PECEIMER v. WORKERS COMPENSATION APPEALS BOARD

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Court of Appeal, First District, California.

Sharene PECEIMER, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Safeway Stores, Inc., Respondents.

No. A069025.

Decided: November 16, 1995

Applicant Sharene Peceimer petitioned for review of an award and order by which the Workers' Compensation Appeals Board (Board) found that (1) her industrially caused disability was permanent and stationary, and (2) a medical condition in her knees was not industrially caused.   We issued a writ because it appeared that the finding of a permanent and stationary condition rested on a medical opinion which was in turn predicated on an insupportable factual premise, and because the compensability of applicant's knee condition appeared not to have been properly before the Workers' Compensation Judge (WCJ) who decided it.   After review of the certified record we have concluded that the Board's decision must be annulled.

BACKGROUND

Applicant was employed by Safeway Stores, Inc. (Safeway), as a deli manager.   On September 20, 1990, she filed three separate applications for compensation based upon injuries sustained in 1987, 1988, and 1989.   Each of the applications asserted injuries to the left hip and back and to the neck.

Safeway paid temporary disability benefits for several periods, the last terminating on May 14, 1993.1  On that date Safeway terminated temporary disability payments, having received an opinion from its medical-legal consultant, Dr. Steven Feinberg, that applicant's industrial injuries were permanent and stationary.   Upon the cessation of temporary disability benefits, the EDD began paying applicant unemployment disability benefits commencing in May 1993.   In June 1993, the EDD filed a notice of lien based on these payments, which assertedly totaled $6,541 by April 1994.

In November 1992, applicant's back specialist, Dr. Kenneth Hsu, referred her to Dr. Joseph Haggerty for evaluation of pain in both knees.   Dr. Haggerty concluded that she was suffering from a congenital condition which was “undoubtedly” aggravated by the back exercises associated with treatment of her industrial injuries.   Dr. Feinberg, however, disagreed, stating in his March 1993 letter that applicant's knee condition had “nothing to do with her exercise program, her ‘spine problem,’ her poor body mechanics, nor the overuse of her knees because of her other problems.”   Dr. Haggerty eventually recommended arthroscopic surgery, which he performed in May and June 1993.   Safeway apparently declined to cover any of the treatment expenses connected with the knee condition.   In August 1993, the Retail Clerks of Northern California (Retail Clerks) presented a notice and request for allowance of lien which, as eventually augmented, sought $7,179.77 for treatment for applicant's knees.

On July 19, 1994, WCJ Miyamoto conducted an evidentiary hearing on certain specified issues.   On October 18, 1994, he rendered an award finding that:  (1) applicant had “sustained industrial injuries to her left hip and back and neck but not to her two knees”;  (2) there was a need for further medical care;  (3) applicant's condition was permanent and stationary on or about March 24, 1993 (the date of Dr. Feinberg's opinion letter);  and (4) the claim for temporary disability, and the lien claim of the EDD, were denied beyond that date.

Applicant petitioned for reconsideration on the grounds that (1) substantial evidence did not support the termination of temporary disability as of March 24, 1993, and (2) the WCJ should not have decided the issue of compensability of the knee injuries, because that issue had been reserved for later adjudication.   Upon the Board's denial of her petition for reconsideration, applicant filed a timely petition for writ of review.   We issued the writ.

TERMINATION OF TEMPORARY DISABILITY

“The workers' compensation statute provides indemnity for both temporary and permanent disabilities.   A temporary disability is impairment reasonably expected to be cured or materially improved with proper medical care.   (Chavira v. Workers' Comp. Appeals Bd. (1991) 235 Cal.App.3d 463, 473.)   A disability, other than one resulting from a progressive occupational disease, is permanent when the employee's condition has reached maximum improvement or the condition has become stationary for a reasonable period of time.   (Ibid.) A disability cannot be both permanent and temporary at the same time.  (New Amsterdam Cas. Co. v. Ind. Acc. Com. (1951) 108 Cal.App.2d 502, 507.)”  (Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 235, review den.;  Edgar v. Workmen's Comp.App. Bd. (1966) 246 Cal.App.2d 660, 665 [“A disability is considered permanent when the medical evidence establishes that no major change is expected for better or worse and the condition will remain substantially the same thereafter”].)

