Fedchem, LLC, & The SWIF v. WCAB (Wescoe) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Fedchem, LLC, and The State Workers :
Insurance Fund, :
Petitioners :
:
v. : No. 1641 C.D. 2018
: Argued: September 17, 2019
Workers’ Compensation Appeal Board :
(Wescoe), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: November 18, 2019
Fedchem, LLC and The State Workers Insurance Fund (collectively,
Employer) petition for review of an adjudication of the Workers’ Compensation
Appeal Board (Board) that denied Employer’s modification petition. The Board
concluded that Employer did not establish that Kirk Wescoe (Claimant) had earning
power and, thus, was not entitled to reduce Claimant’s disability benefits. The Board
acknowledged that the Workers’ Compensation Judge (WCJ) failed to address a
conflict in the testimony of the vocational experts, which would ordinarily require a
remand. However, because the WCJ credited Claimant’s testimony that he did not
have the skills or experience to do the jobs identified in Employer’s labor market
survey, the Board concluded that the WCJ did not have to address the testimony of
the vocational experts. Employer asserts that the Board erred because Claimant’s
subjective evaluation of his vocational ability cannot be dispositive, and, further,
Claimant’s belief was contradicted by the testimony of the vocational experts.
Employer argues it was incumbent upon the WCJ to resolve all conflicts in
testimony. We vacate and remand.
Background
Claimant began employment with Employer in 1985 as a general
chemical operator and supervisor. On September 8, 2011, while carrying a 50-pound
bag of chemicals, Claimant “entangled” his foot in shrink wrap, which caused him
to make a sudden turn and injure his back. WCJ Decision at 3, Finding of Fact No.
4; Reproduced Record at 372a (R.R. ___). Claimant began collecting disability
compensation at the rate of $858 per week pursuant to a Notice of Temporary
Compensation payable that later converted to a Notice of Compensation Payable
(NCP). In 2015, Claimant’s NCP was amended to add an L4-5 disc herniation to his
work injury.
On August 18, 2016, Employer filed a modification petition pursuant
to Section 413(a) of the Workers’ Compensation Act (Act), 77 P.S. §772.1 Employer
sought to modify Claimant’s disability benefits based upon its labor market survey
and earning power assessment. Claimant denied the allegations in the petition, and
the WCJ scheduled a hearing.
Employer offered the medical testimony of Michael Okin, M.D., a
board-certified orthopedic surgeon who conducted an independent medical
examination (IME) of Claimant on January 20, 2016. He found that Claimant
suffered from pre-existing degenerative disc disease that was aggravated by his work
injury to his disc at L4-5. Dr. Okin opined that Claimant should continue pain
management treatment and not return to his pre-injury job, which required lifting
50-pound bags. However, Dr. Okin opined that Claimant could return to light-duty
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
2
work.2 Dr. Okin reviewed the four job descriptions provided by Employer’s
vocational expert and concluded that Claimant was physically capable of doing all
four jobs.
Employer presented the testimony of Julie Stratton, a certified
vocational rehabilitation counselor, who was accepted as an expert in vocational
rehabilitation. On May 26, 2016, Stratton did a vocational evaluation of Claimant.
Stratton reported that Claimant was 64 years old and held a high school diploma as
well as an “Associate’s diploma.” Stratton Deposition, 1/26/2017, at 22; R.R. 91a.
Claimant had served in the military for four years and then worked as a plant
manager and a chemical operator from 1977 to 1985. From 1985 to 2011, he worked
for Employer. Stratton determined that Claimant had transferable skills that
included operation control and monitoring; critical thinking; quality control analysis;
active listening; judgment; and decision making.
Stratton found Claimant employable. Because Employer did not have
any light-duty jobs available, Stratton looked for open and available positions that
met the physical restrictions set by Dr. Okin. She found positions vocationally
suitable for Claimant through “our job bank of positions” at Hoover Rehabilitation
Services, Inc., where Stratton worked. Id. at 63; R.R. 132a. Stratton also did an
internet search for jobs within a 25 to 30- mile radius of Claimant’s home but found
nothing suitable.
