              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward Dixon,                           :
                         Petitioner     :
                                        :
                  v.                    :
                                        :
Workers’ Compensation Appeal            :
Board (Medrad, Inc.),                   :   No. 1700 C.D. 2014
                      Respondent        :   Submitted: May 29, 2015



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE ANNE E. COVEY, Judge


OPINION BY
JUDGE COVEY                                 FILED: March 30, 2016

            Edward Dixon (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) August 29, 2014 order
affirming the Workers’ Compensation Judge’s (WCJ) decision granting Medrad,
Inc.’s (Employer) suspension petition (Suspension Petition), denying Claimant’s two
penalty petitions, and modifying the WCJ’s decision to reflect that Claimant’s
Challenge to Employer’s Notification of Suspension (Challenge Petition) was
granted. Claimant presents three issues for this Court’s review: (1) whether the WCJ
erred by suspending Claimant’s total disability benefits; (2) whether the WCJ erred
by not granting Claimant’s penalty petition for failing to pay Claimant’s
disfigurement benefits after Claimant’s temporary total disability benefits had been
suspended (First Penalty Petition); and (3) whether the WCJ erred by not granting
Claimant’s penalty petition for the Employer’s failure to reinstate Claimant’s WC
benefits when the WCJ did not hold a hearing on Claimant’s Challenge Petition
within 21 days (Second Penalty Petition).
              On December 26, 2002, Claimant sustained a work injury described as a
cervical strain, and began receiving weekly WC benefits pursuant to a Notice of
Temporary Compensation Payable, which converted to a Notice of Compensation
Payable by operation of law. By May 28, 2010 WCJ Decision and Order, 30 weeks
of disfigurement benefits were awarded for Claimant’s cervical surgical scar. By
July 29, 2011 Notification of Suspension or Modification, Employer notified
Claimant that as of July 25, 2011, his benefits were being suspended based on his
return to work at earnings equal to or greater than his pre-injury earnings. On August
3, 2011, Employer filed its Suspension Petition alleging that it had offered Claimant a
specific job within his physical capacity and that Claimant returned to work as of July
25, 2011, but stopped working again on August 3, 2011. Employer also sought a
supersedeas. On August 8, 2011, Claimant filed his Challenge Petition.
              On September 6, 2011, Claimant filed his First Penalty Petition alleging
that Employer failed to pay disfigurement benefits in accordance with the WCJ’s
May 28, 2010 order. Claimant sought a 50% penalty and counsel fees. Also on
September 6, 2011, Claimant filed his Second Penalty Petition alleging that Employer
violated Section 413(c) of the WC Act (Act).1 Therein, Claimant correspondently
sought a 50% penalty on all past-due benefits and counsel fees. By January 9, 2013
order, having found that the offered position was available to Claimant, and that
Claimant did not exercise good faith in his attempt to return to work, the WCJ
granted Employer’s Suspension Petition and denied Claimant’s Challenge Petition.
The WCJ also denied Claimant’s First Penalty Petition because the disfigurement
benefits would not become due until the temporary total disability benefits were
terminated or suspended, and Claimant’s temporary total disability benefits were only
temporarily suspended between July 25, 2011 and August 2, 2011 while Claimant

       1
         Act of June 2, 1915, P.L. 736, as amended, added by Section 2 of the Act of July 1, 1978,
P.L. 692, 77 P.S. § 774.2.
                                                2
was working.2       Finally, the WCJ denied the Second Penalty Petition because
Claimant’s Challenge Petition was not assigned to the WCJ until August 11, 2011, on
which date the WCJ had already scheduled the supersedeas hearing for September 7,
2011, and issued a Supersedeas Order on September 9, 2011, and thus the hearing
was timely. Claimant appealed to the Board. On August 29, 2014, the Board
affirmed the WCJ’s decision granting the Suspension Petition and denying the First
and Second Penalty Petitions, and modified the WCJ’s decision to reflect that
Claimant’s Challenge Petition was granted. Claimant appealed to this Court.3
              Claimant first argues that the WCJ erred by suspending Claimant’s total
disability benefits because the job Employer offered exceeded Claimant’s restrictions.
We disagree.