Applicant contends that substantial evidence does not support the finding that her condition became permanent and stationary, and her right to temporary disability benefits ended, on March 24, 1993.   Under the substantive principles noted above, the question is whether the Board properly found, on the evidence before it, that as of March 24, 1993, applicant's disability was not reasonably expected to improve with proper medical care, but had reached a stage where it would remain substantially the same.   That finding must of course be upheld if supported by substantial evidence.  (Place v. Workmen's Comp.App. Bd. (1970) 3 Cal.3d 372, 378.)

Here the WCJ expressly relied on Dr. Feinberg's opinion of March 24, 1993, that applicant's condition was permanent and stationary on that date.  “[T]he relevant and considered opinion of one physician, although inconsistent with other medical opinions, may constitute substantial evidence.”  (Kyles v. Workers' Comp. Appeals Bd. (1987) 195 Cal.App.3d 614, 621.)   However, an appellate determination whether substantial evidence supports a challenged finding “requires an examination of the whole record․  ‘Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories.   Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture, or guess.’ ”  (Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (1978) 87 Cal.App.3d 336, 355, quoting Hegglin v. Workmen's Comp.App. Bd. (1971)4 Cal.3d 162, 169.)  “The weight to be given to expert testimony depends on the material and reasoning upon which it is based.  ‘Such an opinion is no better than the reasons given for it [citation], and if it is “not based upon facts otherwise proved, or assumes facts contrary to the only proof, it cannot rise to the dignity of substantial evidence.”   [Citations.]’ ”  (In re Alcala (1990) 222 Cal.App.3d 345, 373, quoting White v. State of California (1971) 21 Cal.App.3d 738, 760, emphasis removed.)   Thus, “[a]lthough the considered expert opinion of one physician may constitute substantial evidence to support a determination of the Board [citations], a medical report which is outdated and not based upon the essential facts extant at the time of the Board's decision does not constitute substantial evidence.  [Citations.]”  (Fairview State Hospital v. Workers' Comp. Appeals Bd. (1982) 138 Cal.App.3d 595, 599-600.)

In his March 1993 report Dr. Feinberg concluded that applicant was “a chronic pain patient” whose condition could not be efficaciously treated with “manual medicine, injections, or surgery.”   However, her condition could improve to the point of allowing a return to work, “particularly if she were to agree to a chronic pain management approach.”   He opined that she should be placed in the care of “one physician who specializes in Chronic Pain Management.”   She should be treated with anti-depressants and placed in a “non-modality oriented conditioning program.”   An “end point” to this treatment should be set, “perhaps one to three months,” at which time applicant should be “weaned from the medical care system and encouraged to get on with her life.”

Dr. Feinberg thus acknowledged, explicitly, that applicant's condition could significantly improve under a chronic pain management approach.   In nonetheless finding her condition permanent and stationary, he did not cite any professional assessment of medical probabilities.   Instead he explicitly relied on the premise that applicant was “resistant” to a chronic pain management approach.   He stated his opinion as follows:  “Unfortunately, Ms. Peceimer and her husband, although intelligent and forthright, do not appear ready to accept the concept [of] chronic pain as a disease entity unto itself.  [¶] They are both right that the pain is real, but I am suggesting that it is not going to be cured with the same type of approach that has been taken over the last several years.  [¶] Because Ms. Peceimer is resistant to a chronic pain management approach, it is my opinion that she is permanent and stationary.”  (Italics added;  underlining in original.)

In subsequent letters to Safeway, Dr. Feinberg continued to acknowledge that applicant “would benefit from chronic pain management,” and to emphasize that at the time of his evaluation in March 1993, applicant “did not appear interested” in such treatment.   In sum, his opinion expressly depended on the factual premise that applicant's “resistant” attitude toward chronic pain treatment would prevent her from benefiting from such treatment.

