions he attempted to arrange for additional loads to transport, but he first had to obtain Mellinger's approval. Claimant noted that Mellinger had refused to give him permission to accept some extra loads because they did not pay enough. (S.R.R. at 380a-402a.)
Mellinger testified that he is the sole shareholder of MTI and the sole proprietor of DMT. Mellinger stated that MTI leases trucks to DMT to haul freight, but he also stated that the trucks are actually titled to himself and DMT. Mellinger said that MTI has several office employees, including dispatchers, and one shop employee, but does not employ any drivers. Mellinger testified that MTI employees schedule freight pickups and deliveries, MTI establishes the rates that drivers receive, and MTI negotiates hauling rates with customers. Mellinger also testified that DMT withheld approximately 30% of Claimant's pay for tax and other purposes, DMT provided Claimant with cash for tolls and other expenses, and DMT provided Claimant with 1099 forms for income tax purposes. (S.R.R. at 409a-17a.)
On cross-examination, Mellinger denied that he or MTI provided any direction or exercised any control over truck drivers. Mellinger testified that DMT paid the drivers. Upon questioning by the WCJ, Mellinger stated that DMT schedules the pickups and deliveries, not MTI as he previously testified. However, he acknowledged that the dispatcher is an employee of MTI. Mellinger explained that DMT would make the arrangements, notify MTI of the same, and that MTI's dispatcher would then notify a driver. He also stated that the drivers have sole discretion to refuse or accept a load of freight and to determine the routes used for pickups and deliveries. Mellinger also testified that customers pay MTI, and then MTI takes a cut of 15% from this payment and forwards the remainder to DMT, which pays the drivers. (S.R.R. at 418a-25a.)
Mellinger was first called as a witness for Claimant.
On re-direct examination, Mellinger testified that MTI utilized multiple drivers. He reiterated that all drivers, including Claimant, could refuse a load, and that he never instructed drivers as to what routes to take, where to stop, where to eat, how to load a truck, or in what order to deliver the shipments. Instead, he merely informed the drivers of the nature of the load and when delivery was expected by the customer. Mellinger stated that he did not prohibit Claimant from picking up any loads on his own, but MTI would have to approve the shipment. He later explained that Claimant was free to work for other companies and could return to work for him without any penalty. (S.R.R. at 435a-45a.)
WCJ's 2007 Decision
In his 2007 decision, the WCJ found that: Claimant drove trucks owned by DMT and leased to MTI; DMT arranged for pickup and delivery of loads with customers and established the rate of Claimant's pay; DMT advised dispatchers employed by MTI of the pickup or delivery specifics; and MTI dispatchers advised Claimant of the location of the loads. (WCJ's Decision, December 20, 2007, Findings of Fact Nos. 2-8.) The WCJ further found that Claimant had the option to refuse any load and had full discretion regarding the route he drove to complete the pickup or delivery. (WCJ's Decision, December 20, 2007, Findings of Fact Nos. 9-10.) The WCJ also found that MTI's workers' compensation insurance provided by NorGuard only covered MTI's clerical office employees, not its drivers. (WCJ's Decision, December 20, 2007, Finding of Fact No. 1.)
Based on these findings, the WCJ concluded that Claimant failed to establish an employment relationship with either DMT or MTI. The WCJ ultimately dismissed Claimant's claim petition, concluding that, because Claimant was free to refuse loads and select the route of travel, Claimant failed to show that he was employed by either MTI or DMT. (WCJ's Decision, December 20, 2007, pp. 4-5; Reproduced Record (R.R.) at 7a-8a.) However, on appeal, the Board reversed the WCJ's decision and remanded for further proceedings. The Board reasoned that Claimant's ability to decline work and select his route was insufficient to establish that an employer-employee relationship did not exist. Moreover, the Board observed the following:
Here Claimant was paid by [DMT] and operated a truck owned by [DMT]. His picks ups [sic] and deliveries were arranged for and scheduled by a dispatcher employed by [MTI]. Moreover, he was required to seek approval from [MTI] before seeking out loads on his own. These facts, which were not disputed, establish that Claimant was an employee, and not an independent contractor.(Board's Decision, November 10, 2008, p. 6; R.R. at 14a.) The Board also observed that it was possible that Claimant was jointly employed by both DMT and MTI. (Id. at 6-7; R.R. at 14a-15a.)
