Opinion
No. 580 C.D. 2011
03-22-2012
Cathie Reidenauer, Petitioner v. Workers' Compensation Appeal Board (CICA/Combined Insurance), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Cathie Reidenauer (Claimant) petitions for review of the Order of the Workers' Compensation Appeal Board (Board) affirming a Workers' Compensation Judge's (WCJ) determination that: (1) granted the Petition for Termination of Benefits (Termination Petition) of CICA/Combined Insurance (Employer); (2) dismissed as moot Employer's Petition to Modify Benefits (Modification Petition) and Petition to Review Compensation Benefits (Review Petition); (3) denied and dismissed Claimant's Petition for Penalties (Penalty Petition); and (4) provided that "Employer is entitled to a credit in the amount of overpayment of wage loss benefits made to Claimant to the extent wage loss benefits are paid to Claimant in the future." (WCJ's Order ¶¶ 1-4.) On appeal, Claimant does not challenge the termination of her benefits, but argues that the WCJ and Board erred in: failing to amend Claimant's Notice of Compensation Payable (NCP) to include an additional injury found to be work related during the proceedings; denying Claimant's Penalty Petition under Section 435(d)(i) of the Workers' Compensation Act (Act) where Employer acknowledged a violation of the Act; and finding that Claimant had an overpayment of benefits based on residual income she received after her work injury that was not included in her average weekly wage (AWW).
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. § 991(d)(i).
Claimant sustained a work injury in the nature of a sprain/strain to her right knee when a car door struck Claimant's knee on November 16, 2006, for which Employer accepted liability pursuant to a Notice of Temporary Compensation Payable, which converted into a NCP by operation of law. Claimant's AWW was calculated at $431.21 with a weekly compensation rate of $292.81. On November 20, 2008, Claimant filed a Petition to Review Compensation Benefits, asserting that her AWW and compensation rate were not correctly calculated; however, Claimant withdrew that petition, which the WCJ memorialized in an opinion dated July 8, 2009. Employer filed its Termination Petition on April 17, 2009, alleging that Claimant was fully recovered from her work injury and could return to unrestricted work. The Termination Petition was assigned to the WCJ, and Claimant filed an answer denying Employer's allegations. Claimant filed a second Petition to Review Compensation Benefits on April 29, 2009, alleging that the NCP's description of her injury was incorrect in that she sustained, inter alia, a medial meniscus injury to her right knee, and Employer filed an answer denying the allegations therein. Claimant also withdrew this petition, which the WCJ memorialized by opinion dated August 14, 2009. On July 10, 2009, Employer filed the Modification and Review Petitions, contending that: Claimant had received ongoing wages since November 16, 2006, without the benefit of Employer receiving credit for those payments; Claimant's ongoing wage loss benefits should be modified; Claimant's benefit status should be changed from total to partial; and Claimant received an overpayment for which Employer would be entitled to a credit. The Review and Modification Petitions also were assigned to the same WCJ, and Claimant filed answers denying Employer's contentions. On November 3, 2009, Claimant filed her Penalty Petition, asserting that the compensation rate based on her AWW was incorrect and that Claimant was entitled to a higher compensation rate, to which Employer filed an answer denying that penalties were warranted in this situation. (WCJ's Decision at 1-2, Findings of Fact (FOF) ¶¶ 1-4.)
1. WCJ Hearings
Multiple hearings were held before the WCJ and, at the June 8, 2009, hearing, Employer's counsel "acknowledged that [Employer's] independent medical evaluator, [Charles R. Levine, M.D.], acknowledged a description of injury consistent with a meniscal tear of the right knee and that inasmuch as Dr. Levine's opinion includes a meniscal tear, Employer would stipulate to this additional description of the injury." (FOF ¶ 5.) With regard to the Termination Petition, Employer presented Dr. Levine's deposition testimony in which he indicated that Claimant: sustained a right knee injury that included a medial meniscal tear; underwent surgery for the meniscal tear; and was fully recovered from her work-related injury and capable of returning to work without restrictions. Claimant offered her own testimony, as well as the deposition testimony of her treating physician, Robert W. Mauthe, M.D., who opined that Claimant sustained not only a medial meniscal tear to her right knee, but other injuries, and that Claimant was still incapable of returning to work. The WCJ rejected Claimant's testimony as not credible. The WCJ credited Dr. Levine's testimony over Dr. Mauthe's testimony and, therefore, found that Employer had satisfied its burden of proving entitlement to the termination of Claimant's benefits. (FOF ¶¶ 6, 9, 10(b); Conclusion of Law (COL) ¶ 3.)