The uncontroverted evidence shows that shortly after issuance of Dr. Feinberg's March 1993 report the premise on which his opinion rested had become “erroneous, or ․ no longer germane.”  (Hegglin v. Workmen's Comp.App. Bd., supra, 4 Cal.3d at p. 169.)   In her testimony applicant conceded that when she first saw Dr. Feinberg she did not believe that her problems were due to a chronic pain syndrome.   After that visit, however, she was “willing to undergo a chronic pain program.”   In May 1993, her psychologist, Dr. Janet Endelman, wrote to Safeway's claims examiner that applicant was “not resistant to the idea of a chronic pain program, though it is possible that she was not receptive to the idea when it was discussed with Dr. Feldstein (?) [sic ], as she had not initially understood that he was to comment on her overall case.”  (See footnote 4, below.)

By early May 1993, applicant asked to be enrolled in an inpatient pain management program in St. Helena.   Safeway sought Dr. Feinberg's opinion concerning this request.   He replied that (1) he would like to be assured that applicant and her husband were really “committed to this type of approach”;  (2) an inpatient program could cost “upwards of $30,000”;  (3) applicant could instead be “admitted to a full time program on an outpatient basis utilizing a motel room in the local community”;  and (4) a “reasonable alternative” would be to place her under the care of a single rehabilitation physician with chronic pain management experience in order to “piece together” a part-time program.

Beginning in August 1993, applicant received treatment from psychiatrist Dr. B.W. Kilgore, for “pain management.”   In December he reported that after a regime of psychotherapy, pain medication, and physical therapy apparently consisting of exercise, applicant's knees and lower back had “improved well,” although her neck pain was “the most lingering.”   He stated her prognosis as, “Fair to Good. I doubt if she will be able to return to the same kind of work, but her pain, mood and self-esteem are all improving.”   In April 1994, he found her pain still improving, though tending to worsen under acute anxiety, such as that occasioned by her deposition in pending litigation with Safeway.2  Applicant also testified that as a result of Dr. Kilgore's treatment she had been able to “moderately increase some activities” and to decrease her pain medication to the extent that at the time of her testimony she was not taking any prescription medication.

Some four months after applicant began chronic pain treatment under Dr. Kilgore, Dr. Feinberg appeared to accept that improvement under such an approach was not only possible but was occurring.   When Safeway requested elaboration and clarification of his views based on applicant's request to be placed in a chronic pain program, Dr. Feinberg re-emphasized that at the time of his evaluation applicant “did not appear interested or willing to participate in such an endeavor.”   Thus, he wrote, “I would like to receive some assurance from Ms. Peceimer and her husband that they understand what chronic pain management means and that they are committed to this type of approach rather than some type of orthopedic ‘fix’ of her problem.”   In his May 1993 response to queries from Safeway's counsel he made a variety of detailed recommendations concerning the course which he believed such treatment should follow.  “Pain management services are expensive,” he wrote, “and if there is not reasonable steady progress then such services should be cut off.”   Implicit in these comments was yet another acknowledgment that if applicant submitted to such a program, “reasonable steady progress” was possible.   In a further letter on December 20, 1993, he acknowledged Dr. Kilgore's report that applicant's “pain, mood, and self-esteem were all improving, and [Dr. Kilgore] considered her prognosis fair to good.”   Dr. Feinberg found the report insufficiently detailed, but was willing to accept the reported improvement as genuine and felt that it warranted further treatment:  “I personally would be very comfortable if he saw her two to three times a month for an additional three months and at that point was able to wean her away from ongoing treatment.”

In explaining his reliance on the March 1993 opinion letter, the WCJ wrote, “Dr. Feinberg believed the applicant's pain management program should not go on forever and was palliative.”   This statement betrays a dual misconstruction of Dr. Feinberg's report.   First it supposes that applicant was undergoing a “pain management program” at the time of that report.   This was certainly not the case;  applicant did not enter a pain management program until August 1993, five months after Dr. Feinberg's opinion.

Further, Dr. Feinberg used the term “palliative” solely in connection with the psychological treatment applicant was receiving from Dr. Endelman.   He wrote that such treatment “has been prolonged and would appear to me to be palliative at this point.”   If there was any ambiguity as to the intended scope of this statement, it was removed in December 1993 when he referred back to the statement as follows:  “I felt that she had received prolonged treatment from her psychologist, Dr. Endelman, and felt that at the point I was seeing her that such care was palliative in nature.”

