County of Berks v. WCAB (Nagle) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA County of Berks, Petitioner v. Workers' Compensation Appeal Board (Nagle), Respondent BEFORE: : : : : : : : : No. 2325 C.D. 2010 Submitted: April 21, 2011 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: August 11, 2011 County of Berks Prison (Employer) appeals the April 27, 2009, Decision and Order of the Workers Compensation Appeal Board (Board) which affirmed the decision of the Workers Compensation Judge (WCJ) who granted David Nagle s (Claimant) Claim Petition (Petition) against the County of Berks (Employer) and its third party administrator, The PMA Group. In the April 27, 2009, Decision, the Board remanded to the WCJ for the calculation of Claimant s Average Weekly Wage. Following the Board s April 27, 2009, decision, Employer timely submitted a Petition for Review to this Court for a determination of, inter alia, whether the Board erred inasmuch as it affirmed the WCJ s findings. On June 23, 2009, this Court issued an Order quashing Employer s Petition for Review after the Court determined that due to the remand to the WCJ the appeal dated April 27, 2009, was interlocutory and unappealable pursuant to Pa. R.A.P. 311(f). On February 19, 2010, the WCJ issued an Order adopting the Stipulation of counsel regarding Claimant s Average Weekly Wage. By Order and Opinion dated September 29, 2010, the Board determined that its April 27, 2009, Opinion and Order were final and authorized the Employer s challenge to the Board s Order of April 27, 2009, regarding the issues unrelated to Claimant s Average Weekly Wage. On appeal before this Court, Employer asserts that the Board s April 27, 2009, Decision must be reversed to the extent that it affirmed the WCJ s December 28, 2007, Decision and Order that granted Claimant s Petition.1 Background Claimant testified that he was 58 years of age and employed by Employer as a correctional officer for more than eight years. Notes of Testimony (N.T.), December 5, 2006, at 4-5. On September 19, 2006, Claimant was in the course of his employment when he responded to an emergency and went to assist another officer. N.T., 12/5/06, at 5. As he did so, he felt something shift in his left knee. N.T. 12/5/06, at 5-6. Approximately an hour later, he responded to another emergency assistance call, but the area was secured when he arrived. N.T. 12/5/06, at 5. Claimant did not report either incident because he was accustomed to pain in his knees and he did not believe he sustained an injury. N.T. 12/5/06, at 7. 1 On December 15, 2010, Claimant applied to have the instant matter consolidated with Commonwealth Court matter County of Berks v. Workers Compensation Appeal Board (Nagle), No. 2324 CD 2010. By Order dated December 15, 2010, this Court denied Employer s Application for Consolidation. 2 The following day, Claimant s left knee was swollen and painful and he had a large bruise on his right thigh. N.T. 12/5/06, at 8. He then telephoned his supervisor, Sergeant Tassone, reported the previous day s events, and asked to see the panel physician. N.T. 12/5/06, at 8-9. Claimant called US Healthworks (Healthworks) and was informed to gather his prior medical records before he scheduled an appointment. N.T. 12/5/06, at 9. He obtained his records and saw the physician on September 22. N.T. 12/5/06, at 10. Claimant was placed on restricted duty, primarily sitting duty, with no stooping, bending, kneeling, or crawling, and limited walking. N.T. 12/5/06, at 10. Employer did not provide work within those restrictions, and Claimant has not worked since September 19, 2006. On September 27, 2006, Healthworks performed an X-ray and referred him to Thomas Meade, M.D. (Dr. Meade), at Orthopedic Associates of Allentown. N.T. at 12. Also, Claimant saw Dr. Spangler on September 29, 2006. A magnetic resonance imaging (MRI) was performed on October 4th on his left knee. N.T. at 12. Claimant related his prior knee injuries.2 Claimant also testified that he did not miss any time from work after April, 2003, until the September 2006, 2 On cross-examination, Claimant outlined his prior medical history. He underwent left knee medial collateral ligament (MCL) repair in 1976. N.T. at 17. He underwent bilateral meniscectomies in 1989. N.T. at 17. Both injuries involved non-work-related traumatic falls and were performed by Dr. Marchinski. N.T. at 10. Claimant had another left knee injury in 2002 and underwent another surgery. The WCJ noted that the Employer s May, 2003, Supplemental Agreement treated the 2002 surgery as a recurrence of the 2000 