In support of its Modification and Review Petitions, Employer offered the deposition testimony of George Elmer, Employer's assistant vice president and director of field human resources. Mr. Elmer testified as follows. Claimant, as a sales manager, did not receive a salary, but was compensated through commissions, which included first year commissions, overrides, and renewal or residual commissions. First year commissions were earned by sales people, including Claimant, in the year the policies were sold; overrides were based on policies sold by both Claimant and her team of sales people; and residual commissions were paid to the employee who sold the policy in the past, based on a percentage of premium payments, and are paid regardless of whether the employee is on leave or working. Claimant continued to receive the residual income for the renewal of policies that she had sold in the past after she went out of work due to her injury on November 16, 2006. In calculating Claimant's AWW, Employer included only Claimant's first year commissions and overrides, and did not include Claimant's residual income because Employer would continue paying her that income while she was off work. (Elmer Dep. at 47, 52, R.R. at 489a, 494a.) The amount of residual income Claimant received between November 16, 2006, and July 19, 2009, was $22,790.83. (FOF ¶ 7; COL ¶ 5.)
Claimant essentially agreed with Mr. Elmer's testimony regarding the residual payments that she received between November 16, 2006, and July 19, 2009, that she had received residual income during the year prior to her work injury, and that this income was not included in her AWW. Claimant stated that she did not have to do any work for the residual payments that she received while off work and that, because she is vested with Employer, she will continue to get residual payments for as long as a previously sold policy stays on the books. Noting that Claimant's testimony did not differ from Mr. Elmer's testimony in any substantial way, the WCJ found Mr. Elmer's testimony credible and persuasive, and adopted that testimony as the facts in this matter. (FOF ¶¶ 7, 8(c), 10(c); COL ¶ 5.)
With regard to the Penalty Petition, Claimant's counsel explained that Employer was violating the Act because, in calculating Claimant's compensation rate in the NCP, Employer failed to comply with the Section 306(a)(1) of the Act, 77 P.S. § 511(1), which provides that if a claimant's compensation rate is less than 50% of the Statewide AWW, the claimant's compensation rate is to be the lesser of 50% of the Statewide AWW or 90% of the claimant's AWW. Here, according to Claimant's counsel, Employer simply calculated and paid Claimant a compensation rate at 66 2/3% of her AWW, an amount less than 50% of the Statewide AWW, which is contrary to the Act. Moreover, Claimant's counsel indicated that he withdrew the first Review Petition because Employer's counsel agreed to pay Claimant the correct compensation rate, but that change had not been forthcoming. Employer's counsel agreed with Claimant's counsel for the most part and acknowledged that Claimant's compensation rate on the NCP was incorrect; however, Employer stated that, even if Claimant was paid at the higher rate, it would only have increased her overpayment. (Hr'g Tr. at 11-12, 17-18, November 2, 2009, R.R. at 213a-14a, 219a-20a.)
2. WCJ's Determination
After reviewing the evidence and based on his credibility determinations, the WCJ found, in relevant part, that Claimant continued to receive payments from Employer, i.e., the residual income, following her November 16, 2006, work injury. (FOF ¶ 11(b).) Citing Section 306(b) of the Act, 77 P.S. § 512(1), which states that "partial disability shall be sixty six and two third percent of the difference between claimant's pre-injury average weekly wage and the earning power of the claimant after the injury," the WCJ concluded that Employer established that Claimant had "received income, i.e., the equivalent of earning power, in the amount of $22,790.83" and had received various payments from Employer between November 16, 2006, and November 19, 2009. (COL ¶¶ 4-5 (emphasis added).) Accordingly, the WCJ concluded that "Claimant has received an overpayment of wage loss benefits in the amount of $15,735.75 between November 16, 2006, and July 19, 2009." (COL ¶ 5.) The WCJ "concluded, as a matter of law, that Employer met its burden of proof in order to entitle it to a termination of workers' compensation benefits. As such, the Modification Petition and Review Petition [] filed by Employer are rendered moot." (COL ¶ 6.) The WCJ dismissed the Modification and Review Petitions as moot but, nonetheless, in his order, directed "that: . . . Employer is entitled to a credit in the amount of overpayment of wage loss benefits made to Claimant to the extent wage loss benefits are paid to Claimant in the future." (Order ¶¶ 2, 4.) Additionally, the WCJ denied the Penalty Petition because
this Judge concluded, as a matter of law, that the residual commissions Claimant had been receiving . . . should be included as earning power attributable to Claimant subsequent to the date of injury and[,] therefore, Claimant has, in fact, received more in wage loss benefits than she should have been paid. As such, Claimant would be due no additional weekly wage loss benefits at this time and as such, this Judge concludes that no penalty is to be assessed.(COL ¶ 8.)