The WCJ also cited the transcript of Dr. Feinberg's deposition, in which (as the WCJ wrote) “Dr. Feinberg did not alter his previous opinion that the applicant was not temporarily totally disabled.”   However, the cited portion of the transcript involved abstract questions and answers about the nature and meaning of “permanent and stationary.” 3  When specifically questioned about his opinion that applicant “would not accept a chronic-pain program,” Dr. Feinberg appeared unable to cite anything beyond his impression of applicant and her husband as being “difficult to deal with during the initial part of the report․  [O]ur interview started out with some problems, and while I did mention they were pleasant, cooperative, and credible, that was not the way it started out.   They were not the least bit pleasant.  [¶] It was only through my trying to tell them that I was not the devil incarnate, and was not trying to do a number on them and trying to gain their confidence so I could-it started off with her being unwilling to give me an adequate history, and all she wanted to talk about was her right knee.” 4

Even more critical was Dr. Feinberg's virtual concession that applicant was not permanently disabled given her apparent willingness to participate in a program of chronic pain management.   He was asked whether he would still have found applicant's condition permanent and stationary if he had understood applicant to be “accepting of the concept of a chronic-pain syndrome.”   He conceded that his March 1993 report “did not address that issue ․ because I didn't think she would be interested in chronic pain management.”   He then testified, “It would not have bothered me-it would not bother me today if she had a very short time on T.T.D. [i.e., temporary total disability payments] while undergoing adequate pain management.”  This amounted to an explicit concession that if applicant were in fact “interested in chronic pain management,” she remained temporarily disabled at least for the time it would take to undergo an “adequate” pain management program.

This testimony and all the other evidence of record seems to flatly contradict Dr. Feinberg's written opinion in January 1994, which followed repeated requests for clarification from Safeway, “that Ms. Peceimer is permanent and stationary and that her current treatment should be provided under her future medical award.   I do not believe she is totally temporarily disabled because she is receiving services from Dr. Kilgore.” 5

Dr. Feinberg's pessimism about applicant's willingness to undergo a chronic pain management program was never shown to rest on any kind of expertise.   Instead it appeared to rest on speculation or surmise concerning applicant's attitude.6  His views on that subject may have been admissible opinions as of the date he actually observed applicant, and in any event applicant admitted that he correctly gauged her attitude at that time.   As Dr. Feinberg testified, however, he had “no idea what happened to her” after that date.   Any supposition by him that she remained resistant to chronic pain management, particularly in the face of overwhelming contrary evidence, must be characterized as” ‘․ surmise, speculation, conjecture, or guess.’ ”   (Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd., supra, 87 Cal.App.3d at p. 355, quoting Hegglin v. Workmen's Comp.App. Bd., supra, 4 Cal.3d at p. 169.)   Nothing in the record suggests that she was feigning interest in such treatment.   Indeed, such a finding would be contrary to the WCJ's overall comments as well as Dr. Feinberg's.7  There is, in short, nothing to contradict applicant's testimony that after seeing Dr. Feinberg and discussing chronic pain syndrome with him, she was willing to undergo a chronic pain program.

It thus appears that Dr. Feinberg's opinion of March 1993 is “not based upon the essential facts extant at the time of the Board's decision,” and therefore “does not constitute substantial evidence” in support of the finding of a permanent and stationary disability as of March 1993.  (Fairview State Hospital v. Workers' Comp. Appeals Bd., supra, 138 Cal.App.3d at pp. 599-600.)   Accordingly, the termination of temporary disability benefits as of March 24, 1993, lacks substantial evidentiary support and must be set aside.

KNEE CONDITION

Applicant further contends that the WCJ erroneously decided an issue-the compensability of her knee condition-which was not before him because it had been reserved for later determination.

In late 1993, after Safeway filed a declaration of readiness requesting that the matter be set for hearing, counsel for applicant wrote to the presiding WCJ stating that “applicant is not ready to proceed on the issues of permanent disability.   In fact, applicant is temporarily disabled and is in a pain management program․  [¶] There is a dispute as to liability for problems with applicant's knees.   The condition is either industrial, or treatment of the condition ․ is necessary in order to properly treat the industrial injury.  [¶] A conference is a good idea to get these matters sorted out and to determine exactly how we are going to proceed․   But we are not prepared to proceed with trial on all issues now.”