              Generally, in order to suspend a claimant’s benefits, an
              employer must meet the following requirements:
                   1. The employer who seeks to modify a claimant’s
                   benefits on the basis that he has recovered some or
                   all of his ability must first produce medical evidence
                   of a change in condition.
                   2. The employer must then produce evidence of a
                   referral (or referrals) to a then open job (or jobs),
                   which fits in the occupational category for which
                   the claimant has been given medical clearance, e.g.,
                   light work, sedentary work, etc.
                   3. The claimant must then demonstrate that he has
                   in good faith followed through on the job referral(s).



       2
         Claimant’s temporary total disability benefits were reinstated as of August 3, 2011.
       3
        “On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).



                                                3
                 4. If the referral fails to result in a job[,] then
                 claimant’s benefits should continue.
             Kachinski v. Workmen’s Comp[.] Appeal B[d.] (Vepco
             Constr[.] Co.), . . . 532 A.2d 374, 380 ([Pa.] 1987).
             Pursuant to Section 306(b)(2) of the [Act], an employer
             may establish its entitlement to a suspension or
             modification by either referring a claimant to an available
             position as required by Kachinski or ‘establish[ing a
             claimant’s] ‘earning power’ through expert opinion
             evidence including job listings with employment agencies,
             agencies of the Department of Labor and Industry, and
             advertisements in a claimant’s usual area of employment.’
             South Hills Health Sys[.] v. Workers’ [Comp.] Appeal [Bd.]
             (Kiefer), 806 A.2d 962, 966 (Pa. Cmwlth. 2002).

City of Pittsburgh v. Workers’ Comp. Appeal Bd. (Robinson), 4 A.3d 1130, 1134 (Pa.
Cmwlth. 2010), aff’d, 67 A.3d 1194 (Pa. 2013) (footnote omitted). “The burden of
proof then shifts to the claimant to demonstrate that he responded to the job offer in
good faith. If the claimant does not exercise good faith, then his benefits can be
modified.” Bey v. Workers’ Comp. Appeal Bd. (Ford Electronics), 801 A.2d 661,
666 (Pa. Cmwlth. 2002) (citation omitted).
             In the instant case, Alexander Kandabarow, M.D. (Dr. Kandabarow)
performed an independent medical examination (IME) of Claimant. As a result
thereof, Dr. Kandabarow testified that he “felt that [Claimant] was capable of work
and [Dr. Kandabarow] filled out an estimated physical capacities worksheet, and [he]
also reviewed a DVD of employment that was offered with [Employer] for
[Claimant] and [he] felt that [Claimant] was capable of performing the employment
as [portrayed] on the DVD.” Reproduced Record (R.R.) at 329a.
             Upon reviewing Dr. Kandabarow’s IME, Employer’s Service Shop
Supervisor Steve Wilbert (Wilbert) offered Claimant a modified mechanical
specialist position. Claimant asserts that because Wilbert testified that the offered job
required additional, more physically-strenuous duties than portrayed on the DVD, it


                                           4
was not the job Dr. Kandabarow approved. However, Wilbert clarified that Claimant
would not be asked to do anything outside of his weight limitations. See R.R. at
299a. Further, when Dr. Kandabarow was specifically asked whether Claimant could
perform duties not depicted on the DVD but that were within Dr. Kandabarow’s
physical capacity recommendations, Dr. Kandabarow responded: “Yes.” R.R. at
340a. Claimant further maintains that because Wilbert testified that the offered job
required repetitive motions, it was not within Claimant’s restrictions. However, both
Dr. Kandabarow and Claimant’s treating physician, Thomas Kramer, M.D. (Dr.
Kramer) testified that although Claimant could not do repetitive motions with his left
hand, he could do so with his right hand which is his dominant hand. R.R. at 334a,
361a-362a (emphasis added). Because Dr. Kandabarow testified that Claimant could
perform the modified position offered to Claimant, and Wilbert related that such a
position was offered to Claimant,4 Employer met its burden of proving that it is
entitled to have Claimant’s WC benefits suspended.
             Once employer established its entitlement to a suspension, Claimant had
the burden to prove he made a good-faith attempt to follow through on the job offer.
Bey. Claimant testified that he worked July 25, 2011 through August 2, 2011.
Specifically, Claimant recalled that he was scheduled to work from 8:30 a.m. to 5:00
p.m. on Monday, July 25, 2011, but he left at 2:30 p.m. after reviewing policies,
gathering tools and attempting to get his photo identification, because his neck and
arm started bothering him. On Tuesday, July 26, 2011, Claimant did not physically
perform any repair work, but left early because his neck was hurting.                 On
Wednesday, July 27, 2011, after going over his benefits with Human Resources,
Claimant left early due to his son’s doctor appointment and because his neck was
sore. On Thursday, July 28, 2011, after reading a document and trying to find his