3. Board's Determination
Claimant appealed to the Board, arguing that the WCJ erred in denying the Penalty Petition, in not amending the NCP to include the meniscal tear, in granting the Modification Petition, and in finding an overpayment. The Board rejected the first allegation of error, stating that Claimant did not prove that Employer violated a particular section of the Act because she did not file a review petition to correct the compensation rate and that, without any documentation, such as a WCJ's order or amended NCP, Employer had no obligation to pay anything other than the amount listed in Claimant's NCP. The Board found no error with respect to the WCJ not amending the NCP to include the meniscal tear because, notwithstanding that such amendment can occur during any proceeding, the WCJ did not have any obligation to look "beyond the relief requested in the pleadings." (Board Op. at 6 (citing Continental Insurance Group v. Workmen's Compensation Appeal Board (Gerbino), 638 A.2d 419 (Pa. Cmwlth. 1994).) Finally, the Board rejected Claimant's contention that the WCJ granted the Modification Petition, holding that the WCJ did not grant that petition, but dismissed it as moot. The Board concluded that the WCJ was correct in dismissing the Modification Petition as "moot because it dealt with Claimant's disability status and receipt of benefits into the future. However, all of Claimant's benefits were terminated as of February 23, 2009, and[,] therefore, any determination concerning Claimant's status and benefits after that date was made unnecessary." (Board Op. at 5-6.)
Claimant also asserted that the WCJ erred by not addressing a Petition for Review seeking to add multiple injuries to the NCP that Claimant filed on or about March 2, 2010, in the WCJ's March 17, 2010, opinion. This March 2010 Petition for Review was ultimately assigned to the WCJ, who issued an order on June 30, 2010, denying the petition on the principles of res judicata. Claimant did not appeal that determination, although she argues before this Court that the WCJ should have addressed this petition in his March 17, 2010, opinion. We note that the March 2010 Petition for Review is not in the certified record, but Claimant included it, along with the WCJ assignment memo, in the Reproduced Record at pages 403a-06a. Moreover, the June 30, 2010, decision and order denying the petition also is not in the certified record, but Employer included it in its Supplemental Reproduced Record at pages 25b-32b. Neither party objects to the inclusion of these documents, and their inclusion does not affect our holding in this matter.
Claimant now petitions this Court for review, arguing that the WCJ erred: (1) in not amending the NCP to include the additional injury Employer acknowledged as being work related; (2) denying the Penalty Petition where Employer acknowledged a violation of the Act; and (3) finding that Claimant had an overpayment of benefits based on residual income she received after her work injury that was not included in her AWW. We address each argument in turn.
"Our 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." Sysco Food Services of Philadelphia v. Workers' Compensation Appeal Board (Sebastiano), 940 A.2d 1270, 1273 n.1 (Pa. Cmwlth. 2008).
Claimant first argues that the WCJ erred when he failed to amend Claimant's recognized work injury to include a meniscal tear of the right knee where Employer acknowledged on the record that her injury should be amended to include the tear and the WCJ made the following finding of fact:
5. At the hearing held before this [WCJ] on June 8, 2009, counsel for [the] Employer acknowledged that their independent medical evaluator, Dr. Levine, acknowledged a description of injury consistent with a meniscal tear of the right knee and that inasmuch as Dr. Levine's opinion includes a meniscal tear, Employer would stipulate to this additional description of injury.(FOF ¶ 5.) Citing Cinram Manufacturing, Inc. v. Workers' Compensation Appeal Board (Hill), 601 Pa. 524, 975 A.2d 577 (2009), Claimant asserts that the WCJ could, if the record warranted, amend the description of the injury during any type of proceeding, i.e., modification, termination, or review, because the modification to the NCP would be "corrective" in nature in that the description of her injury was incorrect at the time the NCP was issued. Claimant further contends that the WCJ should have addressed the Review Petition she filed on February 26, 2010, which was assigned to a WCJ on March 2, 2010, requesting the addition of, inter alia, the meniscal tear in his March 17, 2010, determination.