In December 1993, Safeway filed an objection to the Retail Clerks' claim of lien, which sought recovery of expenses incurred in treating applicant's knee condition.   Safeway asserted that the claimed injury did not arise out of and in the course of employment.   Safeway stated that it “wish[ed] the objection to be reserved as an additional issue.”

In February 1994, WCJ Miyamoto conducted a pretrial conference.   His minute order recited in pertinent part, “The lien claim of Retail Clerks is primarily for treatment to the knees that Applicant is claiming as an industrial injury and disability․   As a compensable consequence of the specific three injuries herein, the Applicant is claiming injuries or disabilities to the knees and to the psyche.”

A further pretrial conference was conducted before WCJ Williams on April 20, 1994.   Handwritten minutes of the conference list the “issues,” in columnar form, as “TD” [temporary disability], “Med Treatment,” “EDD,” and “Retail Clerks lien.”   Before the last entry (“Retail Clerks lien”) appears the word, “defer.”

The matter was subsequently set for “trial” to take place on July 19, 1994.   Counsel for applicant wrote to WCJ Miyamoto expressing surprise at the assertedly long delay and noting, “Because of other complications in the case, the hearing scheduled for July 19, 1994 is limited to the issues of temporary disability and need for medical treatment.”

The minutes and transcript of the July 19 hearing indicate that the WCJ enumerated the following issues:  (1) the EDD lien claim;  (2) further medical treatment;  (3) temporary disability after May 15, 1993;  and (4) the Retail Clerks lien, which is described as “DEFERRED.”   The WCJ then stated, “All other issues also are deferred.”   He then recited a stipulation “that the Applicant ․ while employed as a deli manager by Safeway Stores ․ sustained industrial injuries to her left hip and back and neck and also sustained industrial disabilities as a consequence of her injuries herein, with the nature and extent of her industrial disabilities in issue.”   At the conclusion of the hearing the WCJ observed, “There are many other issues down the road.”

Three months later the WCJ issued his finding that applicant had not sustained industrial injuries to her knees.   Counsel for applicant wrote to him protesting that “you decided an issue that was not before you, i.e., whether there was injury to the knees as a compensable consequence of the injury.”   In the letter he asserted that the compensability of applicant's knee problems, like that of psychological injury, had been deferred for later resolution in accordance with understandings reached and expressed in earlier proceedings.   He continued, “Applicant was proceeding on the basis that the chronic pain problem was one that produced continuing temporary disability and need for treatment.”   In reliance on those understandings, counsel wrote, he had “not obtained a medical-legal evaluation on the relationship of the knees to the industrial injury or a psychiatric report.”   At the April 20 conference before WCJ Williams, he asserted, the July 19 date was set for a hearing on “temporary disability and need for treatment only.”   By determining that applicant's knee injuries were not compensable, counsel wrote, the WCJ's decision had deprived applicant of due process.

Counsel for the Retail Clerks also wrote to the WCJ, stating that “at the Pre-Trial Conference before Judge Williams on April 20, 1994, the matter was continued to be set for a one-hour hearing solely on the issues of temporary disability and need for medical treatment.   We were present at that Pre-Trial Conference and requested that we be excused from participation in the one-hour Trial to be scheduled thereafter on the basis that our client's lien claim, which included significant amounts of treatment for injuries to Ms. Peceimer's knees, was not going to be an issue at that Trial.   My notes reflect that that request was granted.  [¶] For that reason, we did not appear at the Trial on July 19, 1994.”

The entire record bears out applicant's contention that the knee issue was not before WCJ Miyamoto at the July 19 hearing.   The transcript and minutes of that hearing contain no reference to that issue.   Instead they identify four other issues, declare one of them “deferred,” and go on to state, “All other issues also are deferred.”   The only possible ambiguity arises from the statement, following the recital of certain stipulated facts, that “the nature and extent” of applicant's industrial disabilities were “in issue.”   In context, this appears to mean only that matters not stipulated were disputed.   Certainly applicant could reasonably so understand it.   In any event, such a general recital cannot reasonably control over the more specific enumeration of issues and the express reservation of issues not enumerated.8