On June 14, 2016, Stratton sent a letter to Claimant that identified two
positions: a dispatcher at Blue Ridge Communications and a customer service
position at PenTeleData. Both were sedentary, entry-level positions that offered on-
2
On January 27, 2016, Employer issued Claimant a notice of ability to return to light-duty work.
R.R. 169a.
3
the-job training. Stratton’s letter stated that both employers required an in-person
application and instructed Claimant to apply for both jobs by June 21, 2016.
On July 20, 2016, Stratton sent a second letter to Claimant, informing
him that cashier positions were available with HMS Host and A Pawn Plus. The
position at HMS Host was light duty, and the position at A Pawn Plus was sedentary.
Both were entry-level positions for which on-the-job training was available.
Stratton’s letter advised Claimant that he could complete the application for HMS
Host online but had to apply in person for the position at A Pawn Plus. Her letter
did not state an application deadline for either position. The four jobs paid between
$320 and $372.50 per week.
Stratton testified that she did not know whether Claimant had applied
for the positions identified in her letters of June 14, 2016, and July 20, 2016.
Claimant testified. He described his job as a chemical operator as
loading chemical reactors, rotating stock, loading bulk tankers, pipefitting and
welding. He managed the two to three employees that worked on his shift. His
computer expertise consisted of printing instructional materials. Claimant testified
that he did not interact with customers.
Claimant testified that on June 20, 2016, he applied for the two
positions identified in Stratton’s letter of June 14, 2016. However, neither Blue
Ridge nor PenTeleData offered him a job. Claimant applied for the HMS Host
cashier position online, at his local library, but he did not get the job. When he
applied for the cashier position at A Pawn Plus, the store manager asked if he was
fluent in Spanish. Claimant did not get the job. Claimant testified that he had no
experience working as a dispatcher, a customer service representative or a cashier;
he did not speak Spanish.
4
Claimant stated that his work injury continues to cause him pain. In
spite of physical therapy and a spinal block, his pain is so great that sometimes he
cannot leave the house. Claimant uses a transcutaneous electrical nerve stimulation
unit (TENS Unit) throughout the day to ease the pain. Claimant doubted that he had
the physical ability to work, explaining “I attempt things, I try things, and then I pay
for it later. I’m either medicating, stretching, or I have a TENS unit where it gives
me electric shock to the affected area to relieve the pain.” WCJ Hearing, Notes of
Testimony (N.T.), 2/1/2017, at 29-30; R.R. 225a-26a. Claimant testified that he did
not believe he had the skills or experience to do any of the jobs Stratton identified.
Nevertheless, he stated that he would have tried the positions had he been hired.3
Claimant presented the testimony of Dennis L. Mohn, a certified
vocational rehabilitation counselor, accepted as an expert in vocational
rehabilitation.4 Mohn conducted a vocational assessment of Claimant on June 16,
2016, and reviewed the labor market survey done by Stratton.
At the time of Mohn’s assessment, Claimant was 65 years old and had
spent the previous 26 years working for Employer, a manufacturer of water sealants
and ink gellants. Claimant told Mohn that he could lift 20 pounds but could carry
only 10 pounds; sit or stand five to 15 minutes at a time; walk a quarter mile; and
drive for about 90 minutes. Mohn stated that Claimant “could only occasionally
climb steps. He couldn’t bend or crawl or kneel. But he could occasionally slightly
squat to try to reach the floor.” Mohn Deposition, 3/23/2017, at 19; R.R. 246a.
Mohn addressed each of the four jobs identified by Stratton.
3
Separate from his work injury, Claimant has Fuchs’ dystrophy, a degenerative disease of the
corneal endothelium, in both eyes, which causes vision problems, particularly when reading a
computer screen.
4
He is employed by Dennis L. Mohn Consulting, Inc.
5
Based on his conversation with Blue Ridge Communications, Mohn
testified that the dispatcher job required proficiency with Microsoft Office programs
and the ability to work efficiently in a fast-paced environment. Essentially, the
dispatcher took calls from customers with service needs and scheduled a visit from
a field technician. Mohn did not believe Claimant had the necessary computer and
customer service skills.
Mohn testified that the customer service job at PenTeleData required
prior experience and a working knowledge of Microsoft Word, Excel and Windows.
Mohn did not believe Claimant was qualified for this job, but he acknowledged that
he did not test Claimant’s computer skills.
