Opinion
No. 2441 C.D. 2008.
Submitted: May 8, 2009.
Filed: July 28, 2009.
BEFORE: McGINLEY, Judge; JUBELIRER, Judge; FLAHERTY, Senior Judge.
OPINION NOT REPORTED
Tom Pipino (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) affirming a decision of Workers' Compensation Judge (WCJ) Karen Wertheimer denying his Reinstatement Petition filed against the City of Philadelphia (Employer). We affirm.
Claimant sustained an injury in the course and scope of his employment on August 10, 1987. Pursuant to a 1991 decision of Referee Irvin Stander, he was awarded workers' compensation benefits. Referee Stander's order is silent concerning the nature of Claimant's work-related injuries. Nonetheless, he made the following findings of fact:
WCJs were previously known as "referees." City of Philadelphia v. Workers' Compensation Appeal Board (Andrews), 948 A.2d 221, 231, fn. 5 (Pa.Cmwlth. 2008).
5. Dr. Arnold Gerber . . . testified that Claimant has chronic lumbar strain and sprain with discogenic disease of L-4 and L-5, and psychogenic overlay, which is caused by his work injury of August 10, 1987, and which continues to render the Claimant totally disabled from fire fighting duties, and from performing a desk job . . .
6. Dr. Andrea Hanaway . . . found Claimant to be "permanently and partially disabled" from the performance of his duties as a fire officer by reason of a herniated nucleus pulposus L-4 and L-5, with radicular pain.
(Dec. dated 3/20/91, pp. 2-3).
A Supplemental Agreement was executed indicating a status change to partial disability as of April 1, 1997 based upon a return to work with an alternative employer, Karen Hartford Insurance Agency (Hartford). Claimant stopped working for that employer in August of 2003. Claimant filed a Reinstatement Petition seeking a resumption of total disability as of December 6, 2005.
Claimant testified that he worked for the Philadelphia Fire Department and hurt his back while lifting fifty-five-gallon drums of foam. He returned to work for Employer in 1989 but stopped working for Employer again in 1990. Subsequently, he obtained work with Hartford photographing houses for insurance purposes. He later did desk work. According to Claimant, he stopped working for Hartford in August of 2003. He stated his back pain became too great and he was experiencing problems with his legs and fingers. Claimant specified that he began getting pain in his neck and back just by using the phone. He had anxiety attacks that seemed never-ending. Claimant agreed no particular incident happened in August of 2003. Rather, his condition had progressively gotten worse to the point he felt that he could no longer work. He did not recall exactly if he saw his treating physician, Joseph DiRenzo, D.O., in 2003. Claimant stated he was referred to a neurosurgeon at one point, but was unaware of the time frame.
At a hearing held January 19, 2006, the following discussion took place:
Q. Do you know of any work available that exists that you are physically capable of doing, consistent with the disability arising out of your work injury?
A. Not that I know of.
Q. If you were to find out about such work, would you be willing to give it a try?
A. I might give it a try, yeah. (Emphasis added).
Reproduced Record (R.R.) at 10-11b.
Subsequently, at that same hearing, the following transaction took place:
Q. Now, you told Judge Simmons that you believe that you are capable of doing some work?
A. I will try. I don't know how I would do it.
Although the January 19, 2006 hearing was heard before WCJ Simmons, the decision in this matter was authored by WCJ Wertheimer.
R.R. at 27b.
Claimant presented the testimony of Joseph DiRenzo, Jr., D.O., board certified in family medicine, who began treating Claimant in December of 1994. Dr. DiRenzo noted Claimant's work injury but indicated that, as Claimant's family doctor, he treats Claimant's other ailments as well. Dr. DiRenzo opined that Claimant's current diagnoses attributable to his work injury are neuropathy, depression, anxiety, and a herniated disc. He explained that as of his most recent examination in March of 2006, Claimant was completely disabled. Dr. Direnzo explained that he was aware Claimant had not been working for several years, but he had no knowledge of a leave date in August of 2003 until the day of his deposition, March 3, 2006.
