485 F.3d 1351
Keith Lamont JORDAN, Petitioner-Appellant,v.SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.
No. 05-14736.
United States Court of Appeals, Eleventh Circuit.
May 14, 2007.

George Allen Couture, Rosemary T. Cakmis, Fed. Pub. Defenders, Orlando, FL, Maurice C. Grant, II, Fed. Pub Def., Jacksonville, FL, for Jordan.
Edward C. Hill, Jr., Trisha Meggs Pate, Sheron L. Wells, Tallahassee, FL, for Respondents-Appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before CARNES, WILSON and HILL, Circuit Judges.
CARNES, Circuit Judge:

1
Keith Lamont Jordan is serving sentences of life imprisonment and twenty-two years following his conviction in Florida state court for first degree murder, attempted first degree murder, and armed robbery. After the First District Court of Appeal affirmed his conviction, Jordan v. State, 696 So.2d 344 (Fla. 1st DCA 1997) (table), Jordan filed a habeas corpus petition in that same appellate court, which was denied, and then filed in the state trial court a collateral attack on his conviction under Florida Rule of Criminal Procedure 3.850, which was also denied.

2
Thereafter, in September of 2000, Jordan filed his first petition in federal court pursuant to 28 U.S.C. § 2254. The district court dismissed it with prejudice as untimely. He then filed another Rule 3.850 motion for collateral relief in the state trial court. After that motion was denied, Jordan in October of 2003 filed pro se an application in this Court seeking an order permitting him to file a second or successive § 2254 petition in the district court. His application said that he wanted to raise in the petition a claim of actual innocence based on newly discovered evidence.

3
Jordan's actual innocence claim was based on the declaration of two convicted felons he met in prison who said that they had seen someone else commit the crime and on Jordan's own declaration that he did not do it. Jordan sought to explain away his confession as the product of coercion by declaring that he had confessed only because the detectives had threatened to prosecute his mother if he didn't. A panel of this Court found that Jordan had made out a prima facie case under 28 U.S.C. § 2244(b)(2)(B) for filing a second or successive petition in the district court and entered an order permitting him to do so. (Order, Nov. 17, 2003.)

4
Jordan then filed his second § 2254 petition in the district court, which asserted a claim of actual innocence. He also asked for the assistance of counsel, and the district court appointed the Federal Public Defender to represent him. Acting as Jordan's counsel, an Assistant Federal Public Defender filed in the district court a memorandum of law in support of the petition for writ of habeas corpus. That memorandum conceded, on behalf of Jordan, that a freestanding claim of actual innocence did not provide a basis for federal habeas relief. This is that concession:

5
A bare claim of actual innocence based upon newly discovered evidence, without "an independent constitutional violation" does not establish a basis for federal habeas relief. Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). While "the federal court must grant an evidentiary hearing" in the presence of newly discovered evidence, the "evidence must bear upon the constitutionality of the applicant's detention." Id., quoting Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 9 L.Ed.2d 770. "[T]he existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus." Id.

6
(Petr.'s Mem. of Law in Supp. of Pet. for Writ of Habeas Corpus 2, Feb. 23, 2004.)

7
Immediately after making that concession, the memorandum argued that Jordan's petition did assert a constitutional claim, which it identified as the allegations that his confession had been coerced and, as a result, its use against him at trial had violated the Fifth and Fourteenth Amendments to the Constitution. This is how the memorandum explained that theory:

8
In Mr. Jordan's case, the petition states the grounds for habeas relief as being "newly discovered evidence supporting claim of actual innocence." At first blush, looking simply at the title of the claim, one might prematurely determine that Herrera and Townsend preclude relief. However, upon review of the facts supporting the claim, Mr. Jordan identifies "an independent constitutional violation." Mr. Jordan claims that his confession was [in]voluntary. Within a declaration attached to the petition, Mr. Jordan states the reason for making the statement was the result of the detectives telling him that his "mother could be charged for criminal negligence since he was a minor." Exhibit C of the Petition. Mr. Jordan further states in the declaration that he "did not provide any written or verbal details" about the incident to the detectives. In short, Mr. Jordan claims that his adoption of the statement drafted by detectives was coerced and not a true statement of his involvement in the incident. As such, Mr. Jordan claims that the detectives violated his rights against self-incrimination as guaranteed by the Fifth Amendment and his due process rights as guaranteed by the Fourteenth Amendment.

9
Mr. Jordan's "claim of innocence is thus `not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.'" Schlup v. Delo, 513 U.S. 298, 315, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), quoting Herrera, 506 U.S. at 404, 113 S.Ct. 853. By alleging the detectives coerced him into adopting a false confession, Mr. Jordan has set forth a claim of "an independent constitutional violation."

10
(Id. at 2-3.) After explaining that Jordan's substantive claim was not actual innocence but coerced confession, the remainder of the memorandum argued that Jordan's confession actually had been coerced. (Id. at 3-8.)

11
Sometime later, the district court issued an order instructing the parties to brief the question whether "there is a federal and/or state claim of substantive actual innocence available to Petitioner in either this Court or in the state courts." (Order, Jan. 13, 2005.) The brief that Jordan's counsel filed in response stated that Jordan no longer had available to him in state court a substantive claim of actual innocence, because when he had attempted to file that claim the state courts had held it was barred as untimely, successive, and not based on newly discovered evidence. (Pet'r Jordan's Br. in Resp. to Ct. Order of Jan. 13, 2005 at 2-5, Feb. 2, 2005.)