injury. Dr. Meade performed surgery for a January, 2003, left knee injury. N.T. at 10. Claimant further testified that when he returned to work in 2003, he passed a physical examination that required him to run and climb ladders. N.T. 30-31. At another hearing on April 17, 2007, Claimant testified that in addition to his left knee replacement surgery, Claimant underwent subsequent right knee arthroscopic surgery. In 2005, (Footnote continued on next page ¦) 3 incidents. Claimant received non-occupational benefits that were exhausted as of December 3, 2007. In further support of his Petition, Claimant offered the April 13, 2007, deposition testimony of Dr. Meade, a Pennsylvania- licensed physician since 1984, Board-certified in orthopedic surgery in 1991, re-certified in 2001. His practice was focused on disorders of the knees and knee surgery. Dr. Meade testified that he first saw Claimant on March 21, 2000, for a second opinion concerning his work-related left knee injury. Deposition of Dr. Meade (Dr. Meade Deposition), April 13, 2007, at 5; Reproduced Record (R.R.) at 334a. He performed the April 3rd surgery to repair and re-construct the anterior cruciate ligament (ACL) and to repair the medial and lateral meniscus tears and the joint-lining cartilage. Dr. Meade Deposition at 6; R.R. at 335a. He performed repeat arthroscopic surgery on September 26, 2002, and removed part of the lateral and medial menisci. Dr. Meade Deposition at 6; R.R. at 335a. At that time his ACL was intact and functioning, and Claimant was released to full-duty work. Dr. Meade next saw Claimant on October 27, 2006, and Claimant reported the September 19, 2006, injury. Dr. Meade Deposition at 7; R.R. at 336a. Upon physical examination, Dr. Meade testified that there was a complete tear of the previous reconstructed anterior cruciate ligament, there was a significant tear of (continued ¦) Claimant received injections to both knees, and fluid was aspirated from his left knee. N.T. 4/17/07, at 13. Before September 19, 2006, Claimant was able to walk and run without limitation. N.T. 12/5/06, at 30. 4 his posterior cruciate ligament, chondromalacia of the kneecap, arthritis on the medial and lateral compartments, and some knee swelling. Dr. Meade Deposition at 8; R.R. at 337a. Dr. Meade released Claimant to sedentary work, and recommended left knee replacement, which he then performed on December 21. Dr. Meade Deposition at 9-10; R.R. at 338a-339a. Claimant has not worked since that surgery. Also, Dr. Meade further noted that Claimant complained of right knee pain, so he ordered a December, 2006, MRI. Dr. Meade performed outpatient arthroscopic surgery on January 29, 2007. Dr. Meade Deposition at 13; R.R. at 342a. Dr. Meade also opined to a reasonable degree of medical certainty that there was a causal relationship between the diagnosed tear of the ACL and posterior cruciate ligament (PCL) and the events of September 19, 2006. Dr. Meade Deposition at 15; R.R. at 344a. In defense to Claimant s Petition, Employer offered the April 30, 2007, deposition testimony of John Duda, M.D. (Dr. Duda), a Pennsylvanialicensed physician since 1974, Board-certified in orthopedic surgery in 1981. Dr. Duda examined Claimant on December 13, 2006. Claimant reported his past Dr. Duda testified that [t]here were medical history and his complaints. indications on his [Claimant s] physical exam that he was trying to manipulate the results of the exam. Deposition of Dr. Duda (First Dr. Duda Deposition), April 30, 2007, at 16; R.R. at 197a. Dr. Duda explained that, based on Claimant s history and physical examination, Claimant s condition was a natural progression 5 of his pre-existing degenerative condition. First Dr. Duda Deposition, 4/30/07, at 25-25; R.R. at 206a-207a. Employer took a second deposition of Dr. Duda on July 11, 2007, based upon his May 23, 2007, evaluation. Dr. Duda reiterated that there was no relationship between the arthritic changes of the left knee, the need for the replacement surgery, and the events of September 19, 2006. Deposition of Dr. Duda, July 11, 2007, at 19; R.R. at 298a. The WCJ granted the Petition and made the following pertinent findings of fact and conclusions of law: 8. ¦ (Claimant s objection to Employer s offer of his Family and Medical Leave Act application was sustained, as it contains the medical opinion of a professional who did not testify; Employer Exhibit 3 was not admitted.) ¦. 