Dr. DiRenzo examined Claimant's back on October 15, 2001. Dr. DiRenzo did not see Claimant for back pain again until January 15, 2004. He saw Claimant one time in 2002 for leg pain. He indicated Claimant's symptomology remained consistent. Dr. DiRenzo acknowledged that he made no notations concerning Claimant's depression in Claimant's chart between 1998 and 2004. His office, however, did continue to fill prescriptions. Dr. DiRenzo wrote a report on June 2, 2005 saying Claimant is totally disabled from all work. He did not write any note taking Claimant out of work in either 2003 or 2004.
According to Dr. DiRenzo, Claimant is currently prescribed Neurontin, Xanax, and Zoloft. Claimant was put on Neurontin in 2004. He had a negative reaction to Neurontin and other medicines were tried out. But, he is again on the drug. Claimant, per Dr. Direnzo, has been on Xanax for ten years. He was on Xanax both before he left work in August of 2003 and after he left work. Claimant, per Dr. DiRenzo, was put on Zoloft in 2004 because his depression worsened.
Claimant submitted the report of Gladys Fenichel, M.D., dated April 14, 2006. Dr. Fenichel opined that Claimant requires ongoing treatment with Xanax and that the addition of Zoloft is helpful to control Claimant's anxiety symptoms. She was unable to opine that Claimant was fully recovered from the psychological symptoms that were part of Claimant's accepted work injury. This is because she did not have enough information in terms of history, nor did she have any specific documentation of the exact nature of Claimant's judicially accepted work injuries.
Employer presented the testimony of Ira Sachs, D.O., board certified in orthopedic surgery, who examined Claimant on February 24, 2006. At that time, Claimant had complaints of back, neck, and leg pain. Following review of Claimant's medical history, including review of medical records, and a performance of the physical examination, Dr. Sachs diagnosed Claimant with mild cervical and lumbar discogenic disease, chronic pain syndrome, anxiety, and depression. He further diagnosed a resolved cervical and lumbosacral sprain and strain. According to Dr. Sachs, the resolved lumbosacral sprain was directly attributable to the work injury. He explained he found no evidence of radiculopathy or disc syndrome. He acknowledged discogenic disease was present, but stated that it was age appropriate. Dr. Sachs believed Claimant was fully recovered from his work-related physical injuries. As far as Claimant's physical condition, including his discogenic disease, Dr. Sachs believed Claimant was capable of working. He saw nothing in the medical records to indicate a worsening of Claimant's back condition in August of 2003. He would not render an opinion on causation regarding Claimant's anxiety and depression.
In a decision circulated February 29, 2008, WCJ Wertheimer rejected Claimant's testimony and that of Dr. DiRenzo. She credited the testimony of Dr. Sachs. As a result of these credibility determinations, the WCJ denied Claimant's Reinstatement Petition. The WCJ added that she reviewed the report of Dr. Fenichel and noted that there was no indication therein that there was any change in status prohibiting Claimant from working in the position he had with Hartford through August of 2003. According to the WCJ, this report was considered for the sole purpose of determining whether Employer presented an unreasonable contest. The WCJ found this report did not establish Employer's contest was unreasonable. Claimant appealed the WCJ's decision to the Board. The Board affirmed in an opinion dated December 23, 2008. This appeal followed.
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.DeGraw v. Workers' Compensation Appeal Board (Redner's Warehouse Mkts., Inc.), 926 A.2d 997 (Pa.Cmwlth. 2007). On appeal, the prevailing party below is entitled to all inferences that can be reasonably drawn from the evidence. Krumins Roofing Siding Co. v. Workmen's Compensation Appeal Board (Libby), 575 A.2d 656 (Pa.Cmwlth. 1990).
Claimant argues on appeal that the WCJ capriciously disregarded testimony in arriving at her determination to deny Claimant's Reinstatement Petition. Claimant further contends that Dr. Sachs' testimony was incompetent because he failed to recognize Claimant's discogenic disease as part of Claimant's 1987 work injury.