      4
        Although Claimant was to report to work on July 11, 2011, Employer agreed to defer
Claimant’s start date until July 25, 2011. Claimant reported to work on July 25, 2011.
                                            5
tools and a computer, Claimant left early. On Friday, July 29, 2011, Claimant left
work at 9:00 a.m. because his wife had car trouble. Summarizing Claimant’s work
that week, the following exchange occurred:

            Q. So you did not perform any of the repair duties that are
            depicted on the DVD of the job that was offered to you by
            [Employer]; correct?
            A. There [were] no tools there to perform the job.
            Q. You reviewed documents, you sat, you walked around
            looking for tools, but you did not repair any devices for the
            five days in July of 2011?
            A. No, I did not have the equipment to do that.
R.R. at 161a-162a.
            Concerning his work on August 1, 2011, Claimant testified:

            I tried to do as much as I could do, to make sure I had all of
            my documents done, try to --- finished trying to find [t]ools.
            I borrowed tools, and then I had to go speak with Dean
            Bennett on where I could [find] ice to pack my neck down.

R.R. at 162a.   Claimant stated that he left around lunchtime.        With respect to
Claimant’s work on August 2, 2011, Claimant testified as follows:

            Q. Tuesday, August 2, you come [sic] into work.
            A. Yes.
            Q. What did you do at work on Tuesday, August 2?
            A. I tried to do what I’d been previously hired to. I believe
            I did not have no more documents [sic] to do, but I still did
            not have my work station or tools to perform the job.
            Q. So you sat there?
            A. Well, after I tried to basically tried to find tools and
            nobody had and [sic] nothing, there was really nothing more
            to do but clean my bench off and get ready for when they
            would come, if they would come.


                                          6
            Q. So once you cleaned your bench off, you just sat at the
            work station?
            A. Yeah.
            Q. Yes?
            A. Yeah, because it was --- I mean, nobody used it for a
            while, so it was free.

R.R. at 163a-164a. Claimant left early for a follow-up appointment with his doctor
and never returned to Employer.
            The law is well established that “[t]he WCJ is the ultimate factfinder and
has exclusive province over questions of credibility and evidentiary weight.” Univ. of
Pa. v. Workers’ Comp. Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8 (Pa. Cmwlth.
2011). “The WCJ, therefore, is free to accept or reject, in whole or in part, the
testimony of any witness, including medical witnesses.” Griffiths v. Workers’ Comp.
Appeal Bd. (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000).
            Here, the WCJ expressly found:

            Based upon the entire evidence of record, including the live
            testimonies and demeanors of [C]laimant, [Employer’s
            Investigator] Ed Zalewski, [Wilbert] and [Employer’s
            Corporate Risk Manager] Timothy Budacki and the
            deposition testimony of Dr. Kandabarow, I specifically
            reject any contrary or conflicting testimony of [C]laimant
            and deposition testimony of Dr. Kramer. I find as a fact
            that [C]laimant did not make a good faith effort in his
            attempted return to work from July 25, 2011[] to August
            2, 2011, in which he was only performing sedentary duties
            of reading manuals and/or watching video as he had not yet
            been required to perform the light[-]duty work of a
            mechanical service technician. [C]laimant had left work
            early on multiple occasions complaining of neck and left
            arm pain but such work in July and August of 2011 was
            well within the restrictions of his own physician, Dr.
            Kramer, who was not aware that [C]laimant had not even
            yet performed any of the job activities depicted on the
            DVD. Thus, I specifically accept as credible the medical
            opinions of Dr. Kandabarow and specifically reject any

