R. Lucas v. WCAB (City of Sharon)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Lucas, :
Petitioner :
:
v. : No. 2606 C.D. 2015
: Submitted: September 30, 2016
Workers' Compensation Appeal :
Board (City of Sharon), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: December 20, 2016
This workers’ compensation appeal involves a claim for benefits for
cancer by a former firefighter. In particular, Robert Lucas (Claimant), petitions for
review of an order of the Workers’ Compensation Appeal Board (Board). The
Board reversed an order of Workers' Compensation Judge Alfred Benedict (WCJ),
which granted benefits under Section 108(r) of the Workers’ Compensation Act
(Act)1 for prostate cancer caused by occupational exposure to known carcinogens
during his employment as a firefighter. Ultimately, the Board determined
Claimant untimely filed his claim petition more than 600 weeks after his last date
1
Act of June 2, 1915, P.L. 736, as amended, added by the Act of December 6, 1972, P.L.
930, 77 P.S. §27.1(r). Section 301(c)(2) of the Act, 77 P.S. §411(2), provides that the term
“injury” as used in the Act shall include an “occupational disease” as defined in Section 108 of
the Act. The Act of July 27, 2011, P.L. 251, commonly known as Act 46, amended Section 108
to include: “(r) Cancer suffered by a firefighter which is caused by exposure to a known
carcinogen which is recognized as a Group 1 carcinogen by the International Agency for
Research on Cancer.” 77 P.S. §27.1(r).
of employment with exposure to hazards of the disease. For the reasons that
follow, we affirm.
I. Background
A. Medical-Only Claim Petition
In May 2012, Claimant filed a medical-only claim petition averring he
sustained prostate cancer as of January 5, 2000 as a result of direct exposure to
IARC (International Agency for Research on Cancer) Group I carcinogens while
working as a firefighter for the City of Sharon (Employer). Claimant sought
payment of all medical expenses related to his work injury. Employer filed an
answer denying Claimant’s averments.
B. Evidence
Based upon a review of the extensive evidence presented by both
parties, the WCJ granted Claimant’s claim petition, noting the medical evidence
supported his determination. Claimant, who was 61 years old at the time of the
WCJ’s 2012 hearing, testified on his own behalf. He joined Employer’s Fire
Department in November 1976. Claimant retired in March 2000. When hired,
Claimant underwent a physical. Claimant had no restrictions and was not treating
for any type of cancer. Thereafter, Claimant underwent yearly physicals and was
never treated for any type of cancer.
During his more than 23 years as a firefighter, Claimant probably
responded to over 400 fires. While fighting fires, Claimant suffered exposure to
2
various toxic substances, including Group 1 carcinogens. Claimant last fought a
fire in February 2000.
Claimant’s treating physicians first diagnosed Claimant with prostate
cancer in October 2009. Reproduced Record (R.R.) at 30. At the time of the
WCJ’s July 2012 hearing, Claimant was still being treated for cancer. R.R. at 33.
In support of his claim petition, Claimant submitted reports and
deposition testimony from Dr. Barry L. Singer (Claimant’s Expert), a physician
board certified in internal medicine, hematology and medical oncology.
Claimant’s Expert reviewed Claimant’s treatment records and Claimant’s affidavit
regarding his occupational history and exposure. Ultimately, Claimant’s Expert
opined that Claimant’s occupational exposure to Group 1 carcinogens while
working for Employer was considerable and constituted a substantial contributing
factor in the development of Claimant’s prostate cancer. R.R. at 115.
In response to Claimant’s evidence, Employer submitted the
deposition testimony of Dr. Tee L. Guidotti (Employer’s Expert), a physician
board certified in internal medicine, pulmonary medicine and occupational
medicine. R.R. at 240-42. Employer’s Expert opined there is insufficient evidence
to support a conclusion that, as a matter of general causation, firefighting causes
prostate cancer. Id. Therefore, Employer’s Expert did not offer an opinion as to
the specific causation of any firefighter’s prostate cancer. R.R. at 297.
3
C. Claim Petition Granted
Ultimately, the WCJ found Claimant’s Expert’s opinions and
conclusions more credible and persuasive than those of Employer’s Expert.