The term "disease" would seem to indicate that discogenic disease is a degenerative condition or part of the aging process rather than something arising from trauma. Nonetheless, it has been held that a WCJ is not permitted to substitute his own medical knowledge or opinions in making his ruling and must make findings based on the evidence contained in the record. Zeigler v. Workers' Compensation Appeal Board (Jones Apparel Group, Inc.), 728 A.2d 421 (Pa.Cmwlth. 1999). If Dr. Gerber credibly testified that Claimant's discogenic disease was "caused by" his 1987 work injury, Referee Stander was bound to follow that opinion perZeigler. We point out that Employer does not challenge the fact that Claimant sustained discogenic disease as part of his 1987 injury. (Respondent's brief, p 30).
In addressing Claimant's arguments, it is imperative to recognize that it was Claimant, not Employer who had the burden in this case. See Dillon v. Workmen's Compensation Appeal Board (Greenwich Collieries), 640 A.2d 386 (Pa.Cmwlth. 1994) (holding that one's capacity to work and the availability of work affect the extent of an injured employee's loss of earning power and that disability may change from partial to total or vice versa based on a change in one with or without a change in the other). When a claimant leaves his post-injury job, he has the burden to show that he left due to his disability and that his loss of earnings is through no fault of his own to obtain a reinstatement of benefits. Beattie v. Workmen's Compensation Appeal Board (Liberty Mutual Ins. Co.), 713 A.2d 187 (Pa.Cmwlth. 1998). When the claimant has the burden of proof, the employer is under no obligation to present any evidence. See e.g., Bonegre v. Workers' Compensation Appeal Board (Bertolini's), 863 A.2d 68 (Pa.Cmwlth. 2004) (holding that an employer is under no obligation to submit evidence in a claim petition as the claimant bears the burden of proof).
Upon review, we see no error in WCJ Wertheimer's determination to deny Claimant's Reinstatement Petition. Claimant worked for approximately six years for Hartford prior to leaving in August of 2003. Pursuant to bothDillon and Beattie, Claimant had the burden to show that through no fault of his own, his work-related disability resulted in a loss of earnings.
The WCJ rejected Claimant's testimony for numerous reasons. She indicated Claimant's testimony was devoid of any indication of how his physical or mental complaints impeded his ability to work and that he failed to establish a worsening of his condition. The WCJ further indicated Claimant failed to show any change in his medications and medical care in "August of 2003 and thereafter." (Dec. dated 2/29/08, p. 3). The WCJ added that Claimant was a poor historian inasmuch as he did not know if he saw Dr. DiRenzo when he stopped working or if he was medically advised to stop working. She found it particularly compelling that Claimant initially indicated he "might" try work that he was physically capable of doing before testifying that he did not know what type of work he could do. The WCJ found Claimant's testimony to indicate nothing more than that he voluntarily quit his job.
The WCJ further rejected the opinions of Dr. DiRenzo. Significant to this determination is that Dr. DiRenzo did not remove Claimant from work and, moreover, he did not know when Claimant stopped working. He did not treat Claimant for his work injury for a year and a half prior to Claimant's cessation of work in August of 2003. He had no reference to any treatment for his psychological condition in his medical notes between 1998 and 2004. The WCJ credited Dr. Sachs' testimony. Because the WCJ rejected both Claimant and Dr. DiRenzo's testimony, Claimant was unable to meet his burden of proof in the Reinstatement Petition.
Claimant challenges, however, that contrary to the WCJ's findings, he did testify that he had a worsening of his condition. Moreover, he specified that he began to get pains in his back and neck from just using the phone. Further, he points out he testified that he was getting frequent anxiety attacks. Claimant contends that the WCJ's seizing of his word usage that he "might" try work within his physical capabilities if such work was available as an indication that he really had no desire to return to work is an appropriate attempt to take his statements out of context. Rather, he states that his testimony as a whole indicates that he would be willing to work if he could but can imagine no work that he is capable of performing given his work-related injury. Claimant recognizes that he is a poor historian. But, he believes that it is difficult to imagine he would be able to anticipate every question asked during hearings and to provide all dates with accuracy in light of the twenty years that have passed since his work-related injury.
In regard to Dr. DiRenzo's testimony, Claimant states that despite WCJ Wertheimer's finding that Dr. DiRenzo made no reference to treatment for a psychological condition in his notes at any time between 1998 and 2004, Dr. DiRenzo testified that he had regularly prescribed Xanax before 1998 and through 2004 and increased his medications to include Zoloft after Claimant stopped working. He also points out that he was put on Neurontin in 2004. Further, he contends that because Dr. Sachs would not comment on Claimant's mental injuries, Dr. DiRenzo's opinions concerning Claimant's psychological overlay were uncontradicted.