In Cinram Manufacturing, our Supreme Court held that "[c]orrective amendments are covered by the first paragraph [of Section 413(a)], codified at . . . 77 P.S. § 771, which applies only in circumstances in which there was an inaccuracy in the identification of an existing injury." Cinram Manufacturing, 601 Pa. at 530-31, 975 A.2d at 580-81. The Supreme Court explained that, "[i]mportantly, [the first paragraph of] Section [413(a)] specifies that amendments under its terms may be made 'in the course of the proceedings under any petition pending before [the] workers' compensation judge.'" Cinram, 601 Pa. at 531, 975 A.2d at 581 (emphasis in original). "Thus, it is apparent that the Legislature intended to allow corrective amendments at any time and in any procedural context." Id. However, the Supreme Court "noted that the language of Section 413(a) is discretionary-a workers' compensation judge 'may' at any time correct a notice of compensation payable. 77 P.S. § 771." Cinram, 601 Pa. at 533, 975 A.2d at 582 (emphasis added). Accordingly, the Supreme Court explained that there could be circumstances where it would be inappropriate for a WCJ to order a corrective amendment to an NCP, such as in a termination proceeding or where principles of due process would be violated in doing so. Id. Moreover, in Continental Insurance, this Court held that Section 413(a) "does not impose upon the [WCJ] the burden of looking beyond the relief requested in the pleadings. The [WCJ] is required only to consider matters properly raised." Continental Insurance, 638 A.2d at 421.
The first paragraph of Section 413(a) states:
A workers' compensation judge may, at any time, review and modify or set aside a notice of compensation payable and an original or supplemental agreement or upon petition filed by either party with the department, or in the course of the proceedings under any petition pending before such workers' compensation judge, if it be proved that such notice of compensation payable or agreement was in any material respect incorrect.77 P.S. § 771 (emphasis added).
However, the Supreme Court cautioned that, "in applying their discretion, [WCJs] must remain cognizant of the remedial purposes of the . . . Act." Cinram, 601 Pa. at 533 n.7, 975 A.2d at 582 n.7.
Here, as Employer notes, the record reveals that there was no pending petition filed by Claimant requesting that the WCJ add the injury to the NCP. Moreover, Claimant has cited no cases, and our research has found none, in which this Court has ordered a WCJ to amend a NCP in the absence of such a petition. Pursuant to Cinram and Continental Insurance, the WCJ's decision to amend an NCP, or not, is within the WCJ's sound discretion, and the WCJ is not required to order relief that is not properly raised. Cinram, 601 Pa. at 533, 975 A.2d at 582; Continental Insurance, 638 A.2d at 421. Given these parameters and what the WCJ was presented with in this matter, we conclude, as the Board did, that the WCJ did not abuse his discretion in declining to "officially" amend the NCP.
We note that, as mentioned above, Claimant filed a Review Petition in March 2010, in which she requested amendment to the NCP; that petition relied on the same evidence as presented in the present matter, was filed after the close of the record in the present case, and was not, it appears from the record, requested to be consolidated with the present matter. (Petition to Review Compensation Benefits, March 2, 2010, R.R. at 403a-05a.) The WCJ, ultimately, denied that Review Petition in a June 30, 2010, order pursuant to res judicata. (WCJ Decision and Order, June 30, 2010, S.R.R. at 25b-32b.) Claimant did not appeal that determination and does not reference the June 30, 2010, decision in any of her materials.