                                          7
           contrary opinions of Dr. Kramer that [C]laimant could not
           perform the job activities depicted on the DVD or as
           testified to by [Wilbert] because the work activities were of
           a repetitive nature and that as [C]laimant is right[-]handed,
           his dominant arm has no physical limitations and even Dr.
           Kramer was at a loss to explain [C]laimant’s pain
           complaints in his February 28, 2012 [sic], office note. I
           find as a fact that although work was offered to
           [C]laimant within his physical capabilities as of July 11,
           2011, [Employer], as evidenced by Employer Exhibit D,
           had agreed to defer [C]laimant’s return to work until
           Monday, July 25, 2011, without a loss of wages and,
           thus, [Employer] is entitled to a continuing suspension
           of [WC] benefits on and after July 25, 2011. I
           additionally accept, in part, the testimony of Dr. Kramer
           that after [C]laimant had attempted to return to work in July
           and August of 2011 there were no new physical exam
           findings and no new subjective complaints.
WCJ Dec. at 9, Finding of Fact (FOF) 20 (emphasis added).
            The Court may not reweigh the evidence or the WCJ’s credibility
determinations. Sell v. Workers’ Comp. Appeal Bd. (LNP Eng’g), 771 A.2d 1246 (Pa.
2001). “[I]t is irrelevant whether the record contains evidence to support findings
other than those made by the WCJ; the critical inquiry is whether there is evidence to
support the findings actually made.” Lahr Mech. v. Workers’ Comp. Appeal Bd.
(Floyd), 933 A.2d 1095, 1101 (Pa. Cmwlth. 2007) (quoting Minicozzi v. Workers’
Comp. Appeal Bd. (Indus. Metal Plating, Inc.), 873 A.2d 25, 29 (Pa. Cmwlth. 2005)).
Because the record evidence supports the WCJ’s finding, we hold that the WCJ
properly suspended Claimant’s temporary total disability benefits.
            Claimant next contends that the WCJ erred in failing to grant Claimant’s
First Penalty Petition because Employer failed to begin Claimant’s disfigurement
benefits after Claimant’s temporary total disability benefits had been suspended on
July 25, 2011. We disagree.
            Section 306(d) of the Act provides in relevant part:



                                          8
               Where, at the time of the injury the employe receives other
               injuries, separate from these which result in permanent
               injuries enumerated in clause (c) of this section, the
               number of weeks for which compensation is specified for
               the permanent injuries shall begin at the end of the
               period of temporary total disability which results from
               the other separate injuries, but in that event the employe
               shall not receive compensation provided in clause (c) of this
               section for the specific healing period. In the event the
               employe suffers two or more permanent injuries of the
               above enumerated classes compensable under clause (c) of
               this section, he shall be compensated for the largest single
               healing period rather than the aggregate of the healing
               periods.

77 P.S. § 513 (emphasis added). The Pennsylvania Supreme Court expressly held:

               Subsection 306(d) [of the Act] . . . provides that when a
               specific loss claimant under subsection (c) has other injuries
               in addition to the specific loss which result in compensation
               for [t]emporary total disability, the number of weeks
               specified for the compensation of the specific loss in
               schedule (c) will not begin until the period of
               [t]emporary total disability has ended.

Turner v. Jones & Laughlin Steel Corp., 389 A.2d 42, 45 (Pa. 1978) (emphasis
added).
               “The assessment of penalties, and the amount of penalties imposed are
matters within the WCJ’s discretion.” Gumm v. Workers’ Comp. Appeal Bd. (Steel),
942 A.2d 222, 232 (Pa. Cmwlth. 2008). “However, ‘a violation of the Act or its
regulations must appear in the record for a penalty to be appropriate.’” Id.
(emphasis added) (quoting Shuster v. Workers’ Comp. Appeal Bd. (Pa. Human
Relations Comm’n), 745 A.2d 1282, 1288 (Pa. Cmwlth. 2000)). “No penalty may be
imposed under [Section 4355] [of the Act] absent proof of a violation of the Act or the
rules of the department or board.” Id. (quoting Spangler v. Workmen’s Comp. Appeal
Bd. (Ford), 602 A.2d 446, 448 (Pa. Cmwlth. 1992)). “Further, a claimant who files a

      5
          Added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. § 991.
                                                  9
penalty petition bears the burden of proving a violation of the Act occurred. If the
claimant meets his or her initial burden of proving a violation, the burden then shifts
to the employer to prove it did not violate the Act.” Id. (citation omitted).
             Here, although Claimant’s temporary total disability benefits were
suspended from July 25, 2011 through August 2, 2011, the WCJ issued a supersedeas
order on September 7, 2011 reinstating Claimant’s temporary total disability benefits
beginning August 3, 2011. The original suspension was thereby only a temporary
suspension of Claimant’s WC benefits on account of Claimant returning to work, and
did not mandate Employer to begin Claimant’s disfigurement benefits.
             As explained by the WCJ:

             [S]uch [disfigurement] benefits did not become payable
             until after [C]laimant’s indemnity wage loss benefits are
             suspended or terminated and [C]laimant’s indemnity wage
             loss benefits were only suspended between July 25, 2011,
             and August 2, 2011, a period of less than one week and
             were reinstated from August 3, 2011, by [the WCJ’s]
             supersedeas order of September 9, 2011.