Where the WCJ's findings reflect a deliberate disregard of competent evidence that logically could not have been avoided in reaching a decision, those findings represent a capricious disregard of competent evidence. Pryor v. Workers' Compensation Appeal Board (Colin Serv. Sys.), 923 A.2d 1197 (Pa.Cmwlth. 2006). A review for a capricious disregard of evidence, however, is not to be applied in such a manner that intrudes upon the fact-finding role. Leon E. Wintermyer v. Workers' Compensation Appeal Board (Marlowe), 571 A.2d 189, 812 A.2d at 478 (2002). A WCJ is not required to accept uncontradicted testimony as true but when such evidence is rejected, the WCJ must explain her reasons for doing so. Pryor, 923 A.2d at 1205 (Pa.Cmwlth. 2006). It should remain a rare instance that an appellate body would disturb an adjudication based upon the capricious disregard of material, competent evidence. Williams v. Workers' Compensation Appeal Board (USX Corp.), 862 A.2d 137 (Pa.Cmwlth. 2004).
A WCJ is free to accept or reject, in whole or in part, the testimony of any witness. Greenwich Collieries v. Workmen's Compensation Appeal Board (Buck), 664 A.2d 703 (Pa.Cmwlth. 1995). Her credibility determinations are not reviewable by this Court. Campbell v. Workers' Compensation Appeal Board (Pittsburgh Post Gazette), 954 A.2d 726 (Pa.Cmwlth. 2008). A party may not challenge or second-guess the WCJ's reasons for the credibility determinations rendered. Dorsey v. Workers' Compensation Appeal Board (Crossing Constr. Co.), 893 A.2d 191 (Pa.Cmwlth. 2006). Indeed, determining the credibility of a witness is the quintessential function of the fact finder. It is not an exact science, and the ultimate conclusion comprises far more than a tally sheet of its various components. Id. at 195.
Claimant admirably attempts to establish that the WCJ capriciously disregarded evidence and/or that the contents of the record are contrary to the bases for her credibility determination. Focusing first on the medical testimony, we recognize that Claimant correctly asserts that Dr. Direnzo prescribed Xanax between 1998 and 2004. Dr. Direnzo did testify, however, that he made no notes in Claimant's chart regarding depression or psychological overlay during this time period as relied upon by the WCJ. Moreover, despite Claimant's claims that his physical and mental injuries progressively worsened to the point he stopped working in August of 2003, his treating physician did not examine him for a year and a half prior to Claimant leaving Hartford. Taking these facts in concert with Dr. Direnzo's admissions that he did not know when Claimant stopped working and that he did not issue a note taking claimant out of work in either 2003 or 2004, the WCJ, as per her discretion, Buck, had a basis in the record to find that Dr. Direnzo lacked credibility.
We recognize that WCJ Wertheimer, albeit when rendering a credibility determination concerning Claimant's testimony, stated Claimant did not testify to any change in medical treatment or medications after 2003. Further, we note that Dr. Direnzo explained that Claimant was put on Neurontin and Zoloft in 2004. However, inasmuch as the party prevailing below is entitled to all reasonable inferences, Libby, we do not find reversible error on this issue. Claimant's testimony was silent or any change in medical treatment or medications even after he stopped working for Hartford. Further, at minimum, six months passed following his end work date until he was put on Neurontin and Zoloft. The WCJ presumably did not find this change in medication significant as if did not have a close temporal proximity to the date Claimant left his employment with an alternate employer.
In regard to Claimant's statement that Dr. Direnzo's opinions concerning his psychological overlay were uncontradicted, we reiterate that consistent with Pryor, a WCJ may reject uncontradicted testimony so long as reasons are provided for doing so. As outlined above, WCJ Wertheimer provided several reasons for rejecting Dr. Direnzo's testimony.