Claimant next argues that the WCJ erred in denying her Penalty Petition because it is undisputed that Employer issued a NCP that listed Claimant's AWW as $431.21 with a compensation rate of $292.81 (66 2/3% of $431.21), and that Claimant's compensation rate should have been $377.50 pursuant to the Bureau of Workers' Compensation's rate schedule, which is based on Section 306(a)(1) of the Act, 77 P.S. § 511(1). Claimant notes that Employer acknowledged this fact during the hearings before the WCJ. According to Claimant, because Employer did not pay her compensation benefits at the rate required, Employer violated the Act and the WCJ should have granted the Penalty Petition and awarded a penalty. Employer responds that the WCJ properly denied the Penalty Petition because Claimant did not prove that Employer violated the Act where Employer paid the amount on the NCP, and there was never an amended NCP or WCJ determination pursuant to a review petition that required Employer to pay anything other than the amount listed on the NCP.
Section 306(a)(1) of the Act provides:
The following schedule of compensation is hereby established:77 P.S. § 511(1) (emphasis added).
(1) For total disability, sixty-six and two-thirds per centum of the wages of the injured employe as defined in section 309 beginning after the seventh day of total disability, and payable for the duration of total disability, but the compensation shall not be more than the maximum compensation payable as defined in section 105.2. Nothing in this clause shall require payment of compensation after disability shall cease. If the benefit so calculated is less than fifty per centum of the Statewide [AWW], then the benefit payable shall be the lower of fifty per centum of the Statewide [AWW] or ninety per centum of the workers' [AWW].
Section 435(d)(i) of the Act, 77 P.S. § 991(d)(i), states:
(d) The department, the board, or any court which may hear any proceedings brought under this [A]ct shall have the power to impose penalties as provided herein for violations of the provisions of this [A]ct or such rules and regulations or rules of procedure:
Id. Claimant bears the initial burden of proving that Employer violated a provision of the Act and, if met, the burden shifts to Employer to prove that it did not violate the Act. Gumm v. Workers' Compensation Appeal Board (Steel), 942 A.2d 222, 232 (Pa. Cmwlth. 2008). The question of whether there has been a violation of the Act is a question of law that is fully reviewable by this Court. City of Philadelphia v. Workers' Compensation Appeal Board (Sherlock), 934 A.2d 156, 159 n.5 (Pa. Cmwlth. 2007). Once a violation has been found, the imposition and amount of penalties are matters for the WCJ's discretion. Id. at 160. "Absent an abuse of discretion by the WCJ, this [C]ourt will not overturn a WCJ's" award or non-award of penalties. Id. at 161. "An abuse of discretion is not merely an error of judgment but occurs when the law is misapplied in reaching a conclusion." Id. Moreover, a WCJ is not required to assess penalties even if the WCJ determines that an employer violated the Act. Galizia v. Workers' Compensation Appeal Board (Woodloch Pines, Inc.), 933 A.2d 146, 154 (Pa. Cmwlth. 2007).(i) Employers and insurers may be penalized a sum not exceeding ten per centum of the amount awarded and interest accrued and payable: Provided, however, That such penalty may be increased to fifty per centum in cases of unreasonable or excessive delays. Such penalty shall be payable to the same persons to whom the compensation is payable.
Claimant argues, essentially, that she established that Employer violated Section 306(a)(1) of the Act because Employer acknowledged that violation during the hearing. At the hearing, Claimant's counsel indicated that he withdrew Claimant's 2009 Review Petition, seeking a review of, inter alia, Claimant's AWW, because:
[Claimant's Counsel (CC)]: [he] had an agreement with [Employer's counsel] that [Employer] would correct the payment to [Claimant], because they were paying her at a two-thirds rate rather than the one-half rate of the max comp[ensation]. . . . It should have been [$]377.50. And he indicated that they would pay at the correct rate while we litigated the issue of what the average weekly wage should be. They haven't done that yet.(Hr'g Tr. at 11-12, November 2, 2009, R.R. at 213a-14a (emphasis added).)
. . . .
[Employer's counsel (EC)]: . . . I think [Claimant's counsel is] mostly correct. . . . I do agree that for the average weekly wage listed on the []NCP, statutorily it is a higher weekly compensation payable rate. . . . [T]he problem I have is, if my position in this matter is correct and there has been an overpayment based upon earnings after the date of [the] injury, there may be an overpayment in this matter and if we begin to pay a higher compensation rate, it may do nothing more than continue to drive the overpayment up. . . . I am agreeable that for the average weekly wage as listed on the []NCP, the weekly compensation rate should not be [$]292.81, which is what is listed on that document.