WCJ's 2009 Decision
Following remand, in a decision circulated on July 21, 2009, the WCJ determined that Claimant was an employee of DMT. The WCJ incorporated by reference all of the findings of fact set forth in his December 20, 2007 decision and made the following conclusion of law:
2. Claimant is an employee of ... [DMT]. Claimant's pay came from [DMT], which also owned the truck Claimant operated. [MTI] is third-party administrator of the loads and nothing more. If [DMT] did not supply the truck, Claimant had no means by which to move loads arranged by anyone including [MTI].(WCJ's Decision, July 21, 2009, Conclusion of Law No. 2; R.R. at 21a.) Claimant appealed to the Board, which affirmed. On further appeal to this Court, we concluded that the WCJ's findings were "inadequate to determine whether MTI, DMT, or both entities had an employer/employee relationship with Claimant." Feister I, slip op. at 8. Thus, we vacated the Board's decision and directed that the matter be remanded to the WCJ for further findings of fact and conclusions of law as to the degree and manner of control exercised by DMT and MTI over Claimant.
WCJ's 2013 Decision
The WCJ made these additional relevant findings of fact in a decision dated February 6, 2013:
3. DMT exercised the following control over Claimant's work and the manner of its performance:
a. DMT owned the truck(s) driven by Claimant, which are leased to MTI;
b. DMT arranged all loads to be hauled by Claimant; therefore, the owners of the loads are customers of DMT;
c. DMT advised MTI dispatchers of Claimant's loads, and;
d. DMT issues Claimant's paychecks.
4. MTI exercised the following control over Claimant's work and the manner of its performance:
a. It leased the trucks from DMT;
b. MTI employed dispatchers who received information from DMT and then dispatched drivers, including Claimant, to haul loads for customers of DMT;
c. MTI also approved any loads Claimant may arrange on his own accord;
d. Absent MTI's direction or approval, Claimant would have no loads to haul.
(WCJ's Decision, February 6, 2013, Findings of Fact Nos. 3-8) (footnotes omitted).
5. Donald Mellinger owns DMT, a sole proprietorship.
6. Donald Mellinger is the sole shareholder of MTI.
7. As the sole owner of both DMT and MTI, Donald Mellinger ultimately controls all aspects of both entities.
8. By virtue of his sole ownership and ultimate control of both DMT and MTI, Mr. Mellinger's control extends to the above listed control over Claimant's work and the manner of its performance.
Based upon these findings, the WCJ concluded that Claimant was jointly employed by DMT and MTI. The WCJ noted that "each entity exercises a degree of control over Claimant's work and the manner of its performance that it is impossible to distinguish one from the other for purposes of an employment relationship under the Workers' Compensation Act [Act]." (WCJ's Decision, February 6, 2013, Conclusion of Law No. 2(a).) The WCJ also concluded that the fact that "both entities are actually solely owned and controlled by Donald Mellinger further supports the conclusion that DMT and MTI are one and the same employer under the Workers' Compensation Act." (WCJ's Decision, February 6, 2013, Conclusion of Law No. 3.)
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
DMT, MTI, and NorGuard Insurance appealed to the Board, which affirmed the WCJ's decision. The Board specifically rejected an argument by NorGuard that the WCJ erred by failing to make a specific finding that it was not liable for Claimant's compensation benefits because its policy only covered clerical office employees. The Board referenced a finding from the WCJ's 2007 decision to this effect, and because this finding was incorporated by reference and was never specifically appealed, the Board stated that said finding was part of the WCJ's 2013 decision. (Board's Decision, May 30, 2014, pp. 9-10.)
Discussion
MTI's Appeal
Joint Employment Relationship
On appeal to this Court, MTI first argues that the WCJ erred in concluding that it was a joint employer of Claimant because Claimant failed to establish the existence of an employer-employee relationship with MTI. We disagree.
Our scope of review is limited to determining whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, and whether constitutional rights were violated. DeGraw v. Workers' Compensation Appeal Board (Redner's Warehouse Markets, Inc.), 926 A.2d 997, 999 n.2 (Pa. Cmwlth. 2007).
In its responsive brief in these matters, DMT similarly alleges that Claimant was not its employee but an independent contractor.