We agree with Claimant that he did testify that his condition worsened, and gave an example that he began to have problems in his neck and back when using the phone. Nonetheless, we do not read any portion of Referee Stander's initial decision to suggest Claimant had a work-related neck injury as all injuries discussed therein were related to lumbar complaints with radicular pain and psychological overlay. Moreover, while it would likely be fundamentally unfair to expect Claimant to precisely recall all events and dates during the twenty years following his work injury, we do not believe WCJ Wertheimer was that demanding. She simply pointed out that Claimant was unsure whether he saw Dr. DiRenzo in the year he stopped working or if he was medically advised to stop working.Dorsey precludes Claimant from challenging this basis for the WCJ's credibility determination regarding his testimony and Campbell prohibits us from doing the same.
Claimant's suggestion that the WCJ took too great a liberty by finding Claimant's verbiage that he "might" try work within his physical capabilities if such work was made available as an indication that he had no desire to work is intriguing inasmuch as Claimant did not appear before WCJ Wertheimer when he made that statement. Therefore, she was not privy to the inflection Claimant used during his testimony, nor was she able to make an instinctive determination of Claimant's credibility. See Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 828 A.2d 1043 (2003) (holding that a WCJ need not articulate a rationale for a credibility assessment for a witness appearing live before her). Because, however, other reasons were provided to reject not only Claimant's testimony, but that of his medical expert as well, we will not address this specific basis for rejecting Claimant's testimony any further.
We now turn to Claimant's argument that Dr. Sachs' opinions are incompetent because he does not recognize that Claimant sustained "discogenic disease" at L4-5 as a result of his work related injury as found in Referee Stander's 1991 Decision. Initially, we observe that Employer contends Claimant waived this argument because it was not made in the Notice of Appeal filed with the Board. Issues not raised before the Board are deemed waived. Jonathan Sheppard Stables v. Workers' Compensation Appeal Board (Wyatt), 739 A.2d 1084 (Pa.Cmwlth. 1999). We agree with Employer that Claimant failed to raise this issue in the appeal document filed with the Board. Consistent with Wyatt, we find this issue waived. Even if Claimant properly preserved the issue concerning Dr. Sachs competency, however, we would reject his argument.
Claimant cites the following excerpt from Dr. Sachs' testimony to show that Dr. Sachs' opinion was incompetent.
Q. Do you believe that the discogenic disease of L4-L5 is causally related to the August 10, 1987 work injury?
A. No.
Q. So then, you disagree with that component of Judge Stander's Finding of Fact Number 5?
A. I do.
R.R. at 188b.
An opinion that does not recognize the work-relatedness of an injury previously determined to be work-related is insufficient to support an employer's burden of proof. GA FC Wagman, Inc. v. Workers' Compensation Appeal Board (Aucker), 785 A.2d 1087 (Pa.Cmwlth. 2001). See also Gillyard v. Workers' Compensation Appeal Board (Pa. Liquor Control Bd.), 865 A.2d 991 (Pa.Cmwlth. 2005) (holding that the employer's medical expert cannot ignore the fact that the claimant sustained other previously accepted work-related injuries when offering an opinion of full recovery). Moreover, an employer may not relitigate the work-relatedness of a claimant's injuries and an expert's opinion that is based upon assumptions which are contrary to the established facts is worthless.Noverati v. Workmen's Compensation Appeal Board (Newtown Squire Inn), 686 A.2d 455 (Pa.Cmwlth. 1996). Nonetheless, if a medical expert disbelieves that a claimant sustained a particular injury at work previously found to be work-related, the expert's testimony can be deemed competent if he assumes hypothetically that the injury occurred and that fact does not alter his opinion previously given. Jackson v. Workers' Compensation Appeal Board (Res. for Human Dev.), 877 A.2d 498 (Pa.Cmwlth. 2005); To v. Workers' Compensation Appeal Board (Insaco, Inc.), 819 A.2d 1222 (Pa.Cmwlth. 2003).
Even when the claimant has the burden of proof, certain situations require consideration to be given to the competence of the employer's expert during appellate review if the claimant's expert was rejected based in part on comparison with the "credible" testimony of the employer's expert. Coyne v. Workers' Compensation Appeal Board (Villanova Univ.), 942 A.2d 939, 954 (Pa.Cmwlth. 2008). See also United States Steel Mining Co., LLC v. Workers' Compensation Appeal Board (Sullivan), 859 A.2d 877, 883 (Pa.Cmwlth. 2004).