However, we agree with Employer that Claimant did not prove Employer violated the Act. As the Board noted in its decision, there has been no decision, order, or amended NCP that obligated Employer to pay Claimant anything more than what is contained in the NCP. Although Claimant's counsel contended that he withdrew the 2009 Review Petition based on certain representations by Employer's counsel, there was nothing in writing to alter Employer's obligation set forth in the NCP. Without the 2009 Review Petition, there was nothing for the WCJ to consider when determining whether Claimant's AWW and compensation rate were accurate. Finally, although the record is far from clear in this matter as to what Claimant should have been paid, it appears, as observed by both the WCJ and the Board, that Claimant received some overpayment of benefits regardless of what her AWW or compensation rate would have been. Accordingly, we affirm the order of the Board upholding the denial of Claimant's Penalty Petition.
Finally, Claimant argues, inter alia, that the WCJ erred in treating the residual income she received after she left work due to her injury as earnings for which Employer was entitled to a credit where Employer did not include the residuals earned in the year prior to her work injury in Claimant's AWW. Employer responds, in relevant part, that Claimant's arguments are without merit because the WCJ dismissed its Modification and Review Petitions as moot because he granted the Termination Petition.
Employer is correct that the WCJ dismissed the Modification and Review Petitions as moot and, therefore, any determination as to a modification of Claimant's benefit status from total to partial or an overpayment made on Employer's part is merely dicta. However, despite the apparent dismissal of the Modification and Review Petitions, the WCJ appears to have concluded that Section 306(b) (partial disability) applied in this matter and that Claimant received an overpayment of wage loss benefits in the amount of $15,735.75. (COL ¶¶ 4-5.) Although recognizing that his determination of total recovery rendered these conclusions moot, the WCJ, nevertheless, directed in his Order that "Employer is entitled to a credit in the amount of overpayment of wage loss benefits made to Claimant to the extent wage loss benefits are paid to Claimant in the future." (COL ¶ 6, Order ¶ 4.) Because we conclude that the WCJ properly dismissed the Modification and Review Petitions as moot based on the grant of Employer's Termination Petition, thereby ending Claimant's entitlement to benefits, the WCJ's discussions of any change in disability status, overpayment Claimant received, or credit to which Employer possibly would be entitled in the future were in error. Thus, we modify the WCJ's decision and Order by striking Conclusions of Law 4 and 5 and paragraph 4 of the WCJ's Order. If, at some time in the future, Claimant were to prove her entitlement to a reinstatement of benefits, the parties will have to determine at that time what, if any, overpayment Claimant received and how much of a credit, if any, Employer would be entitled to receive.
We note that the record presently before this Court is far from clear as to what Claimant's AWW should have been and what Claimant's overpayment would have been depending on the proper AWW. For example, the WCJ concluded that the overpayment was $15,735.75. (COL ¶ 5.) We question whether there would be substantial evidence in the record to support that holding, particularly where Employer's counsel actually offered into evidence his attempt to calculate Claimant's AWW using her residual income, to which he stipulated, stating that there would be an overpayment of approximately $2,000 if the higher AWW was used. (Hr'g Tr. at 14-16, R.R. at 216a-18a; Employer Ex. 5, R.R. at 298a-99a.) --------
Accordingly, the WCJ's Order is hereby modified in accordance with the foregoing opinion, and we affirm the Board's Order upholding the WCJ's Order granting the Termination Petition, denying the Penalty Petition, and dismissing as moot the Modification and Review Petitions.
/s/ _________
RENÉE COHN JUBELIRER, Judge Judge McCullough did not participate in the decision in this case. ORDER
NOW, March 22, 2012, the Order of the Workers' Compensation Judge (WCJ) in the above-captioned matter is hereby MODIFIED in accordance with the foregoing opinion. Additionally, we AFFIRM the Order of the Workers' Compensation Appeal Board that upholds the WCJ's Order granting the Petition to Terminate Benefits, denying the Petition for Penalties, and dismissing as moot the Petition to Modify Benefits and Petition to Review Compensation Benefits.
/s/ _________
RENÉE COHN JUBELIRER, Judge