Consequently, the WCJ granted Claimant’s claim petition for medical benefits.
WCJ’s Op., 10/02/14, at 53-54. In support of his decision, the WCJ credited
Claimant’s testimony regarding the frequency and duration of exposure to
carcinogens while fighting fires, and that those carcinogenic substances would
remain on his gear and his skin for several days after fighting a fire. Id. The WCJ
also credited IRAC studies noting statistically significant increases in testicular,
brain and prostate cancers among firefighters. Id.
D. Board’s Reversal
On appeal, the Board reversed on the basis that Claimant failed to file
a timely claim. In so doing, the Board recognized that Section 301(f) of the Act,2
77 P.S. §414, requires that a claim for benefits under Section 108(r) of the Act be
filed within 600 weeks of the last date of employment with exposure to hazards of
the disease. Here, the Board reasoned (with emphasis added):
It is undisputed that Claimant last fought a fire in
February, 2000 and was presumably last exposed to the
hazards of the disease at that time. Giving him the
benefit of the doubt, he last worked as a firefighter and
was exposed to the hazards of the disease on March 31,
2000, as he testified he retired in March 2000. He did
not file his Claim Petition until May 18, 2012, which is
633 weeks after March 31, 2000. As it was not made
within 600 weeks, his claim was not timely and the WCJ
therefore erred in failing to dismiss the Claim Petition.
2
Added by the Act of July 7, 2011, P.L. 251.
4
Given our disposition, we need not address [Employer’s]
remaining challenges to the WCJ’s determination.
Bd. Op., 12/19/15, at 8-9.
The Board also rejected Claimant’s argument that even assuming
Section 301(f) creates a limitation on the time in which a firefighter diagnosed with
cancer has to file a claim petition, the discovery rule applies and therefore extends
the time for filing until the claimant learns, by a competent medical diagnosis, that
his disability is work-related. See Price v. Workmen's Comp. Appeal Bd.
(Metallurgical Resources), 626 A.2d 114 (Pa. Cmwlth. 1993). To that end, the
Board reasoned:
While an argument can be made that [Section 301(f)]
demands that an action be brought within a certain period
of time, it makes no reference to Section 315 [of the Act,
77 P.S. §602] and, when read in its entirety and in the
context of legislative history, we believe that at its core it
provides a 600-week window in which a claimant has a
right to file a claim for a Section 108(r) disease. In other
words, it limits potential liability by restricting the period
during which a cause of action may arise and an action
may commence. We believe that like a statute of repose,
at the end of the period specified, the cause of action
ceases to exist. Unlike a statute of limitations, the
expiration period limits the remedy and extinguished the
right of a claimant to benefits in the first place. [Sharon
Steel Corp. v. Workmen's Comp. Appeal Bd. (Myers)],
670 A.2d 1194 (Pa. Cmwlth. 1996).
Bd. Op. at 8.
5
Accordingly, the Board reversed the WCJ’s order granting Claimant’s
medical-only claim petition. Claimant petitions for review.3
II. Issues
Claimant presents two issues for our review. First, Claimant contends
the Board erred in misinterpreting Section 301(f) of the Act, 77 P.S. §414, as
requiring that a firefighter file a claim petition within 600 weeks of his last
occupational exposure in order to claim benefits under Section 108(r) of the Act.
Second, Claimant asserts, even assuming Section 301(f) creates a limitation on the
time in which a firefighter diagnosed with cancer has to file a claim petition under
Section 108(r), the discovery rule applies and therefore extends the time for filing.
III. Discussion
A. Relevant Statutory Provisions; Sladek
To begin, we note Section 301(c) of the Act, as amended by Act 46,
pertinently provides (with emphasis added):
(1) The terms ‘injury’ and ‘personal injury,’ as used in
this act, shall be construed to mean an injury to an
employe, regardless of his previous physical condition,
except as provided under subsection (f), arising in the
course of his employment and related thereto, and such
disease or infection as naturally results from the injury
….
3
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. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa.
2013).