Mohn testified that HMS Host operates fast food restaurants at rest
stops on the Pennsylvania Turnpike. The cashier position involves food preparation
and clean-up. It is an entry-level position, but HMS Host requires the candidate to
demonstrate an ability to interact with the public. Mohn stated that Claimant had no
relevant work experience.
Mohn testified that A Pawn Plus required prior experience as a cashier
and the ability to carry up to 40 pounds. Mohn testified that Claimant had neither
the necessary experience nor the physical ability to do the job.
Claimant also presented the testimony of Robert Mauthe, M.D., who is
board certified in physical medicine and rehabilitation and began treating Claimant
in 2012. Dr. Mauthe diagnosed Claimant with chronic back pain and an L4-5 disc
herniation and radiculopathy. Dr. Mauthe prescribed anti-inflammatory medication
and a TENS Unit to help Claimant with the pain.
Dr. Mauthe released Claimant to light-duty work. Dr. Mauthe opined
that Claimant was capable of working eight hours a day, provided he could shift his
6
position from time to time, i.e., sit, stand, and walk around. Dr. Mauthe authorized
Claimant to do the dispatcher job at Blue Ridge Communications on a trial basis and
believed Claimant to be physically capable of doing the customer service job at
PenTeleData. Dr. Mauthe did not believe Claimant could do either the HMS Host
or A Pawn Plus position because of the physical demands. The HMS Host job
required bending and twisting, and the A Pawn Plus job required lifting in excess of
40 pounds. These duties exceed Claimant’s physical abilities.
On cross-examination, Dr. Mauthe testified that the descriptions of the
jobs at HMS Host and A Pawn Plus given to Dr. Okin were different from the job
descriptions that Mohn provided to Dr. Mauthe. Specifically, the job description
given to Dr. Okin for HMS Host provided that the employee could stand and walk
for short periods and use a stool. The job description for A Pawn Plus provided that
the employee would have a cushioned stool and not be required to lift over five
pounds. Assuming those job descriptions were accurate, Dr. Mauthe testified that
Claimant was physically capable of doing both jobs.
The WCJ found the testimony of Claimant and Dr. Mauthe credible.
The WCJ did not address the testimony of either Mohn or Stratton and did not decide
which job descriptions provided by the experts to Dr. Mauthe and Dr. Okin were
accurate. Instead, the WCJ focused on whether the jobs in the labor market survey
were open and available and found as follows:
Claimant was never afforded the opportunity to perform the jobs
and therefore, consistent with Phoenixville [Hospital v. Workers’
Compensation Appeal Board (Shoop), 81 A.3d 830 (Pa. 2013),
the WCJ] does not find the jobs were open and available to
Claimant.
7
WCJ Decision at 9, Finding of Fact No. 35; R.R. 878a. On this basis, the WCJ
concluded that Employer did not prove that Claimant had earning power and denied
Employer’s modification petition.
Employer appealed to the Board. Employer argued that the evidence
established Claimant was vocationally and medically able to do the jobs identified
in the labor market survey; the jobs were open and available to him; and the WCJ
misapplied the holding in Phoenixville, 81 A.3d 830. Further, the WCJ erred in not
addressing the testimony of the vocational experts on the question of whether
Claimant was vocationally able to do any of the four positions identified by Stratton.
The Board agreed that the WCJ erred by not addressing the testimony
of the vocational experts and acknowledged that this error “would normally warrant
a remand.” Board Adjudication at 7; R.R. 391a. However, Claimant had testified
that he lacked the skills or experience to do the jobs, i.e., they were not vocationally
suitable. Because the WCJ credited this testimony, the Board held that Employer
did not prove the existence of employment opportunities compatible with Claimant’s
skills, education, age and work experience. On this basis, the Board affirmed the
WCJ. Employer petitioned for this Court’s review.
Appeal
On appeal,5 Employer raises two issues. First, Employer argues that the
WCJ erred in denying its modification petition without addressing the testimony of
the vocational experts and making credibility determinations thereon. Second,
Employer argues that the Board erred in affirming the WCJ’s decision, absent of
5
“Our review is limited to determining whether the WCJ’s findings of fact were supported by
substantial evidence, whether an error of law was committed or whether constitutional rights were
violated.” Smith v. Workers’ Compensation Appeal Board (Supervalu Holdings PA, LLC), 177
A.3d 394, 400 n.4 (Pa. Cmwlth. 2018).