A determination regarding the existence of an employer/employee relationship is a question of law subject to this Court's review. Moberg v. Workers' Compensation Appeal Board (Twining Village), 995 A.2d 385, 389 (Pa. Cmwlth. 2010). As we noted in our 2011 decision, courts typically consider the following factors to determine whether an employer/employee relationship exists:
Control of manner work is to be done; responsibility for result only; terms of agreement between the parties; the nature of the work or occupation; skill required for performance; whether one is engaged in a distinct
occupation or business; which party supplied the tools; whether payment is by the time or by the job; whether work is part of the regular business of the employer, and also the right to terminate the employment at any time.Universal Am-Can, Ltd. v. Workers' Compensation Appeal Board (Minteer), 762 A.2d 328, 333 (Pa. 2000).
While there is no fixed test to determine the existence of an employer/employee relationship, we have held that "the most important factor is evidence of actual control or the right to control the work to be done and the manner of its performance." Reflex Systems, Inc. v. Workers' Compensation Appeal Board (Ferrucci), 784 A.2d 217, 222 (Pa. Cmwlth. 2001) (citation omitted). We have found control to exist in an employment relationship where the alleged employer has the right to select the employee, the right and power to discharge the employee, the power to direct the manner of performance, and the power to control the employee. American Road Lines and Lexington Insurance Company v. Workers' Compensation Appeal Board (Royal), 39 A.3d 603, 611 (Pa. Cmwlth. 2012); 3D Trucking Company, Inc. v. Workers' Compensation Appeal Board (Fine), 921 A.2d 1281, 1288 (Pa. Cmwlth. 2007). "Payment of wages and payroll deductions are significant, as is provision of workers' compensation coverage. However, payment is not determinative." American Road Lines, 39 A.3d at 611 (citations omitted).
Moreover, nothing in the Workers' Compensation Act prohibits the imposition of joint and several liability. 3D Trucking Company, Inc., 921 A.2d at 1285. Joint employment exists where employers exercise joint control over a claimant for the mutual benefit of both employers. American Road Lines, 39 A.3d at 613. Further, in such cases, we have placed particular emphasis on the ability to control a claimant, including the ability to hire, fire, and assign or otherwise direct employees, in determining whether an employee/employer relationship exists. Id. at 615.
In the present case, the WCJ found that both Claimant and Mellinger credibly testified at the June 28, 2007 hearing. This testimony, which is summarized in detail above, constitutes substantial evidence in support of the WCJ's ultimate finding that Claimant was jointly employed by DMT and MTI. We agree with the WCJ that said testimony reveals that both DMT and MTI exercised varying degrees of control over Claimant's work and the manner of its performance such that it is impossible to distinguish one from the other for purposes of an employment relationship under the Act. For example, DMT owned the truck used by Claimant, scheduled all pickups and deliveries, advised MTI of the same, and actually paid Claimant; while MTI leased the truck from DMT, employed dispatchers to contact and coordinate pickups and deliveries with drivers, and approved or rejected loads arranged by Claimant or other drivers on their own. Indeed, even Mellinger, the sole proprietor/shareholder of DMT and MTI, confused the duties of each entity during his testimony before the WCJ.
We note that prior case law supports this conclusion. In 3D Trucking Company, Inc., the claimant worked as a truck driver for multiple entities, including Anthony Trucking and Anthony Hauling, which appear to have been subsidiaries of Anthony Holdings International, Inc. (AHI), as well as 3D Trucking Company, Inc. (3D Trucking), the business name for S.R. Anthony trucking. Anthony Hauling ceased operations in 2003 and leased its trucks to 3D Trucking. The claimant had the same supervisor at each of these employers. The claimant sustained shoulder and neck injuries following an accident in December 2003 and received sporadic indemnity payments from the Cura Group, Inc. (Cura), AHI's workers' compensation insurer. At the time of his injury, either 3D Trucking or Cura issued the claimant's paychecks.
The claimant filed review and modification petitions in September 2004 naming AHI and Cura as defendants and alleging that his wage loss benefits were underpaid, he received no wage loss benefits after July 2004, and his medical expenses were not paid. AHI filed an answer denying the allegations and naming the State Workers' Insurance Fund (SWIF) as its insurer at the time of the claimant's injury. AHI later filed a joinder petition against 3D Trucking. However, 3D Trucking neither filed an answer nor appeared before the WCJ to contest the joinder petition. The WCJ ultimately found that Cura, 3D Trucking, and AHI and its subsidiaries were joint employers of the claimant. With respect to 3D Trucking, the WCJ cited the claimant's undisputed testimony that 3D Trucking issued his paychecks. 3D trucking appeal to the Board, which affirmed.