6
(2) The terms ‘injury,’ ‘personal injury,’ and ‘injury
arising in the course of his employment,’ as used in this
act, shall include, unless the context clearly requires
otherwise, occupational disease as defined in section
108 of this act. Provided, That whenever occupational
disease is the basis for compensation, for disability or
death under this act, it shall apply only to disability or
death resulting from such disease and occurring within
three hundred weeks after the last date of employment in
an occupation or industry to which he was exposed to
hazards of such disease …. The employer liable for
compensation provided by … section 108, subsections
(k), (l), (m), (o), (p), (q) or (r), shall be the employer in
whose employment the employe was last exposed for a
period of not less than one year to the hazard of the
occupational disease claimed. …
77 P.S. §411(2).
Act 46 also amended Section 108 and added Section 301(f) of the Act.
Section 108, which lists compensable occupational diseases, now includes (with
emphasis added):
(r) Cancer suffered by a firefighter which is caused by
exposure to a known carcinogen which is recognized as a
Group 1 carcinogen by the [IARC].
77 P.S. §27.1.
Section 301(f) of the Act applies specifically to claims for
compensation for cancer suffered by a firefighter and caused by direct exposure to
certain carcinogens while performing firefighter duties. Section 301(f) provides
(with emphasis added):
7
Compensation pursuant to cancer suffered by a
firefighter shall only be to those firefighters who have
served four or more years in continuous firefighting
duties, who can establish direct exposure to a carcinogen
referred to in section 108(r) relating to cancer by a
firefighter and have successfully passed a physical
examination prior to asserting a claim under this
subsection or prior to engaging in firefighting duties and
the examination failed to reveal any evidence of the
condition of cancer. The presumption of this subsection
may be rebutted by substantial competent evidence that
shows that the firefighter’s cancer was not caused by the
occupation of firefighting. … Notwithstanding the
limitation under subsection (c)(2) with respect to
disability or death resulting from an occupational disease
having to occur within three hundred weeks after the last
date of employment in an occupation or industry to
which a claimant was exposed to the hazards of disease,
claims filed pursuant to cancer suffered by the firefighter
under section 108(r) may be made within six hundred
weeks after the last date of employment in an occupation
or industry to which a claimant was exposed to the
hazards of the disease. The presumption provided for
under this subsection shall only apply to claims made
within the first three hundred weeks.
77 P.S. §414.
In City of Philadelphia Fire Department v. Workers' Compensation
Appeal Board (Sladek), 144 A.3d 1011 (Pa. Cmwlth., 2016) (en banc), we vacated
an award of benefits under Section 108(r) for malignant melanoma contracted by a
firefighter based on the Board’s misinterpretation of the language in that provision.
In Sladek, we determined the Board misinterpreted Section 108(r) as indicating the
General Assembly established a causal relationship between any Group 1
carcinogen and any type of cancer. We noted the Board erroneously reasoned that
8
the claimant need not show exposure to a particular carcinogen in Group 1 or
establish the carcinogens to which he was exposed specifically caused his
malignant melanoma. See Sladek, 144 A.3d at 1021.
To the contrary, we observed, the General Assembly placed the words
caused by between cancer suffered by a firefighter and exposure to a known Group
1 carcinogen for a reason. Therefore, a claimant must prove his cancer is caused
by the Group 1 carcinogens to which he was exposed in the workplace. Id. If the
claimant can establish his cancer is an occupational disease under Section 108(r),
then the rebuttable presumptions in Sections 301(e) and (f) come into play. Id.
Further, in Sladek we reasoned that the presumption of causation in
Section 301(e)4 of the Act relieves the firefighter of the need to prove his
workplace exposure rather than some other reason caused his cancer. If the
firefighter can establish four years of continuous service and the absence of cancer
prior to that service, he is entitled to compensation under Section 301(f). Sladek,
144 A.3d at 1020.
Accordingly, we vacated the Board’s order in Sladek and remanded
for a determination as to whether the claimant’s medical evidence established that
4
Section 301(e) of the Act, 77 P.S. §413, which applies to occupational diseases
generally, provides (with emphasis added):
If it be shown that the employe, at or immediately before the date
of disability, was employed in any occupation or industry in which
the occupational disease is a hazard, it shall be presumed that the
employe’s occupational disease arose out of and in the course of
his employment, but this presumption shall not be conclusive.
9
melanoma is a type of cancer caused by the Group 1 carcinogens to which the
claimant suffered a work-related exposure.