8
these necessary credibility determinations, solely on the basis of Claimant’s
testimony. Employer requests that we grant the modification petition or, in the
alternative, remand to the WCJ for additional findings.
Analysis
In workers’ compensation cases, the WCJ is the ultimate fact-finder
with exclusive province over questions of credibility and evidentiary weight. A & J
Builders, Inc. v. Workers’ Compensation Appeal Board (Verdi), 78 A.3d 1233, 1238
(Pa. Cmwlth. 2013). The WCJ may accept or reject the testimony of any witness in
whole or in part. Id. Whether the record contains evidence to support findings other
than those made by the WCJ is irrelevant; the critical inquiry is whether there is
evidence to support the findings the WCJ actually made. Furnari v. Workers’
Compensation Appeal Board (Temple Inland), 90 A.3d 53 (Pa. Cmwlth. 2014).
Section 413 of the Act, 77 P.S. §772,6 authorizes a WCJ to modify or
suspend a claimant’s benefits where the claimant has some earning power.
Disability compensation is based upon the difference between a claimant’s pre-
injury wages and his post-injury earning power. Section 306(b)(2) of the Act
6
It states, in relevant part, as follows:
A workers’ compensation judge designated by the department may, at any time,
modify, reinstate, suspend, or terminate a notice of compensation payable, an
original or supplemental agreement or an award of the department or its workers’
compensation judge, upon petition filed by either party with the department, upon
proof that the disability of an injured employe has increased, decreased, recurred,
or has temporarily or finally ceased, or that the status of any dependent has changed.
Such modification, reinstatement, suspension, or termination shall be made as of
the date upon which it is shown that the disability of the injured employe has
increased, decreased, recurred, or has temporarily or finally ceased, or upon which
it is shown that the status of any dependent has changed….
77 P.S. §772 (emphasis added).
9
establishes how a claimant’s “earning power” is to be determined, stating in relevant
part, as follows:
“Earning power” shall be determined by the work the employe is
capable of performing and shall be based upon expert opinion
evidence which includes job listings with agencies of the
department, private job placement agencies and advertisements
in the usual employment area. Disability partial in character
shall apply if the employe is able to perform his previous work
or can, considering the employe’s residual productive skill,
education, age and work experience, engage in any other kind of
substantial gainful employment which exists in the usual
employment area in which the employe lives within this
Commonwealth. If the employe does not live in this
Commonwealth, then the usual employment area where the
injury occurred shall apply. If the employer has a specific job
vacancy the employe is capable of performing, the employer
shall offer such job to the employe. In order to accurately assess
the earning power of the employe, the insurer may require the
employe to submit to an interview by a vocational expert who is
selected by the insurer and who meets the minimum
qualifications established by the department through regulation.
The vocational expert shall comply with the Code of Professional
Ethics for Rehabilitation Counselors pertaining to the conduct of
expert witnesses.
77 P.S. §512(2). In sum, disability benefits may be modified where the employer
establishes the claimant’s earning power by offering him a job or by locating
appropriate positions through “expert opinion evidence.” Kleinhagan v. Workers’
Compensation Appeal Board (KNIF Flexpak Corp.), 993 A.2d 1269, 1275 (Pa.
Cmwlth. 2010) (quoting Allied Products and Services v. Workers’ Compensation
Appeal Board (Click), 823 A.2d 284, 287 (Pa. Cmwlth. 2003)).
The employer bears the burden of proving the claimant’s earning
power. Valenta v. Workers’ Compensation Appeal Board (Abington Manor Nursing
10
Home and Rehab and Liberty Insurance Company), 176 A.3d 374, 384 (Pa. Cmwlth.
2017). A claimant may refute the employer’s evidence by showing that the
employer’s labor market survey was erroneous, or that “the claimant’s actual
experience with the employers identified in the employer’s labor market surveys”
shows that the positions were not available. Phoenixville, 81 A.3d at 844.
With those principles in mind, we turn to Employer’s appeal. It argues
that the Board erred in not requiring the WCJ to assess the credibility of the two
vocational experts and, instead, relying upon the subjective beliefs of Claimant to
determine whether the jobs identified by Stratton were vocationally suitable. It also
argues that Phoenixville, 81 A.3d 830, does not require that a claimant actually be
offered a job, and the WCJ erred in otherwise holding. The Board agreed but
affirmed on the basis of Claimant’s subjective testimony even though his testimony
conflicted with the testimony of the vocational experts.
Claimant responds that the testimony of the vocational experts was
irrelevant because the WCJ found the jobs were not vocationally suitable for
Claimant based on Claimant’s credited testimony. Further, Employer’s vocational
expert did not testify that the jobs were still available at the time Claimant applied
for them, and this was required under Phoenixville. Claimant argues that Employer
simply failed to meet its burden of proof.
In Phoenixville, the employer filed a modification petition, alleging that
the claimant could do sedentary work and identifying five open and available
sedentary positions. The claimant applied for the jobs but was not hired. The WCJ
found the claimant could do the jobs. However, because the claimant did not receive
an offer of employment, the WCJ denied the modification petition. The Board
affirmed, and this Court reversed the Board. We held that a claimant does not need
11
to be offered a job in order for the employer to meet its burden that there are open
and available positions that fall within the claimant’s physical limitations.
On further review, the Supreme Court agreed that a claimant does not
need to be offered a job in order for the employer to establish that the claimant has
earning power. However, the jobs identified by the employer must be “actually open
and potentially available, not simply jobs that are already filled with existing
employees.” Phoenixville, 81 A.3d at 843. It explained that
expert opinion evidence under Section 306(b) functions not only
as a means of demonstrating that there are open jobs that exist
within the claimant’s limitations, but also as a mechanism for
providing the claimant with notice of the existence of these
jobs….
Id. at 844. The claimant must have a reasonable opportunity to respond to the
employer’s vocational evidence and be able “to present evidence regarding her or
his experience with applying for the jobs identified by the employer’s expert
witness.” Id. The Supreme Court remanded the matter so the claimant could submit
additional evidence on whether the jobs were actually available.
In the case sub judice, Claimant did not contend that the jobs
recommended by Employer’s vocational expert were not open and available; in fact,
he applied for the jobs. Stratton testified that she did not ascertain whether the jobs
remained open after she sent the notices to Claimant. Under Phoenixville, it was
Employer’s burden to establish the jobs remained open for a reasonable length of
time so that Claimant could apply for them. Stratton’s testimony did not satisfy this
burden, but other evidence in the record did. Mohn’s vocational assessment report
stated that the dispatcher position with Blue Ridge Communications and the
customer service position with PenTeleData were still open and available on June
12
22, two days after Claimant filed his applications for those jobs. Mohn’s report
stated that the cashier position at A Pawn Plus remained open as of August 25. His
report was silent on the HMS Host cashier position. However, Claimant’s own
testimony established that the positions were open and available because he applied
for the positions.
The WCJ found that Claimant was not offered any of the jobs and, thus,
“consistent with Phoenixville,” the jobs were not open and available to Claimant.
WCJ Decision at 9, Finding of Fact No. 35; R.R. 378a. The WCJ erred in this regard.
An employer must prove the existence of gainful employment within the claimant’s
ability, but “an employer need not show that the claimant had obtained
employment.” Phoenixville, 81 A.3d at 842. The Board acknowledged the WCJ’s
erroneous understanding of Phoenixville.
The Board also acknowledged that where the employer offers
vocational expert testimony, the WCJ must then evaluate the employer’s labor
market survey and accept or reject the expert’s testimony and report, in whole or in
part. The WCJ failed to do this in the instant case. The Board sidestepped the WCJ’s
omission for the stated reason that “Claimant credibly testified that the identified
positions were not within his skills or experience and he would not normally have
applied for them had he not been instructed to apply.” Board Adjudication at 7; R.R.
391a. The Board reasoned that Claimant’s testimony was sufficient to defeat
Employer’s claim that there were jobs suitable for Claimant.