On appeal, this Court affirmed, concluding that substantial evidence supported the WCJ's finding of an employment relationship between the claimant and 3D Trucking. We noted that "[a]n employer's payment of wages and payroll deductions are significant factors in determining whether an employer-employee relationship exists." Id. at 1288 (citation omitted). Reviewing the evidence, we cited several factors supporting the WCJ's finding, including , inter alia, that the claimant was instructed by his AHI supervisor to apply for employment with 3D Trucking, 3D Trucking began paying the claimant's wages in March 2003, 3D Trucking issued a W-2 to the claimant, and the claimant's supervisor advised him to report his injuries to 3D Trucking. Additional factors we found were indicative of a joint employment relationship included that the claimant worked for AHI-related companies for several years before the injury, the claimant had the same supervisor at the AHI companies and at 3D Trucking, and the related AHI companies leased their trucks to 3D Trucking.
In Sarver Towing (Wausau Insurance, Co.) v. Workers' Compensation Appeal Board (Bowser), 736 A.2d 61 (Pa. Cmwlth. 1999), the claimant worked as a tow truck driver and was paid exclusively by commission, normally 25% of the towing fee. The employer provided the tow truck with its name on the door and all other tools and materials necessary for the job. Similar to the present case, the claimant was permitted to keep the tow truck at his home and the employer would contact him with assignments by pager or telephone. The claimant was not permitted to use the tow truck for any entity other than the employer. The employer did not instruct the claimant as to what routes he took to get to the assignment, nor did it directly supervise the claimant as he towed the vehicles.
The claimant sustained an injury to his back while attempting to lift a large computer at the employer's premises and upon the employer's direction. The claimant filed a claim petition and the employer responded that the claimant was not an employee but an independent contractor. The WCJ agreed with the employer and denied the claimant's petition, citing the claimant's freedom to choose his routes and the employer's lack of direct supervision. However, the Board reversed and remanded for a determination of the amount of benefits due to the claimant. On appeal, this Court affirmed, concluding that the employer exercised substantial control over the claimant. In this regard, we described the claimant's freedom to choose his routes as "trivial" and emphasized the employer's ownership of the tow truck, the fact that the claimant was not allowed to use the tow truck to work for other parties, and the fact that the claimant was on call 24/7. Id. at 63. We noted that it was "the existence of the right to control the manner of Claimant's work which is critical, even when that right is not exercised." Id.
Because the record contains substantial evidence supporting the WCJ's finding that both DMT and MTI exercised some degree of control over Claimant's work and the manner of its performance such that it is impossible to distinguish one from the other for purposes of an employment relationship under the Act, the WCJ did not err in concluding that MTI was a joint employer of Claimant.
MTI also argues that the WCJ's 2013 findings were contradictory to, and inconsistent with, his previous unappealed findings of fact and cannot support a finding of an employee-employer relationship. More specifically, MTI argues that the WCJ was limited in his 2013 decision to making additional findings based upon new evidence submitted by the parties via stipulation in 2012, evidence which does not relate to MTI. However, MTI cites no authority for such a proposition and neither this Court's 2011 decision nor the Board's 2011 remand order restricted the extent of the WCJ's review. Indeed, this Court's remand was premised on a lack of findings regarding the degree and manner of control DMT and MTI exercised over Claimant and the necessary, probative testimony in this regard was provided at the June 28, 2007 WCJ hearing. Moreover, we note that this testimony fully supports the WCJ's 2013 findings.
Average Weekly Wage
Next, MTI argues that the WCJ improperly calculated Claimant's average weekly wage (AWW). Again, we disagree.
Section 309 of the Act sets forth the manner in which the AWW is to be calculated, providing in relevant part as follows:
Wherever in this article the term 'wages' is used, it shall be construed to mean the average weekly wages of the employe, ascertained as follows:
(a) If at the time of the injury the wages are fixed by the week, the amount so fixed shall be the average weekly wage;
77 P.S. §582(a)-(d.2). However, we have held that in situations where a claimant does not fit within this statutory framework, a claimant's AWW may be calculated by dividing the gross wages by the number of weeks worked. Burkhart Refractory Installation v. Workers' Compensation Appeal Board (Christ), 896 A.2d 9, 13 (Pa. Cmwlth.), appeal denied, 906 A.2d 1197 (Pa. 2006) (approving calculation of AWW by dividing gross wages by number of weeks worked where the claimant only worked for 12 weeks with no set number of work hours per week).(b) If at the time of the injury the wages are fixed by the month, the average weekly wage shall be the monthly wage so fixed multiplied by twelve and divided by fifty-two;
(c) If at the time of the injury the wages are fixed by the year, the average weekly wage shall be the yearly wage so fixed divided by fifty-two;
(d) If at the time of the injury the wages are fixed by any manner not enumerated in clause (a), (b) or (c), the average weekly wage shall be calculated by dividing by thirteen the total wages earned in the employ of the employer in each of the highest three of the last four consecutive periods of thirteen calendar weeks in the fifty-two weeks immediately preceding the injury and by averaging the total amounts earned during these three periods.