B. Claimant’s Contentions
In the case at bar, Claimant contends the Board erred in interpreting
the provisions of Section 301(f) of the Act to require that a claimant, in order to
claim benefits under Section 108(r) of the Act, must file a claim petition within
600 weeks of his last occupational exposure to a hazard of the disease. Claimant
asserts the Board’s interpretation is inconsistent with the language in Sections
108(r), 301(c)(2), 301(e) and 301(f) of the Act and absurdly restricts a firefighter’s
ability to make an occupational disease claim in comparison to every other listed
occupational disease.
More specifically, Claimant asserts Act 46 placed cancer suffered by
firefighters caused by occupational exposure to carcinogens on Section 108’s list
of occupational diseases compensable under Section 301(c)(2) of the Act. Section
301(c)(2) requires that an occupational disease must “occur” or manifest within
300 weeks of the last date of the claimant’s exposure to the hazard. 77 P.S.
§411(2). The newly added Section 301(f), Claimant argues, modified the 300-
week manifestation period by extending it to 600 weeks. Claimant further argued
that the rebuttable presumptions of causation in Section 301(e) and compensability
in Section 301(f) are available for firefighters with a claimable disease diagnosed
within 300 weeks of their last work-related exposure to carcinogens.
10
Claimant further argues the Supreme Court rejected the Board’s
interpretation of the 300-week manifestation period in Section 301(c)(2) of the Act
as requiring that a claim petition be filed within that time period. See City of
McKeesport v. Workers' Comp. Appeal Bd. (Miletti), 746 A.2d 87 (Pa. 2000)
(proper focal point under Section 301(c)(2) is whether the occupational disease
occurred within 300 weeks of the claimant’s last exposure, regardless of when the
claim was filed). To that end, Claimant asserts, the three-year statute of limitations
in Section 315 of the Act, 77 P.S. §602, does not begin to run in occupational
disease cases until the claimant learns, by a competent medical diagnosis, that his
disability is work-related. Price.
Turning to the present case, Claimant argues that if the Board’s
erroneous interpretation of the 600-week period in Section 301(f) is correct, a
firefighter diagnosed with cancer will be the only employee diagnosed with an
occupational disease listed in Section 108 of the Act to be denied access to the
discovery rule. However, Claimant asserts there is no language in Section 301(f)
denying firefighters access to the discovery rule.
Therefore, Claimant maintains a proper reading of the language in
Sections 301(c)(2) and 301(f) of the Act indicates the legislature intended that a
firefighter may claim benefits for a disease diagnosed within 600 weeks of his last
occupational exposure to a Group 1 carcinogen, regardless of the date the claim
petition is filed. However, to claim the rebuttable presumption of compensability
in Section 301(f), the disease must be diagnosed within 300 weeks of such
exposure.
11
Here, Claimant’s doctors first diagnosed Claimant with prostate
cancer in 2009, plainly within 600 weeks (approximately 11.5 years) of his last
work exposure to IARC Group 1 carcinogens in February or March 2000.
Moreover, Claimant did not receive a medical report from his Expert relating his
cancer to his fire service until May 4, 2012. Therefore, Claimant argues the Board
erred in denying him access to the discovery rule and in reversing the WCJ’s
decision.
C. Analysis
Claimant’s appeal is one of a series of appeals to this Court involving
occupational disease claims under Section 108(r) of the Act for cancer allegedly
contracted as a result of exposure to certain carcinogens as a firefighter. As
discussed above, in Sladek, an en banc decision, we vacated an award of benefits
under Section 108(r) for malignant melanoma contracted by a firefighter based on
the Board’s misinterpretation of the language in the Act 46 amendments. In short,
we determined the Board misinterpreted Section 108(r) as indicating the General
Assembly established a causal relationship between any Group 1 carcinogen and
any type of cancer. In particular, we noted the Board erroneously reasoned that the
claimant need not show exposure to a specific carcinogen in Group 1 or establish
the carcinogens to which he was exposed specifically caused his malignant
melanoma. Accordingly, we remanded for a determination as to whether the
claimant’s medical evidence established that melanoma is a type of cancer caused
by the Group 1 carcinogens to which the claimant suffered a work-related
exposure.
12
Following Sladek, this Court filed decisions in Hutz v. Workers’
Compensation Appeal Board (City of Philadelphia), 147 A.3d 35 (Pa. Cmwlth.,
2016) and Demchenko v. Workers' Compensation Appeal Board (City of
Philadelphia), ___ A.3d ___ (Pa. Cmwlth., No. 2164 C.D. 2015, filed October 26,
2016), affirming the denial of Section 108(r) claims for compensation for prostate
cancer allegedly caused by exposure to carcinogens as a firefighter. In Hutz and
Demchenko, the claimants failed to establish a causal relationship between their
prostate cancer and their occupational exposure as a firefighter to Group 1
carcinogens.
Notably, in Sladek, Hutz and Demchenko we also addressed and
rejected arguments similar to Claimant’s primary arguments here. We
determined: Section 301(f) of the Act requires that a claim petition be filed (a)
within 300 weeks of the claimant’s last occupational exposure to a Group 1
carcinogen for the presumption of compensability to apply; (b) within 600 weeks
of the claimant’s last occupational exposure to a Group 1 carcinogen for the claim
to be compensable; and, (c) that the discovery rule, applicable to the three-year
statute of limitations in Section 315 of the Act, does not extend those respective
filing periods in Section 301(f).
Of greater relevance here, in Fargo v. Workers' Compensation Appeal
Board (City of Philadelphia), ___ A.3d ___ (Pa. Cmwlth., No. 2239 C.D. 2015,
filed October 11, 2016), we addressed and rejected the precise issues raised in the
present appeal. In Fargo, the WCJ dismissed the claimant’s claim petition seeking
benefits under Section 108(r) for several cancers on the basis that the claimant filed
13
the petition more than 600 weeks after his last day of work (the last day he could
have been exposed to a Group 1 carcinogen in the workplace).
On appeal, the Board affirmed. We summarized the Board’s
reasoning in Fargo as follows:
The Board rejected the argument by [c]laimant that the
600-week period referred to in Section 301(f) was merely
an extension of the 300-week manifestation period of
Section 301(c)(2) of the Act, 77 P.S. § 411(2), which
only requires that the symptoms of the disease manifest
within 300 weeks. The Board held that differences in the
language of these two provisions showed that the General
Assembly did not intend in Section 301(f) to simply
enlarge the manifestation period to 600 weeks for Section
108(r) occupational disease cases but instead created an
independent deadline for a claimant who seeks to file a
Section 108(r) claim. Addressing [c]laimant’s argument
that if Section 301(f) does not extend the 300-week
manifestation period of Section 301(c)(2) to 600 weeks it
should be interpreted as a statute of limitations as to
which the discovery rule applies, the Board determined
that, because the 600-week period of Section 301(f) was
triggered by a specific event independent of the accrual
of a remedy – namely the last day of exposure to a
workplace hazard – Section 301(f) acted as a statute of
repose rather than a statute of limitations. Therefore, the
Board rejected the application of a discovery rule to
Section 301(f), holding that this provision by its plain
language acts to permanently extinguish the Section
108(r) claim upon the running of 600 weeks.
Fargo, ___ A.3d at ___, Slip Op. at 6-7 (emphasis added).
Citing our rationale in Hutz, we affirmed the Board’s interpretation of
Sections 301(c)(2) and 301(f) of the Act. More specifically, we agreed that the
14
General Assembly enacted a distinct limitations period in Section 301(f), which
mandates that an occupational disease claim under Section 108(r) be filed within
600 weeks of the last date of workplace exposure to a Group 1 carcinogen. We
reasoned:
First, Section 301(f) sets itself apart from Section
301(c)(2) by providing that ‘[n]otwithstanding the
limitation under [Section 301(c)(2)] that disability or
death resulting from an occupational disease having to
occur within’ 300 weeks of the last date of workplace
exposure. 77 P.S. § 414 (emphasis added). Section
301(f) next provides that ‘claims filed pursuant to ...
section 108(r) may be made within’ 600 weeks of the last
date of workplace exposure. Id. (emphasis added). The
language is echoed in the last sentence of Section 301(f)
that ‘[t]he presumption provided for under this subsection
shall only apply to claims made within the first three
hundred weeks.’ Id. (emphasis added). Section
301(c)(2), by contrast, provides that when occupational
disease is the basis for compensation under the Act, the
Act ‘shall apply only to disability or death resulting from
such disease and occurring within’ 300 weeks of the last
date of workplace exposure. Thus, by [its] plain text, the
limitation period of Section 301(f) requires that claims
‘be made,’ or filed, within 600 weeks while Section
301(c)(2) requires that the disability or death that is the
basis for the claim for compensation is ‘occurring,’ or
manifesting, within 300 weeks.
Fargo, ___ A.3d at ___, Slip Op. at 8-9 (footnote omitted). In short, we recognized
that the key difference between the limitations periods in Sections 301(c)(2) and
301(f) is not the date upon which the periods start, but rather what must take place
before the periods end. Id. In the case of Section 301(c)(2), disability or death
from the disease must occur within 300 weeks. Id. In the case of Section 301(f),
15
the claimant must file the claim within 600 weeks of the last date of workplace
exposure to a Group 1 carcinogen. Id.
Further, we determined this approach was consistent with our
rationale in Hutz, wherein we held that the date of filing of the claim was
determinative as to the applicability of the 300-week presumption of
compensability in Section 301(f). We then summarized the requirements of
Section 301(f)’s two-tiered limitations period for Section 108(r) occupational
disease claims as follows:
First, a claimant must file the claim within 300 weeks of
the last date of work with exposure to a known Group 1
carcinogen; if the claimant fails to do so, he is not
foreclosed from bringing a claim by Section 301(f), but
he loses the statutory presumption of Sections 301(e) and
301(f). However, if the claimant does not file the claim
until more than 600 weeks after the date of last
workplace exposure, the claimant is foreclosed from
bringing that claim in its entirety.
Fargo, ___ A.3d at ___, Slip Op. at 10-11.
We also rejected Claimant’s contention that if Section 301(f) requires
a claim under Section 108(r) be filed within 600 weeks of the last date of
workplace exposure, then it is subject to a discovery rule to extend the time for
filing. In brief, we agreed with the Board that the 600-week period in Section
301(f) acts as a statute of repose and is not subject to the discovery rule, which
applies to the three-year statute of limitations in Section 315 of the Act, 77 P.S.
§602. See Westinghouse Elec. Corp./CBS v. Workers’ Comp. Appeal Bd.
(Korach), 883 A.2d 579, 588 n.11 (Pa. 2005) (a statute of repose, unlike a statute
16
of limitations, is substantive rather than procedural and extinguishes both the
remedy and the cause of action; thus, a statute of repose may also prevent the
accrual of a cause of action where the final element necessary for its creation
occurs beyond the time period established by the statute).
In Westinghouse, the Supreme Court noted that a statute of repose
typically sets a triggering event as something other than the point at which the
cause of action arises. In Section 301(f), the triggering event is not the date of
injury or disability, but rather the claimant’s last day of work with exposure to a
known carcinogen. Fargo. As such, a diagnosis or knowledge that a condition is
work-related is irrelevant to the triggering event of the Section 301(f) limitations
period, which is the last date of workplace exposure. Id. Therefore, once 600
weeks elapse from the date of the claimant’s last workplace exposure, the
claimant’s cause of action ceases to exist.5 Id.For these reasons, we discern no error in the Board’s determination
that Claimant’s claim petition, filed more than 633 weeks after his last day of work
as a firefighter for Employer, was untimely filed. Accordingly, we affirm the
Board’s order reversing the WCJ’s order granting Claimant’s claim petition.
ROBERT SIMPSON, Judge
5
Notably, in Section 108(r) cases, the discovery rule could still toll the statute of
limitations in Section 315 where the claimant is not aware of the possible work-related nature of
his cancer, provided the claim is filed prior to the expiration of the 600-week period in Section
301(f).
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Lucas, :
Petitioner :
:
v. : No. 2606 C.D. 2015
:
Workers' Compensation Appeal :
Board (City of Sharon), :
Respondent :
ORDER
AND NOW, this 20th day of December, 2016, for the reasons stated in
the foregoing opinion, the order of the Workers' Compensation Appeal Board is
AFFIRMED.
ROBERT SIMPSON, Judge