24. I find the testimony of Claimant, offered at three hearings, competent, credible, consistent, logical, and persuasive. He was not magnifying his injury or his symptoms. He successfully performed his job duties, despite conservative treatment, over a long time, until the work incident required two surgical interventions. He then returned to work when it was made available. 25. I find the testimony of Dr. Meade, who performed numerous procedures upon the Claimant s knees, competent, credible, logical, consistent with Claimant s history, subjective symptoms, objective signs, and the diagnostic studies and operative findings, and persuasive. Claimant admittedly had a pre-existing condition of arthritis in both knees, far worse on the left, and numerous prior surgeries. His 6 already badly degenerated knees were made worse by the work-related incident. Dr. Meade credibly opined that, had the September 2006 incident not occurred, Claimant [Claimant] would not have needed his left knee replacement as early as he did. The need for surgery was accelerated by the incident. Section 204(a)[3]. Likewise, although the September 2006, incident did not cause the degenerative tearing in his right knee, it was not merely coincidental. Although his left knee was more obviously injured and symptomatic, he complained of right knee pain, and the eventual surgery showed that there were abnormal conditions in it. The degeneration process was made painfully symptomatic by the incident, requiring the surgical procedure. Had the incident not occurred, the surgery would not have been necessary. 26. I find the testimony of Dr. Duda competent, but not as credible as the fully credible testimony of Dr. Meade. To suggest that the September 19th incident, as credibly described, is coincidental and totally unrelated to his worsening degenerative condition is not logical. He discounted the September, 2006, incident as nothing more than limited strains and sprains, yet the subsequent clinical examinations, objective findings, and diagnostic studies are not consistent with such a minor injury. His questioning of Claimant s statements, that I find fully credible, detracts from his objectivity and the validity of his opinions. 27. I find that Claimant suffered September 19, 2006, work-related injuries of left and right knee strains, sprains, contusions, and bilateral aggravation of degenerative joint disease, resulting in the accelerated need for left knee replacement and the need for right knee arthroscopic surgery. 3 The Workers Compensation Act (Act) Act of June 2, 1915 P.L. 736, as amended, 77 P.S. §71(a). 7 28. I find that Claimant was totally disabled from his time-of-injury job of correctional officer from September 20, 2006, to July 1, 2007, inclusive, and is entitled to TTD [temporary total disability] benefits, based upon his $1,034.75 AWW [average weekly wage], in accordance with the provisions of the Act, as amended. 29. The Health and Welfare Fund is entitled to reimbursement from Employer of its subrogation liens, with statutory interest from its respective dates of payments as stated on the exhibits, with 20% deducted and paid to Claimant s counsel as a reasonable fee. ¦. 2. Claimant has met the burden of proving that he sustained bilateral knee injuries on September 19, 2006, resulting in periods of compensable total and partial disability and in medical treatment, including left knee replacement and right knee arthroscopy. 3. Claimant incurred recoverable health care expenses. WCJ s Decision, December 28, 2007, (Decision), Findings of Fact Nos. 8 and 2429 and Conclusions of Law Nos. 2 and 3 at 12-13; R.R. at 34a-36a. (emphasis in original.) Initially, the Board affirmed the decision of the WCJ but remanded in part for a specific determination of Claimant s weekly wage. The Board reviewed the merits of Employer s other challenges to the WCJ s Decision at the time of remand: After a careful review of the record, we determine that the WCJ s Decision is supported by substantial, competent evidence. The WCJ accepted Dr. Meade s credible testimony that Claimant s tear of his left ACL and PCL, and his right knee partial medial meniscus tear 8 were caused by the events of September 19, 2006. Therefore, the WCJ s determination that these injuries were the result of the September 19, 2006 incident was supported by substantial, competent evidence. ¦. Based on his review of the testimony, the WCJ found that, despite Claimant s pre-existing arthritis in both knees, his surgeries were necessitated by the September, 2006 [sic] work incident. This determination is supported by Dr. Meade s testimony. Section 422(a) does not require that a WCJ set forth in detail the process by which he arrived at such a determination. Sherrod v. WCAB (Thoroughgood, Inc.), 666 A.2d 383 (Pa. Cmwlth. 