WCJ Dec. at A-12 - A-13, FOF 21.
             The Turner Court explained that Section 306(d) of the Act is a timing
provision established to make sure claimants do not receive both temporary total
disability and disfigurement benefits simultaneously. Id. Specifically, “[n]one of
those subsections contain any substantive provisions relating to eligibility for
compensation. Those requirements are set forth extensively elsewhere in the Act.
This set of provisions functions as the heading suggests: they are ‘Schedules of
Compensation’, relating only to the specifics of payment.” Turner, 389 A.2d at 45.
As Claimant’s temporary total disability benefits were not terminated until the WCJ’s
January 9, 2013 order granting Employer’s Suspension Petition as of July 25, 2011,
Employer was not required to begin Claimant’s disfigurement benefits until that date.
Further, because the supersedeas order reinstated Claimant’s temporary total
                                           10
disability benefits, and Claimant was entitled to payment of the full disfigurement
award after the Order of Suspension was entered, Claimant’s disfigurement benefits
were not diminished. Thus, the WCJ properly found that Employer did not violate
the Act. Accordingly, we hold that the WCJ did not err in denying Claimant’s First
Penalty Petition.6 Gumm.
                 Lastly, Claimant argues that the WCJ erred in failing to grant Claimant’s
Second Penalty Petition. Specifically, Claimant asserts that Employer violated the
Act when it did not reinstate Claimant’s benefits when a hearing was not held within
21 days after Claimant filed his Challenge Petition. We agree.
                 Initially, “[w]hen construing a statute, we must follow the letter of the
statute if its words are unambiguous[.]” Velocity Express v. Pa. Human Relations
Comm’n, 853 A.2d 1182, 1185 (Pa. Cmwlth. 2004) (quoting McClellan v. Health
Maint. Org. of Pa., 686 A.2d 801, 805 (Pa. 1996)).

                 We are mindful that, when ascertaining the General
                 Assembly’s intent with regard to ambiguous statutory
                 language, courts are to give strong deference to an
                 administrative agency’s interpretation of a statute that the
                 agency is charged to enforce. However,

     6
         Section 435(d) of the Act provides, in relevant part:

                 The [D]epartment, the [B]oard, or any court which may hear any
                 proceedings brought under this [A]ct shall have the power to impose
                 penalties as provided herein for violations of the provisions of this
                 [A]ct or such rules and regulations or rules of procedure:

                 (i) Employers and insurers may be penalized a sum not exceeding ten
                 per centum of the amount awarded and interest accrued and payable:
                 Provided, however, That such penalty may be increased to fifty per
                 centum in cases of unreasonable or excessive delays. Such penalty
                 shall be payable to the same persons to whom the compensation is
                 payable.

77 P.S. § 991(d).

                                                   11
                [courts] need not give deference to an agency where its
                construction of a statute frustrates legislative intent.
                Therefore, although courts often defer to an agency’s
                interpretation of the statutes it administers, where . . .
                the meaning of the statute is a question of law for the
                court, when convinced that the agency’s interpretation
                is unwise or erroneous, that deference is unwarranted.

             Rosen v. Bureau of [Prof’l] and Occupational Affairs, State
             Architects Licensure Bd., 763 A.2d 962, 968 (Pa. Cmwlth.
             2000) (citation omitted), appeal denied, . . .781 A.2d 150
             ([Pa.] 2001). Such is the case here.

Velocity Express, 853 A.2d at 1185 (citations omitted). Further, “[i]t is well settled
law that an agency’s substantive regulations . . . have the force and effect of law.”
Eastwood Nursing and Rehab. Ctr. v. Dep’t of Pub. Welfare, 910 A.2d 134, 142 (Pa.
Cmwlth. 2006).
             Section 413(c)(1) of the Act provides:

             If the employe contests the averments of the insurer’s
             affidavit, a special supersedeas hearing before a [WCJ] may
             be requested by the employe indicating by a checkoff on the
             notification form that the suspension of benefits is being
             challenged and filing the notification of challenge with the
             department within twenty days of receipt of the notification
             of suspension from the insurer. The special supersedeas
             hearing shall be held within twenty-one days of the
             employe’s filing of the notification of challenge.