Even if the July 19 minutes and transcript are viewed as ambiguous with respect to submission or reservation of the knee issue, the other evidence of record establishes beyond serious question that neither the parties nor the Board intended to submit that issue at that hearing.   The minutes of the April 20 pretrial conference, as well as of the July 19 hearing itself, unambiguously recite that the lien claim of the Retail Clerks was “deferred.”   That claim depended entirely on the premise that applicant's knee condition was industrially caused.   To “defer” adjudication of the lien necessarily meant that this issue would be submitted for adjudication at some future time.   It is inconceivable that the parties or the Board intended two adjudications of the same issue, with duplication of effort and, quite possibly, inconsistent results.   At the same time, it is equally unlikely that the lien claimant would knowingly permit the issue to be conclusively adjudicated in its absence, given the substantial sum at stake.   If the agreements and orders to “defer” the issue meant anything, they meant that it would not be adjudicated at the July 19 hearing.

The WCJ indicated that he considered the compensability of applicant's knee condition to be before him because the issue of temporary disability was expressly submitted, and temporary disability “might have been” awarded “based on Dr. Haggerty's opinion that applicant's knee conditions were industrially related.”   However, the record contains no evidence that applicant ever sought temporary disability benefits based on the knee condition.   Nor does anything in Dr. Haggerty's reports, or elsewhere in this record, suggest that the knee condition would support an award of such benefits.   Dr. Haggerty's initial report of November 18, 1992, was to the contrary, noting that the knee condition was “of such [a] mild nature it would not necessitate her being off work for her knees.”   His follow-up report of February 19, 1993, while noting a worsened condition in the right knee, did not suggest that this condition would independently prevent her from returning to work.   The record fully supports the assertion by counsel for applicant that “the chronic pain problem was [the] one that produced continuing temporary disability and need for treatment.”

Nor has Safeway offered any plausible basis for the supposed submission of the knee issue.   Counsel for Safeway first asserted that applicant's knee condition was in issue by virtue of Dr. Kilgore's mention of her knees in discussing her chronic pain syndrome, and the presence in the record of other medical reports referring to applicant's knee condition.   Applicant's attorney, he continued, “had ample time” to secure a medical-legal evaluation of the knee condition, “chose not to, and instead was prepared to rely upon Dr. Kilgore's medical opinion on this point.”   These assertions are so transparently unsound as to warrant an inference that Safeway was as surprised as applicant by the WCJ's adjudication of the knee issue.   Dr. Kilgore did not purport to offer a considered professional opinion concerning the industrial or nonindustrial genesis of the knee condition.   It is highly unlikely that applicant's attorney “chose” to rely on a nonexistent opinion.   It is far more likely that applicant's attorney relied on previous understandings and orders by the Board “deferring” the issue of injury to the knees.

In later filings before the Board, and in this court, Safeway has contended that the knee issue was integral to the lien claim of the EDD. Indeed, Safeway asserts that the EDD's lien “related solely and exclusively to [applicant's] knee treatment.”  (Underlining in original.)   Even if we accepted the premise that the EDD's lien claim could be understood to tender the issue of the compensability of applicant's knee injuries, we fail to perceive how one party's express or implied assertions could permit the Board to adjudicate adversely to other parties issues which they and it reserved for later determination.   Moreover, the source of applicant's disability was not integral to the EDD's lien, either legally or factually.   Legally, the EDD was entitled to recoup any unemployment disability benefits paid while applicant was entitled to temporary disability workers' compensation benefits, regardless of the basis of applicant's entitlement.  (Lab.Code, § 4903, subd. (f);  Unemp.   Ins.Code, § 2629, subds. (a), (b)(1).)   Thus the basis for the EDD's own allowance of benefits appears irrelevant to any issue before the Board.   Factually, EDD documents indicate that applicant was disabled by virtue of several conditions:  disc protrusion of the cervical spine, facet arthropathy, and bilateral chondromalacia of the knees.

Far more compelling than the submission of the EDD's lien is the deferment of the Retail Clerks lien which, as already noted, cannot be rationally reconciled with the WCJ's adjudication of the knee issue.   We conclude that the WCJ acted in excess of his authority in deciding that issue.

DISPOSITION

Since the two critical findings underlying the award cannot be sustained, the award is annulled in its entirety and the Board is directed to conduct further proceedings consistent with this opinion.

MERRILL

CORRIGAN and PARRILLI, JJ., concur.