1995). It is sufficient that he state in a clear and concise manner what the determination was, as here. ¦. During a hearing held on April 17, 2007, in which Claimant was offering testimony, Defendant [Employer] attempted to offer into evidence Claimant s Family and Medical Leave Act application. (N.T., 4/17/07 at 20-21). Claimant did not initially object to Defendant s [Employer s] offer of the document because it was already included in the record, as it was admitted during Dr. Meade s testimony. (Id. at p.22). When asked by the WCJ what its purpose was for offering the document, Defendant [Employer] stated that it was to show that Claimant had initially planned on going out of work in June or July for his knees, but subsequently went out of work in September. (Id. at 23). Claimant then indicated that it objected to the admission of the document for that purpose, and the WCJ did not admit the document, stating that it was not relevant for any probative purpose. (Id.) In Finding of Fact Number 8, the WCJ indicated that the document was not admitted because it contained the opinion of a professional that did not testify. Defendant [Employer] maintains that the WCJ erred in not admitting the document because it was an exception to the hearsay rule. However, in initially rejecting the admission of the document, the WCJ noted that it was not relevant for any probative purpose. Because the admission of evidence, and whether it has any probative value, is within the discretion of the WCJ, we reject Defendant s [Employer s] argument. The WCJ indicated 9 that the document did not have any relevant probative value, therefore, whether the document fit within an exception to the hearsay rule was irrelevant. ¦. Because the WCJ ultimately concluded that Claimant s bilateral knee injuries were the result of his employment with Defendant [Employer], it was proper for the WCJ to find it responsible for the payment of his out of pocket expenses associated with those injuries. ¦. Because Claimant was successful in the litigation of his Claim Petition, he was entitled to litigation costs; therefore, the WCJ did not err in awarding him such costs. Board s Decision, April 27, 2009, at 8-14; R.R. 59a-65a. I. Whether Claimant s Medical testimony was Equivocal? Initially, Employer contends4 that the Board erred in affirming the WCJ s Decision to grant the Claimant s Petition because Dr. Meade s medical testimony is equivocal and, therefore, incompetent.5 In a claim petition the claimant bears the burden of proving all elements necessary to support an award. Innovative Spaces v. Workmen s Compensation Appeal Board (DeAngelis), 646 A.2d 51 (Pa. Cmwlth. 1994). To sustain an award, the claimant has the burden of establishing that he suffered a 4 This Court s review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen s Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991). 5 Medical testimony offered to meet the burden of proof must be offered unequivocally. Jones v. Workers Compensation Appeal Board (J.C. Penny Co.), 747 A.2d 430 (Pa. Cmwlth. 2000). 10 work-related injury and this injury resulted in disability.6 If the causal relationship between the claimant s work and the injury is not clear, the claimant must provide unequivocal medical testimony to establish a relationship. Holy Family College v. Workmen s Compensation Appeal Board (KYCEJ), 479 A.2d 24 (Pa. Cmwlth. 1984). In order for medical testimony to constitute competent medical evidence, such testimony must be unequivocal. Moore v. Workers Compensation Appeal Board (American Sintered Technologies, Inc.), 759 A.2d 945, 949 (Pa. Cmwlth. 2000), appeal denied 566 Pa. 653, 781 A.2d 150 (2001). Medical evidence is unequivocal if the medical expert, after providing a foundation, testifies that in his medical opinion he believes or thinks the facts exist. Frye v. Workers Compensation Appeal Board (Super Moche), 762 A.2d 428, 430 (Pa. Cmwlth. 2000). Whether medical testimony is equivocal is a question of law, fully reviewable by this Court, and is to be determined by reviewing the entire testimony of the medical witness. Moore, 759 A.2d at 949. Dr. Meade gave direct testimony in response to the question whether there was a causal relationship between the diagnosed tear of the medial meniscus and the events of September 19, 2006: With a reasonable degree of medical certainty, I do believe his emergency response injury significant enough to cause an ACL/PCL injury left knee, also sustained an 6 For workers compensation purposes, disability is equated with a loss of earning power. Inglis House v. Workmen s Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993). 11 injury to the right knee; albeit not severe, but enough to cause a 20 percent tear of his medial meniscus. ¦. He [Claimant] perhaps, despite his underlying posttraumatic work-related arthritis from the previous injuries, may have been stabilized for a long period of time even indefinitely. We would not be sitting here doing a knee replacement on David [Claimant] had it not been for that reinjury in September of 06. Meade Deposition at 16-18; R.R. at 345a-347a. This Court must conclude Claimant shouldered his burden to prove that he sustained a work related disability through substantial, credited, and unequivocal testimony that Claimant sustained left and right knee injuries on September 19, 2006. II. Whether the WCJ Properly Precluded Probative Evidence in the Nature of a Family and Medical Leave Act Form that Established Claimant Requested to be Off Work Prior to the Alleged Work Related Injury? Employer also argues that the WCJ precluded probative evidence in the nature of a Family and Medical Leave Act (FMLA) form. More specifically, Employer asserts that the FMLA form would establish that Claimant requested leave prior to the alleged work related injury on September 19, 2006. At the hearing on April 17, 2007, the Employer attempted to submit the Claimant s FMLA form into evidence: Judge Knox: Well, are you offering this as impeachment of claimant s credibility or are you offering it in support of a medical opinion? Mr. Salvino: I m not offering it in support of a medical opinion to the extent that Dr. Meade did cover that, Your 12 Honor. I am for credibility as it goes to the work injury, Your Honor. Judge Knox: How is what the doctor puts down an attack on the credibility of the Claimant? Mr. Salvino: To this extent, Your Honor. Claimant was planning, by all indications, my argument is, that he was planning to go out of work in May or June for his knees, Your Honor. Mr. Smith: because--- Well, Your Honor, now I object to that Judge Knox: Yeah. Employer 3 [Exhibit] is not allowed. It s not admitted. It s not relevant for any probative purpose. N.T. at 23; R.R. at 173a. In his decision, the WCJ noted that the FMLA form was not admitted because it contained the opinion of a professional that did not testify. Decision, Finding of Fact No. 8 at 4; R.R. at 27a. The WCJ was aware that Claimant had preexisting knee conditions, but nevertheless found Dr. Meade and Claimant more credible than Dr. Duda. It is well settled that the admission of evidence is within the sound discretion of the WCJ. Coyne v. Workers' Compensation Appeal Board (Villanova University), 942 A.2d 939 (Pa. Cmwlth.), petition for allowance of appeal denied, 599 Pa. 683, 960 A.2d 457 (2008); Atkins v. Workers' Compensation Appeal Board (Stapley in Germantown), 735 A.2d 196 (Pa. Cmwlth. 1999). In addition, a WCJ may properly exclude evidence which is irrelevant, confusing, misleading, cumulative, or prejudicial. 1st Steps International Adoptions, Inc. v. Department of Public 13 Welfare, 880 A.2d 24 (Pa. Cmwlth. 2005). Finally, a WCJ s determination regarding the admission of evidence will not be overturned without a showing of an abuse of that discretion. Atkins.7 The Board determined that the WCJ properly exercised its discretion when he excluded the FMLA form and concluded whether it fit within an exception to the hearsay rule was not determined. This Court discerns no error in the Board s determination. The Claimant conceded that he had preexisting knee problems and the WCJ clearly took that into account when he rendered his decision: Claimant admittedly had a pre-existing condition of arthritis in both knees, far worse on the left, and numerous prior surgeries. His already badly degenerated knees were made worse by the work-related incident. Dr. Meade credibly opined that, had the September 2006, incident not occurred, Claimant would not have needed his left knee replacement as early as he did. WCJ s Decision, Finding of Fact No. 25 at 12; R.R. at 35a. Additionally, the WCJ acknowledged that Dr. Meade agreed that there was a recommendation for evaluation for knee replacement before the 7 As this Court has recently noted, [a]n abuse of discretion occurs where the WCJ's judgment is manifestly unreasonable, where the law is not applied or where the record shows that the action is a result of partiality, prejudice bias or ill will. Allegis Group and Broadspire v. Workers' Compensation Appeal Board (Coughenaur), 7 A.3d 325, 327 n. 3 (Pa. Cmwlth. 2010). 14 September 2006 work incident. Decision, Finding of Fact No. 14, at 6-7; R.R. at 29a-30a. Thus, the admission of the FMLA form would be merely cumulative to the testimony offered by the Claimant and the deposition of Dr. Meade. As a result, the WCJ did not abuse his discretion in failing to admit into evidence the FMLA form. See Haines v. Workmen's Compensation Appeal Board (Clearfield County), 606 A.2d 571, 578 (Pa. Cmwlth. 1992) ( Under these circumstances, it was within the [WCJ]'s discretion to reject the complaint and accompanying affidavit as cumulative evidence corroborative of the deputy sheriff's hearing testimony which, as discussed above with respect to fact-finding 12, established Claimant's participation in the November 24 incident was not initiated by the deputy sheriff.... ) (citations omitted). This Court finds no error by the Board in its review of this issue. III. Whether the WCJ s Decision is unreasoned? Employer argues that the Board committed an error of law when it affirmed the Decision of the WCJ because the WCJ failed to issue a reasoned decision with respect to inconsistencies in the testimony. Section 422(a) of the Act, 77 P.S. §834, provides: Neither the board nor any of its members nor any workers compensation judge shall be bound by the common law or statutory rules of evidence in conducting any hearing or investigation, but all findings of fact shall be based upon sufficient competent evidence to justify same. All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the 15 rationale for the decisions so that all can determine why and how a particular result was reached. The workers compensation judge shall specify the evidence upon which the workers compensation judge relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the workers compensation judge must adequately explain the reasons for rejecting or discrediting competent evidence. Uncontroverted evidence may not be rejected for no reason or for an irrational reason; the workers compensation judge must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review. In Daniels v. Workers Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 78, 828 A.2d 1043, 1053 (2003), our Pennsylvania Supreme Court stated that absent the circumstance where a credibility assessment may be said to have been tied to the inherently subjective circumstances of witness demeanor, some articulation of the actual objective basis for the credibility determination must be offered for the decision to be a reasoned one which facilitates effective appellate review. (Footnote omitted and emphasis added). Our Pennsylvania Supreme Court further explained in Daniels that where the factfinder has had the advantage of seeing the witness testify and assessing their demeanor, a mere conclusion as to which witness was deemed credible, in the absence of some special circumstance, could be sufficient to render the decision adequately reasoned. Id. at 77, 828 A.2d at 1053. This Court is satisfied that the WCJ issued a reasoned and exceptional decision with respect to this issue. In Findings of Facts Nos 24-28, the WCJ clearly articulated the basis for his acceptance of the Claimant s and Dr. Meade s 16 testimony over that of Dr. Duda. The WCJ explained that Dr. Duda s questioning of Claimant s statements ¦ detracts from his objectivity and the validity of his opinions. Decision, Finding of Fact No. 26 at 12; R.R. at 35a. IV. Whether the WCJ Failed to Issue a Reasoned Decision with Respect to the Finding that Claimant Suffered a Work-Related Right Knee Injury? Lastly, Employer argues that the Board committed an error of law when it affirmed the Decision of the WCJ because the WCJ s determination that Claimant suffered a right knee injury as a result of the September 19, 2006, work incident was not a reasoned decision. Once again, the WCJ outlined and highlighted Dr. Meade s opinion that the right knee injury was work-related and explained his reasoning for finding Dr. Meade credible. This Court finds no error in the Board s determination that the WCJ issued a reasoned decision. Accordingly, the order of the Board is affirmed. ____________________________ BERNARD L. McGINLEY, Judge Senior Judge Kelley concurs in the result only 17 IN THE COMMONWEALTH COURT OF PENNSYLVANIA County of Berks, Petitioner v. Workers' Compensation Appeal Board (Nagle), Respondent : : : : : : : : No. 2325 C.D. 2010 ORDER AND NOW, this 11th day of August, 2011, the order of the Workers Compensation Appeal Board in the above- captioned matter is affirmed. ____________________________ BERNARD L. McGINLEY, Judge

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