77 P.S. § 774.2(1) (emphasis added).        Section 131.50a of the WC Regulations
provides in relevant part:

             (a) This section governs the disposition of an employee’s
             request for a special supersedeas hearing made in
             connection with a challenge to the suspension or
             modification of [WC] benefits under [S]ections 413(c) and
             413(d) of the [A]ct (77 P. S. [§]§ 774.2 and 774.3).
             (b) A special supersedeas hearing will be held within 21
             days of the employee’s filing of the notice of challenge.

                                           12
             (c) During the course of a challenge proceeding, the issues
             are limited to determining whether the claimant has stopped
             working or is earning the wages stated in the Notice of
             Suspension or Modification under [S]ections 413(c) or
             413(d) of the [A]ct and the challenge shall be decided only
             on those issues.
             ....
             (e) The [WCJ] to whom the notice of challenge has been
             assigned will issue a written order on the challenge within
             14 days of the hearing.
             (f) If the [WCJ] fails to hold a hearing within 21 days or
             fails to issue a written order approving the suspension
             or modification of benefits within 14 days of the hearing,
             the insurer shall reinstate the employee’s [WC] benefits
             at the weekly rate the employee received prior to the
             insurer’s suspension or modification of benefits under
             [S]ections 413(c) or 413(d) of the [A]ct.

34 Pa. Code § 131.50a (emphasis added).
             Here, Claimant’s Challenge Petition was filed on August 8, 2011, thus
the WCJ was required to hold the hearing by August 29, 2011. The supersedeas
hearing was not held until September 7, 2011. Because the WCJ “fail[ed] to hold a
hearing within 21 days . . . , the [Employer was required to] reinstate [Claimant’s
WC] benefits . . . .” 34 Pa. Code § 131.50a. Accordingly, Employer violated the Act
when it did not reinstate Claimant’s benefits when a hearing was not held within 21
days of the date Claimant filed his Challenge Petition.
             The WCJ, however, found Employer did not violate the Act because:
first, the WCJ had 21 days from the date the Challenge Petition was “assigned by the
Bureau” (August 11, 2011) to hold the supersedeas hearing; and second, the WCJ
“scheduled” the hearing on August 11, 2011 for September 7, 2011. WCJ Dec. at A-
12 - A-13, FOF 21. Neither of these findings is supported by law. Section 413(c)(1)
of the Act expressly provides: “The special supersedeas hearing shall be held within
twenty-one days of the employe’s filing of the notification of challenge.” 77 P.S. §

                                          13
774.2(1). Notwithstanding, assuming the WCJ did have 21 days from the date of the
assignment to hold the hearing, the hearing would had to have been held by
September 1, 2011.     The supersedeas hearing was held on September 7, 2011.
Consequently, we are constrained to hold that the WCJ erred by not concluding that
Employer violated the Act when it did not reinstate Claimant’s WC benefits as
mandated by Section 413(c)(1) of the Act and its corresponding regulation.
Accordingly, we remand the matter to the Board with direction to remand to the WCJ
to determine whether to assess a penalty, and if so, the amount thereof. Gumm.
            For all of the above reasons, the Board’s order is affirmed in part,
reversed in part and this matter is remanded to the Board with direction to remand to
the WCJ for further proceedings consistent with this opinion.


                                      ___________________________
                                      ANNE E. COVEY, Judge

Judge Cohn Jubelirer dissents.




                                         14
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward Dixon,                               :
                         Petitioner         :
                                            :
                  v.                        :
                                            :
Workers’ Compensation Appeal                :
Board (Medrad, Inc.),                       :   No. 1700 C.D. 2014
                      Respondent            :


                                      ORDER

            AND NOW, this 30th day of March, 2016, the Workers’ Compensation
Appeal Board’s (Board) August 29, 2014 order is affirmed in part, reversed in part
and this matter is remanded to the Board with direction to remand to the Workers’
Compensation Judge for further proceedings consistent with this opinion.
            Jurisdiction is relinquished.


                                       ___________________________
                                       ANNE E. COVEY, Judge