(d.1) If the employe has not been employed by the employer for at least three consecutive periods of thirteen calendar weeks in the fifty-two weeks immediately preceding the injury, the average weekly wage shall be calculated by dividing by thirteen the total wages earned in the employ of the employer for any completed period of thirteen calendar weeks immediately preceding the injury and by averaging the total amounts earned during such periods.
(d.2) If the employe has worked less than a complete period of thirteen calendar weeks and does not have fixed weekly wages, the average weekly wage shall be the hourly wage rate multiplied by the number of hours the employe was expected to work per week under the terms of employment.
Subsections (d.1) and (d.2) were added by the Act of June 24, 1996, P.L. 350.
In the present case, neither DMT nor MTI submitted a statement of wages following our remand of this matter. However, following this Court's 2011 remand decision, the parties stipulated to the submission of several exhibits before the WCJ, including Claimant's individual tax returns from 2003 to 2007, as well as his 2006 Form 1099 from Mellinger and DMT. MTI asserts that the WCJ should have relied on Claimant's 2005 tax return in calculating his AWW, the last full year that Claimant worked, which establishes an AWW of $674.98, with a corresponding compensation rate of $449.99. However, MTI presents no authority to support its assertion. Claimant contends that the WCJ's finding is correct and was calculated by dividing his gross earnings for 2006, $42,910.00, by 37 weeks, the number of weeks Claimant worked that year ($42,910.00 ÷ 37 = $1,159.72). We agree with Claimant that the WCJ's calculation was proper.
Claimant's 2006 tax return and Form 1099 actually revealed that he had a gross income of $49,410.00 in 2006, which would equate to an AWW of $1,335.51. However, such calculation would not affect Claimant's compensation rate, which was already at the maximum for 2006. --------
The record establishes that Claimant's wages were not fixed by the week, the month, or the year. He did not work a set number of hours each week, nor was he paid hourly. Claimant was paid a commission for each load he transported and his wages varied from year to year. Additionally, there is no evidence of Claimant's quarterly wages in the year preceding his work injury other than Claimant's tax returns and his 2006 Form 1099. The WCJ utilized the wages reflected on Claimant's most recent tax return and Form 1099, and the number of weeks that Claimant worked to earn those wages, in calculating Claimant's AWW. Because Claimant's AWW could not be calculated within the statutory framework of section 309 of the Act, and the WCJ's calculation was consistent with prior case law, we conclude that the WCJ properly calculated Claimant's AWW.
Claimant's Appeal
Extent of MTI's Insurance Coverage
Claimant argues that the Board erred insofar as it relied on an earlier finding by the WCJ that MTI's workers' compensation insurance policy only covered clerical office employees. However, MTI contends that Claimant waived this issue by not raising it in his 2008 appeal to the Board. We agree with MTI that this issue is waived.
In his original 2007 decision dismissing Claimant's claim petition, the WCJ noted NorGuard's allegation that the workers' compensation coverage it provided to MTI only covered clerical office employees and that, even if Claimant is determined to be an employee of MTI, he was not covered by the policy. The WCJ specifically found that "[a] contract of insurance between NorGuard and [MTI] provides workers' compensation insurance coverage from 2/13/2006 to 2/13/2007. The only classification of employees that appears in the contract is 'Clerical Office Employees.'" (S.R.R. at 460a.) We note that a review of the policy supports this finding by the WCJ. While Claimant appealed the WCJ's decision, he did not challenge this finding by the WCJ and, consequently, did not raise this issue before the Board. The law is well settled that issues not raised before the WCJ or the Board are waived and will not be addressed by this Court. Ross v. Workers' Compensation Appeal Board (International Paper), 859 A.2d 856, 859 (Pa. Cmwlth. 2004).
Accordingly, the order of the Board is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 8th day of May, 2015, the order of the Workers' Compensation Appeal Board, dated May 30, 2014, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge