Redner's Markets, Inc. and Inservco Ins. Co. v. WCAB (Renninger) ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Redner's Markets, Inc. and :
Inservco Insurance Co., :
Petitioners :
:
v. : No. 98 C.D. 2015
: Submitted: July 10, 2015
Workers' Compensation Appeal :
Board (Renninger), :
Respondent :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: August 27, 2015
In this appeal, Redner’s Markets, Inc. and Inservco Insurance Co.
(collectively, Employer) ask whether the Workers’ Compensation Appeal Board
(Board) erred in affirming a decision of a Workers’ Compensation Judge (WCJ)
that granted Suzanne Renninger’s (Claimant) petition to review workers’
compensation benefits. Employer argues the workers’ compensation authorities
erred in failing to determine Claimant’s review petition was barred by res judicata.
Upon review, we affirm.
I. Background
Claimant worked for Employer as a cake decorator. In August 2007,
she sustained a work-related right hand injury in the nature of carpal tunnel
syndrome as a result of cumulative trauma. Shortly thereafter, Claimant underwent
surgery. Claimant filed a claim petition. Ultimately, Employer accepted the injury
by stipulation, which a WCJ approved. Pursuant to that stipulation, Claimant
received indemnity benefits of $188.12 per week based on an average weekly wage
of $209.02.
Thereafter, the parties entered into a second stipulation, approved by a
different WCJ, which resolved a petition to review medical treatment and a petition
to review compensation benefits. Through that stipulation, the parties agreed to
amend the description of the work injury to include complex regional pain
syndrome (CRPS) type 2 of the upper right extremity. The parties specifically
agreed that the stipulation would not bar either party from filing a review petition
to amend the description of the work injury should the need to do so arise in the
future. WCJ Op., 1/24/14, Finding of Fact (F.F.) No. 2; Reproduced Record (R.R.)
at 55a, 525a.
In September 2010, Claimant filed, among other things, a review
petition (2010 review petition), seeking to amend the description of the accepted
injury to include an overuse injury of the left upper extremity and depression.
Ultimately, in 2011, a WCJ issued a decision that granted Claimant’s 2010 review
petition, which further amended the description of the work injury to include carpal
tunnel syndrome of the left upper extremity. As a result, the established work
injuries were “carpal tunnel syndrome of the right upper extremity; [CRPS] Type 2
of the right upper extremity; carpal tunnel syndrome of the left upper extremity.”
R.R. at 429a; F.F. No. 2.
2
In January 2013, Claimant filed another review petition (2013 review
petition),1 which is the petition directly at issue here, in which she alleged: “One of
[her] symptoms … is insomnia due to the extreme discomfort arising out of her
[CRPS]. A review to include her sleeping disorder arising from her injury is
requested so that her medical care for same can be covered.” R.R. at 464a.
Employer denied that Claimant’s insomnia was in any way related to the accepted
work injury. Moreover, it averred Claimant was barred from adding insomnia to
the description of the injury pursuant to this Court’s decision in Weney v.
Workers’ Compensation Appeal Board (Mac Sprinkler Systems), 960 A.2d 949
(Pa. Cmwlth. 2008) (holding that a claimant’s failure to litigate his neck and
cervical injuries in a prior review petition barred him from raising the issue in a
subsequent review petition).
In addition, Employer filed a motion to dismiss Claimant’s 2013
review petition alleging that, although Claimant did not litigate the specific issue of
her insomnia/sleep disorder during her prior, 2010 review petition, the medical
evidence indicated she should have done so. In particular, medical records from
2007 and 2009 revealed Claimant experienced difficulty sleeping, and at multiple
WCJ hearings, Claimant herself testified she had difficulty sleeping prior to the
filing of her 2010 review petition. Under these circumstances, Employer argued
1
Previously, in August 2012, Claimant filed a review petition in which she alleged: “One
of the symptoms of the Claimant is insomnia due to the extreme discomfort arising out of her
[CRPS]. She has consulted George Heffner, M.D. in order to be medicated in some manner
which can assist her in getting relief and [Employer] refuses to pay for same. A review to
include her sleeping disorder arising from her injury is requested so that her medical care for
same can be covered.” Reproduced Record (R.R.) at 445a. Employer denied the allegations.
About a month later, Claimant sought to withdraw this review petition. A WCJ later dismissed
the review petition as withdrawn without prejudice. R.R. at 452a.
3
that, pursuant to Weney, Claimant’s review petition was barred by technical res
judicata.
Thereafter, a WCJ issued an interim/interlocutory decision and order
that denied Employer’s motion to dismiss Claimant’s 2013 review petition based
on a determination that this case was more akin to this Court’s decision in Knouse
v. Workers’ Compensation Appeal Board (G.O.D., Inc.), 886 A.2d 329 (Pa.
Cmwlth. 2005) (declining to apply res judicata or collateral estoppel so as to bar a
claimant’s review petition, where petition merely sought to clarify the nature of the
established work injury) than the reasoning in Weney.2
Specifically, the WCJ explained, unlike the claimant in Weney, who
filed successive review petitions seeking to add a distinct injury that the claimant
was aware of at the time he filed his initial review petition, Claimant here was not
seeking to add a separate injury. Rather, like the claimant in Knouse, Claimant
sought an amendment in order to further explain and refine her established CRPS
injury description. “In effect,” the WCJ stated, “Claimant may be fairly seen as
seeking to simply clarify what was previously defined – her [CRPS] – as causing
her symptom of insomnia.” WCJ’s Interim/Interlocutory Decision, 5/3/13, at 4.
2
The WCJ also cited a prior Board decision, see Fernandez v. The Dress Barn Inc. (Pa.
W.C.A.B., No. A09-0789, filed January 12, 2011), 2011 WL 265705, which applied Knouse v.
Workers’ Compensation Appeal Board (G.O.D., Inc.), 886 A.2d 329 (Pa. Cmwlth. 2005), and
distinguished Weney v. Workers’ Compensation Appeal Board (Mac Sprinkler Systems), 960
A.2d 949 (Pa. Cmwlth. 2008).
4
After hearings and the receipt of medical evidence, the WCJ granted
Claimant’s 2013 review petition and amended the description of the work injury to
include a sleep disorder in the nature of insomnia. In so doing, the WCJ
incorporated the analysis set forth in his interim/interlocutory decision that denied
Employer’s motion to dismiss Claimant’s 2013 review petition on the ground that
it was barred by res judicata.
In addition, the WCJ credited the deposition testimony of Dr. A. Leo
Osterman, M.D. (Claimant’s Physician), who is board certified in orthopedic
surgery, over the opinions expressed in the report of Dr. David M. Raizen, M.D.,
Ph.D., (Employer’s Physician), who is board certified in neurology. The WCJ
explained:
Turning to the question of Claimant’s inability to sleep or
insomnia being related to her 2007 work injury, this Judge
notes that [Claimant’s Physician] did opine that it is secondary
to her accepted diagnosis – her RSD or [CRPS]. While
[Employer’s Physician] did present the possibility that Claimant
had sleep issues prior to her 2007 injury date, the best he could
do from his record review was to write that he had insufficient
information to make a determination as to whether Claimant’s
current issues were related to her 2007 injury. [Claimant’s
Physician’s] opinion, on the other hand, was clear. He stated
Claimant’s insomnia is, ‘…secondary to her chronic pain and to
her depression, absolutely, which is related to the work injury.’
([Claimant’s Physician’s] depo at pg. 11) Again, [Claimant’s
Physician’s] long standing role as Claimant’s treating physician
cannot be ignored. His testimony on this point, therefore, is
accepted as fact.
F.F. No. 10(b). Thus, the WCJ granted Claimant’s review petition, and, based on
the testimony of Claimant’s Physician, he amended the description of the accepted
injury to include a sleep disorder in the nature of insomnia.
5
Employer appealed, and the Board affirmed. The Board rejected
Employer’s sole argument that Claimant’s 2013 review petition was barred by res
judicata or collateral estoppel, finding no error in the WCJ’s determination that
under Knouse Claimant could file a review petition to clarify the previously
accepted injury description to include insomnia, which is a symptom of her CRPS
diagnosis. The Board also agreed that Weney was distinguishable as Claimant did
not file serial review petitions seeking to add injuries to completely different body
parts. Thus, the Board determined that Claimant’s review petition was not barred
by res judicata. Employer now petitions for review to this Court.3
II. Discussion
A. Contentions
On appeal,4 Employer argues Claimant filed her 2010 review petition,
seeking to amend the description of the injury to include an overuse injury of the
upper left extremity and depression. Employer asserts Claimant filed her 2013
review petition, seeking to amend the description of the injury to include insomnia
and sleeping disorder.
3
After filing its petition for review, Employer filed an application for supersedeas, which
a single judge of this Court denied on the ground that Employer did not make a strong showing
that it was likely to prevail on the merits. Specifically, the single judge determined, based on a
review of Weney and Knouse, it could not be said that the workers’ compensation authorities
clearly erred in applying the holding of Knouse to the facts presented in this case.
4
Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact were supported by substantial evidence, and whether constitutional
rights were violated. Dep’t of Transp. v. Workers’ Comp. Appeal Bd. (Clippinger), 38 A.3d
1037 (Pa. Cmwlth. 2011).
6
Employer contends Claimant testified she had work-related sleep
disorders since at least August 2007. Claimant also testified in 2009 and 2010 that
she was aware of her pain-related sleep disorder. Further, Claimant showed
symptoms of a sleep disorder in her Physician’s medical records, dated December
12, 2007. Claimant’s Physician’s medical reports from 2009 also note Claimant’s
sleep disorder. Additionally, Dr. Martin D. Cheatle, Ph.D., who evaluated
Claimant in response to her Physician’s referral, diagnosed sleep disturbance
caused by Claimant’s work injury a year before she filed her 2010 review petition.
Employer maintains Claimant had sufficient notice and opportunity to
allege work-related insomnia and sleep disorder before filing her 2010 review
petition, and most certainly before filing her 2013 review petition. Because
Claimant did not do so, Employer argues, she is now barred from alleging this
condition in her 2013 review petition under the doctrine of technical res judicata.
Employer asserts the facts here present a similar, if not more
persuasive scenario than the situation before this Court in Weney. Further, it
argues, this case is distinguishable from Knouse, upon which the WCJ and the
Board relied. Thus, Employer contends that this Court should reverse the
decisions of the WCJ and the Board and deny Claimant’s review petition.
Claimant responds that the Board’s order is legally sufficient and does
not constitute reversible error; thus, this Court should not disturb it. Claimant
argues the grant of her 2013 review petition was proper as that petition merely
attempted to define a condition that was a consequence of her accepted CRPS
7
stemming from her accepted work injuries. As a result, Claimant maintains, her
review petition cannot be barred under case law applying the doctrine of technical
res judicata.
Claimant asserts she testified before the WCJ regarding the
difficulties she had relative to her insomnia and attributed those difficulties to the
severe pain she experiences from her accepted CRPS. R.R. at 522a. Claimant
contends she dealt with sleep issues for an extended period because of pain from
her accepted work injuries, and she filed a review petition only after Employer
made it necessary to do so by failing to pay for treatment attendant to her
insomnia. Id.
Claimant argues the credible medical evidence confirms her sleep
disorder is a consequence of her accepted CRPS, which a WCJ accepted as the
work injury in August 2008. Claimant asserts her 2013 review petition merely
sought to clarify the resulting and consequential conditions associated with her
CRPS diagnosis. R.R. at 463a. At no time did Claimant seek to add her sleep
disorder and insomnia to her injury description as an independent condition or
diagnosis, which could be barred by technical res judicata.
Claimant further maintains the WCJ and the Board properly relied on
Knouse, which holds that a subsequent review petition merely seeking to clarify
the description of an injury found in a prior decision is not barred by res judicata.
Because the WCJ and the Board properly relied on Knouse in granting her review
petition, Claimant asserts, this Court should affirm those decisions here.
8
B. Analysis
The filing of a review petition is appropriate to obtain an amendment
to the established description of the work injury based on subsequently arising
medical conditions that are related to the original injury; i.e., consequential
conditions. Cinram Mfg., Inc. v. Workers’ Comp. Appeal Bd. (Hill), 975 A.2d 577
(Pa. 2009). Where a claimant files a review petition seeking to amend the
description of the accepted work injury to include such conditions, the claimant
bears the burden of proof. Commercial Credit Claims v. Workmen’s Comp.
Appeal Bd. (Lancaster), 728 A.2d 902 (Pa. 1999). Thus, a claimant must show the
additional conditions alleged are causally related to the work injury. Id. In cases
where the causal relationship is not obvious, a claimant must establish causation
with unequivocal medical evidence. Degraw v. Workers’ Comp. Appeal Bd.
(Redner’s Warehouse Mkts., Inc.), 926 A.2d 997 (Pa. Cmwlth. 2007).
Technical res judicata and collateral estoppel are both encompassed
within the parent doctrine of res judicata, which “prevents the relitigation of
claims and issues in subsequent proceedings.” Channellock, Inc. v. Workers’
Comp. Appeal Bd. (Reynolds), 72 A.3d 731, 738-39 (Pa. Cmwlth. 2013) (citations
omitted).
Pursuant to the doctrine of technical res judicata, often referred to as
claim preclusion, “when a final judgment on the merits exists, a future suit between
the parties on the same cause of action is precluded.” Id. at 739 (citations omitted).
In order for technical res judicata to apply, there must be: “(1) identity of the thing
sued upon or for; (2) identity of the cause of action; (3) identity of the persons and
9
parties to the action; and (4) identity of the quality or capacity of the parties suing
or sued.” Id. Technical res judicata may be applied to bar “claims that were
actually litigated as well as those matters that should have been litigated.” Id.
Generally, causes of action are identical when the subject matter and the ultimate
issues are the same in both the old and the new proceedings. Id.
The doctrine of collateral estoppel, often referred to as “issue
preclusion,” is designed to prevent re-litigation of an issue in a later action, despite
the fact that the later action is based on a cause of action different from the one
previously litigated. Id. It applies where:
(1) the issue decided in the prior case is identical to the one
presented in the later case; (2) there was a final judgment on the
merits; (3) the party against whom the doctrine is asserted was a
party or in privity with the party in the prior case and had a full
and fair opportunity to litigate the issue; and (4) the
determination in the prior proceeding was essential to the
judgment.
Id. (citation omitted).
In support of its assertion that Claimant’s 2013 review petition is
barred by res judicata, Employer relies on Weney. There, the claimant sustained a
work-related left shoulder strain when he fell from a ladder. The employer
accepted the injury. Several months later, the claimant filed a review petition
seeking to amend the accepted injury description to include additional injuries to
the shoulder as well as a biceps injury. The parties ultimately stipulated to amend
the injury description to include the additional shoulder injuries, and a WCJ
approved the stipulation. Eleven days later, the claimant filed a second review
10
petition, again seeking to amend the description of the work injury to include
cervical injuries. A WCJ granted the second review petition. The employer
appealed to the Board, arguing the WCJ erred in failing to address its assertion that
the second review petition was barred by technical res judicata or collateral
estoppel. Because the record revealed that the claimant’s physician informed the
claimant that his cervical injuries were work-related at the time the claimant filed
his first review petition, the Board concluded the claimant should have sought to
include those injuries during the litigation on the first review petition because the
parties were addressing additional injuries the claimant suffered in the initial work
incident. Thus, the Board determined the claimant’s second review petition was
barred by res judicata.
The claimant appealed to this Court, arguing the Board erred in
determining his second review petition was barred by res judicata where there was
no “identity of the cause of action” in that the first review petition proceedings
related to a shoulder injury and did not involve an allegation of an injury to the
neck or cervical spine. Ultimately, we rejected this argument, and we agreed with
the Board that the claimant’s second review petition was barred by technical res
judicata. We stated: “Although [the] [c]laimant did not actually litigate the
specific issue of his neck or cervical spine injury during the earlier proceedings on
his [first review petition], the record evidence clearly establishes that he should
have done so.” Id. at 955. In particular, the claimant testified he experienced neck
pain after the work incident, and he reported it to his treating physicians. Further,
one of the claimant’s treating physicians testified that he advised the claimant of
his belief that the neck pain was related to the original work incident at the time the
11
claimant filed his first review petition. Around that same time, the claimant also
underwent an MRI that revealed four herniated discs, which was consistent with
the claimant’s complaints of neck pain. We explained this constituted “concrete
evidence” that the claimant was aware of his neck injury and its relatedness to the
work incident during the proceedings on his first review petition. Id. at 956. As a
result, the claimant should have litigated the neck injury at that time. Thus, we
held the claimant’s second review petition was barred by technical res judicata.
Further, we stated:
[I]f we were to allow amendments to notices of compensation
payable pursuant to Section 413(a) [of the Act5] in situations
such as this one, the result would be that litigants could file
piece-meal review petitions without any justification for doing
so, thereby requiring others to continually waste time and
resources defending against issues that should have been raised
in earlier proceedings.
Id. (citation omitted).
In Knouse, relied on by the WCJ, the Board and Claimant, a WCJ
granted the claimant’s claim petition finding he sustained, among other things, a
sprained low back. In a second decision granting the claimant’s reinstatement
petition, the WCJ, relying on the claimant’s physician’s opinion, found the
claimant’s “lumbar disc strain” was best described as “an annular disruption at L4-
5.” Id. at 331. Thereafter, the claimant filed a review petition, asserting, as a
precautionary measure, he sought to ensure the WCJ’s finding regarding the nature
of the injury was incorporated in the injury itself. Ultimately, the WCJ found the
5
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §771.
12
sprained low back the claimant suffered as a result of the original work injury
included an annular disruption at L4-5. The employer appealed, arguing res
judicata barred the WCJ from modifying the description of the injury to include an
annular disruption. The Board agreed, and it reversed the WCJ’s decision.
On further appeal to this Court, the claimant argued the Board erred in
applying res judicata. We agreed. In so doing, we explained that, in his original
decision, the WCJ found the claimant suffered a sprained low back. During later
proceedings, the claimant’s physician explained a sprained low back could be
described as an annular disruption. We concluded the claimant’s physician’s
testimony adequately addressed the recognized work injury, and there was no
conflict between his diagnosis of an annular disruption and the original finding that
the claimant suffered a low back sprain. Thus, in granting the review petition and
including the annular disruption, the WCJ “merely clarified what already had been
litigated.” Id. at 335 (emphasis in original). We stated:
Because [the claimant’s physician’s] credible testimony
established that [the] [c]laimant’s annular disruption at L4-5
was part of his [initial] work-related low back strain, the
evidence accepted supports such clarification, and we see no
error in the WCJ’s taking this action. Significantly, such
clarification is exactly what [the] [c]laimant sought by filing his
review petition. …
The filing of a review petition has been identified as the
proper procedure for obtaining clarification of an employer’s
obligations under a WCJ’s award, see Department of Public
Welfare v. Workers’ Compensation Appeal Board (Overton),
783 A.2d 358 (Pa. Cmwlth. 2001), and we see no reason why it
may not also be used as a means to clarify a claimant’s rights
under a WCJ’s award.
13
Id. at 335-36 (emphasis added). Thus, we held the claimant’s review petition was
not barred by res judicata or collateral estoppel.
Upon review, we discern no error in the WCJ’s grant of Claimant’s
2013 review petition. More particularly, through her 2013 review petition,
Claimant alleged: “One of [her] symptoms … is insomnia due to the extreme
discomfort arising out of her [CRPS]. A review to include her sleeping disorder
arising from her injury is requested so that her medical care for same can be
covered.” R.R. at 464a. In granting the 2013 review petition, the WCJ credited
the opinion of Claimant’s Physician that Claimant’s insomnia is “secondary to her
chronic pain and to her depression, absolutely, which is related to the work injury.”
F.F. No. 10(b); Certified Record (C.R.), Ex. C-02, Dep. of A. Lee Osterman
(Osterman Dep.), 11/9/12, at 11. Further, the WCJ expressly discredited the report
of Employer’s Physician, who “present[ed] the possibility that Claimant had sleep
issues prior to her 2007 injury date[;] [however,] the best he could do from his
record review was to write that he had insufficient information to make a
determination as to whether Claimant’s current [sleep] issues were related to her
2007 injury.” F.F. No. 10(b).
Further, we reject Employer’s argument, premised on Weney, that the
workers’ compensation authorities erred in failing to determine that Claimant’s
2013 review petition was barred by res judicata. To that end, like the WCJ and the
Board, we agree that Weney is distinguishable here. More particularly, in Weney
the record revealed “concrete evidence” in the form of medical testimony and a
diagnostic study that supported the determination that the claimant was aware of
14
the additional injury he sought to include and its work-relatedness during the
proceedings on his first review petition. Id. at 956. Here, however, the WCJ made
no finding that a physician specifically advised Claimant that her insomnia was
work-related prior to or during the proceedings on her 2010 review petition. This
is not surprising given that, in its brief to this Court, Employer points to no such
evidence. Although Employer attempts to cobble together various snippets from
the record that it claims support a factual determination that Claimant was aware
her insomnia and sleep disorder were work-related before or during the
proceedings on her 2010 review petition, it makes no clear assertion that a
physician actually informed Claimant of the work-relatedness of her insomnia
prior to or during those proceedings. More importantly, we will not reweigh the
evidence in order to arrive at such a factual determination. Elk Mountain Ski
Resort, Inc. v. Workers’ Comp. Appeal Bd. (Tietz, deceased, and Tietz-Morrison),
114 A.3d 27, 32 n.5 (Pa. Cmwlth. 2015) (“Our appellate role in a workers’
compensation case is not to reweigh the evidence ….”).
In addition, unlike in Weney, where the claimant filed successive
review petitions seeking to add separate injuries arising out of the original work
incident, Claimant here did not seek to add a separate injury through the filing of
her 2013 review petition. Rather, through her review petition, Claimant sought to
add insomnia to the established work injuries as a symptom (and consequence) of
her recognized CRPS. R.R. at 464a. Further, Claimant’s Physician credibly
opined that Claimant’s insomnia is “a symptom” of her accepted CRPS work
injury. C.R., Ex. C-02, Osterman Dep. at 19 (emphasis added). Thus, through her
15
2013 review petition, Claimant sought to clarify or refine the scope of her accepted
injury rather than attempting to add a new injury.
Further, in its brief to this Court, Employer omits the fact that, despite
reviewing the medical records and hearing transcripts that Employer claims
support its argument that Claimant previously knew or should have known her
insomnia was related to the accepted work injury, Employer’s Physician could not
render an unequivocal medical opinion on the issue of whether Claimant’s
insomnia was, in fact, work-related. F.F. No. 10(b); C.R., Employer’s Ex. D-05
(Report of David M. Raizen, M.D., Ph.D., at 4). Thus, while Employer asserts
Claimant “undoubtedly knew or should have known about this potential work-
related condition prior to filing the [2010] [r]eview [p]etition, and clearly before
filing the [2013] [r]eview [p]etition[,]” Employer’s own medical expert could not
render such an opinion. Pet’r’s Br. at 19.
Moreover, we agree with the workers’ compensation authorities that
this case is analogous to Knouse. There, we expressly sanctioned the filing of a
review petition as the proper vehicle for clarifying a claimant’s rights regarding the
description of an established work injury. As the WCJ found, that is essentially
what occurred here. Indeed, as the WCJ explained, Claimant’s 2013 review
petition sought “simply [to] clarify what was previously defined – her [CRPS] – as
causing her symptom of insomnia.” WCJ’s Interim/Interlocutory Decision, 5/3/13,
at 4; F.F. No. 9 (incorporating WCJ’s Interim/Interlocutory Decision into decision
granting Claimant’s 2013 review petition). Further, Claimant’s Physician credibly
opined Claimant’s insomnia was a symptom of her accepted CRPS diagnosis, and
16
his credited testimony in no way conflicts with the established description of the
work injury. Under these circumstances, we discern no error in the determinations
of the workers’ compensation authorities that Claimant’s 2013 review petition was
not barred by res judicata as it merely sought to clarify or refine Claimant’s rights
based on her accepted work injury.
Accordingly, we affirm.
ROBERT SIMPSON, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Redner's Markets, Inc. and :
Inservco Insurance Co., :
Petitioners :
:
v. : No. 98 C.D. 2015
:
Workers' Compensation Appeal :
Board (Renninger), :
Respondent :
ORDER
AND NOW, this 27th day of August, 2015, the order of the Workers’
Compensation Appeal Board is AFFIRMED.
ROBERT SIMPSON, Judge