The Board may affirm a WCJ’s decision on legal reasoning that differs
from that of the WCJ. Carmen Paliotta General Construction v. Workmen’s
Compensation Appeal Board (Tribuzio), 528 A.2d 274, 277-78 (Pa. Cmwlth. 1987)
(Board has “final authority to make conclusions of law” and can modify a WCJ’s
13
legal conclusions). However, here, the Board erred in determining Claimant’s
vocational suitability solely on the basis of Claimant’s testimony. Claimant’s
testimony was directly contradicted by Stratton’s testimony that the jobs did not
require prior experience and that training would be provided.
Section 422(a) of the Act states “[w]hen faced with conflicting
evidence, the [WCJ] must adequately explain the reasons for rejecting or discrediting
competent evidence.” 77 P.S. §834. This Court has explained that the
reasoned decision requirement does not permit a party to
challenge or second-guess the WCJ’s reasons for credibility
determinations; determining the credibility of witnesses remains
the quintessential function of the WCJ as the finder of fact.…
The WCJ is free to accept, in whole or in part, the testimony of
any witness…. However, the WCJ may not capriciously
disregard evidence. A “capricious disregard” of evidence is a
“deliberate disregard of competent evidence which one of
ordinary intelligence could not possibly have avoided in reaching
a result.” Leon E. Wintermyer, Inc. v. Workers’ Compensation
Appeal Board (Marlowe), [] 812 A.2d 478, 487 n.12 ([Pa.]2002).
Reed v. Workers’ Compensation Appeal Board (Allied Signal, Inc.), 114 A.3d 464,
470 (Pa. Cmwlth. 2015) (internal citations omitted). The WCJ need not address all
of the evidence, but he must “make findings necessary to resolve the issues raised
by the evidence and relevant to the decision.” Green v. Workers’ Compensation
Appeal Board (US Airways), 155 A.3d 140, 148 (Pa. Cmwlth. 2017).
Here, the parties offered conflicting evidence on the physical
requirements of the jobs; whether prior experience was required; and whether on-
the-job training was provided. The experts offered completely different accounts
about the physical and vocational requirements of each position. Dr. Mauthe
testified that if the job descriptions provided to Dr. Okin were accurate, then
14
Claimant was physically capable of doing them. Without factual findings on the
vocational skills and physical demands required in each job, the WCJ lacked the
foundation for accepting Claimant’s testimony that he was not vocationally or
physically able to do any of the jobs identified in Employer’s labor market survey. 7
Conclusion
The WCJ erred in holding that Claimant had to be offered a job in order
for his disability benefits to be modified. The WCJ also erred in not addressing the
testimony of the vocational experts. The Board erred in its attempt to affirm on
different grounds by relying on Claimant’s credited opinion that the jobs were not
vocationally suitable. Claimant’s testimony directly conflicted with that offered by
Stratton, and it was incumbent on the WCJ to resolve this conflict. In any case, the
WCJ could not decide the question of Claimant’s vocational suitability without
resolving the conflicts in the evidence on what each position requires, physically and
vocationally. Accordingly, we will vacate the Board’s adjudication and remand the
matter for further proceedings consistent with this opinion.
_____________________________________
MARY HANNAH LEAVITT, President Judge
7
Employer argues that the subjective testimony of a claimant cannot establish whether a position
is vocationally suitable, as held by the Board. If the WCJ and the Board can ignore expert evidence
that there are vocationally suitable positions available to a claimant and rely solely on the
claimant’s self-serving opinion, then the labor market survey will be rendered meaningless. It will
be impossible for an employer to modify a claimant’s benefits on the basis of earning power.
Stated otherwise, the Board’s approach would leave employers without a clear path to establish
vocational suitability. This argument is premature because there needs, first, to be a determination
of what experience and skills are required for each position.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Fedchem, LLC, and The State Workers :
Insurance Fund, :
Petitioners :
:
v. : No. 1641 C.D. 2018
:
Workers’ Compensation Appeal Board :
(Wescoe), :
Respondent :
ORDER
AND NOW, this 18th day of November, 2019, the order of the Workers’
Compensation Appeal Board (Board), dated November 14, 2018, is hereby
VACATED and the matter REMANDED to the Board with instructions to remand
to the Workers’ Compensation Judge to make findings in accordance with the
attached opinion.
Jurisdiction relinquished.
_____________________________________
MARY HANNAH LEAVITT, President Judge