At first blush, it appears that Claimant is correct that Dr. Sachs offered incompetent testimony. It must be pointed out, however, that Claimant cites only the passage of Dr. Sachs' testimony that is the most favorable to him. During his examination, Dr. Sachs acknowledged that Referee Stander found Claimant's discogenic disease or, at least, an aggravation thereof, to be work-related. He correlated that fact with his observations of Claimant during his physical examination on February 24, 2006. We reference the following dialogue:
Q. . . . I want to ask you, assuming that — as you know, [WCJ] Stander found that Mr. Pipino's discogenic disease was causally related to the work incident, and that's something you can accept; is that right?
A. Well, yes, and that's —
Q. That's something that you could accept; is that right?
A. Yes.
Q. You were going to explain.
A. What I was going to explain is, as I was asked on cross-examination, the opinion was rendered secondary to an orthopedic surgeon's opinion at the time. I respectfully disagree with that, the conclusions reached with the information given. I think that's the best way I can explain that.
Now, having said that, if that's the, quote, accepted injury, and discogenic disease by definition from a medical orthopedic standpoint isn't a, quote, injury — having that as the accepted injury, the next thing that I need to do is to see if there is any manifested effects of this. I didn't observe that.
R.R. at 193b-194b.
During cross-examination of Dr. Sachs, the following transaction took place:
Q. So Judge Stander's decision, based on the March 1990 report of Dr. Gerber, more than two and a half years after the work injury, found Dr. Gerber to be credible that Claimant is disabled as a result of the chronic lumbar strain and sprain discogenic disease of L4-5 and also disabilities. Would you disagree with that finding?
A. I would disagree with that finding today as it pertains strictly to orthopedic issues.
Q. How about as of 1991, when the decision was circulated based on a March 1990 report of an examination, would you disagree with it then?
A. I can't speak to 1991. I didn't examine him then. And again, I'm dealing with just the orthopedic issues in 2006.
Q. Was it true in 1990 that chronic lumbar strain and sprain with discogenic disease would certainly have been expected to be resolved within six months of onset?
A. Cervical lumbosacral strain and sprain, it would have been true in 1990 or 1920 or 2050. Discogenic disease is something that develops over time; it has nothing to do with a specific injury, and that's always going to be present. Now, whether or not the actual entity is clinically significant would depend on temporally where we are with the patient; that is, I have many patients, and I have discussed this with counsel before I did this deposition — I have many patients that have received this diagnosis, and I may place restrictions on them; but really, these restrictions are when they may be symptomatic, because many times patients with these exact MRI findings are doing just fine, doing whatever they have to do. So, that is the way I would answer that question.
R.R. at 181b-182b.
Moreover, Dr Sachs testified as follows:
A. If we are to accept that the judge ruled that this individual's discogenic disease was secondary [to Claimant's work-related injury] —
Q. Please accept that.
A. What I'm saying is, at the time of my evaluation, he had no evidence — you can have discogenic disease, but it doesn't have to be clinically significant. And what I'm saying is, at the time of my evaluation, there was no clinical significance to that.
R.R. at 196b.
Even if Dr. Sachs did not believe Claimant sustained discogenic disease, or, at minimum, an aggravation of the same, as a result of his work-related injury in 1997, Dr. Sachs did consider the status of that condition if it did occur. He did not alter his opinions as originally given. Pursuant to Jackson and To, his testimony is not rendered incompetent.
Claimant next challenges the WCJ's finding that Employer did not present an unreasonable contest. Section 440(a) of the Pennsylvania Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 996(a), provides:
(a) In any contested case where the insurer has contested liability in whole or in part . . . the employee . . . 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. (Emphasis added).
Claimant has not prevailed on his Reinstatement Petition. Consequently, he is not entitled to attorney's fees due to a presentation of an unreasonable contest. The fact that Employer's contest was reasonable is axiomatic.
After a review of the record, we conclude that the Board did not err in affirming the WCJ's order as all findings are supported by substantial evidence. Accordingly, the opinion of the Board is affirmed.
ORDER
AND NOW, this 28th day of July, 2009, the order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.