12
On the question of whether Jordan could obtain relief in federal court on a substantive claim of actual innocence, his brief was ambivalent. (Id. at 5-7.) It conceded on one hand that language in the majority opinion in Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), "appears to bar habeas claims based solely on free-standing assertions of actual innocence," but asserted on the other hand that "the concurring opinion of Justices O'Connor and Kennedy makes clear that a majority of justices agree that habeas relief would be warranted upon a truly persuasive showing of actual innocence, at least in a capital case." (Id. at 5.) The brief noted that other courts were divided on the issue, (id. at 5-6), and suggested that this Court's action in granting Jordan permission to file a successive petition "would seem to indicate" that it "believes that his claim is adequate to deserve encouragement to proceed further," (id. at 7). The brief argued that the district court should, in any event, also construe Jordan's actual innocence claim as a Schlup v. Delo, 513 U.S. 298, 325, 115 S.Ct. 851, 866, 130 L.Ed.2d 808 (1995), gateway claim of innocence and that doing so would permit Jordan to litigate his otherwise procedurally defaulted coerced confession claim. (Id. at 7.) The district court dismissed with prejudice Jordan's petition for a writ of habeas corpus. In doing so, it pointed out that although Jordan had attacked the admissibility of his confession on at least four occasions in state court, and had even testified in a pretrial hearing in an attempt to have the confession suppressed, he never suggested to the state courts that the detectives had threatened to prosecute his mother. (Order 14-16, July 22, 2005.) Jordan had failed to raise this specific claim in state court even though he obviously knew all along whatever it was that the detectives had said to him. For that reason, the district court held that this coerced confession claim was procedurally barred. (Id. at 15-16.)

13
The district court held that the claim was also barred by the second or successive petition rules contained in § 2244(b)(2), because Jordan had known at the time he filed his first § 2254 petition everything the detectives had said to him before he confessed. That fact prevented him from fitting any claim based on those allegations into the § 2244(b)(2)(B)(i) exception. (Id. at 24-25.)

14
To the extent that Jordan was pursuing an actual innocence claim in his second § 2254 petition, the district court ruled that claim was barred because Jordan could have discovered through the exercise of due diligence the two allegedly new witnesses before he filed the first petition. (Id. at 20-24.)

15
After the district court dismissed Jordan's second or successive § 2254 petition with prejudice, he applied for a COA to permit him to appeal, see § 2253(c). The district court denied the application, (Order, Sept. 12, 2005), but a judge of this Court granted a COA, specifying however, that it was granted "on the following issues only":

16
1. Whether a petitioner can bring a new claim in his second or successive 28 U.S.C. § 2254 habeas petition when that claim was not before us in our order granting him leave to file a successive § 2254 petition?

17
2. Assuming that a petitioner can bring a new claim in his successive § 2254 petition that was not raised in his application for a second or successive § 2254, whether the new claim must also meet the newly discovered evidence requirements in § 2244(b)?

18
3. Assuming that a petitioner can raise a new claim in his second or successive 28 U.S.C. § 2254 habeas petition that was not raised in his application for a second or successive § 2254 petition, and assuming that the new claim did not have to meet the newly discovered evidence requirement set forth in 28 U.S.C. § 2244(b), did the district court err in failing to consider whether the petitioner demonstrated a fundamental miscarriage of justice in order to overcome the procedural default in his involuntary confession claim?

19
4. After we granted a petitioner authorization to file a second or successive 28 U.S.C. § 2254 petition, whether a district court can revisit our grant of authority and determine that the petitioner's claim does not meet the threshold requirements for filing a second or successive § 2254 habeas petition under 28 U.S.C. § 2244(b)(2)?

20
5. Assuming that the district court can revisit our grant of authority on a second or successive 28 U.S.C. § 2254 habeas petition, whether the district court properly determined that petitioner's second witness, Theodis Hagans, was not newly discovered as required to meet the requirements for filing a second or successive § 2254 habeas petition as set forth in 28 U.S.C. § 2244(b), and whether the district court should have held an evidentiary hearing to determine if Hagans was newly discovered?

21
(Order 1-2, Nov. 3, 2005 (Wilson, J.) (issue enumerations added)). After setting out those five issues, the COA order stated: "The parties are instructed to brief only the issues above." (Id. at 2.)

22
The first issue stated in the COA order asks if Jordan could bring "a new claim" in the second or successive petition that he did not raise in the § 2243(b)(3)(A) application that we granted permitting him to file the petition. That "new claim" is the coerced confession claim; the actual innocence claim is the only one Jordan raised in his application to us and the only one mentioned in our § 2244(b)(3)(C) order.

23
Recognizing that the COA we granted does not cover the actual innocence claim, Jordan filed a motion in this Court seeking to expand the COA to include that claim. (Mot., Feb. 22, 2006.) The motion, which came in three-and-a-half months after our limited COA order had issued, was treated as a motion for reconsideration. See 11th Cir. R. 22-1(d). Two judges of this Court entered an order denying the motion. This is what their order said:

24
Appellant has filed a motion to expand the certificate of appealability. This motion is in fact a motion for reconsideration because this Court already has considered the question of whether the appellant could bring a freestanding claim of actual innocence and concluded that a certificate of appealability was not warranted in that regard. Therefore, because (1) the original certificate of appealability was granted on November 3, 2005, and appellant did not file the reconsideration motion until February 22, 2006, and (2) appellant has provided no good cause for the untimely filing, appellant's motion for reconsideration is DENIED as untimely. See 11th Cir. R. 27-2. Even if this motion was timely filed, it would be denied because appellant abandoned the freestanding claim of actual innocence in the district court. Appellant is also informed that this Court will not further reconsider this matter. See 11th Cir. R. 27-3.

25
(Order 1-2, Apr. 18, 2006 (Marcus & Wilson, JJ.)).

26
Our refusal to permit Jordan to raise a free standing claim of actual innocence in this appeal could not have been clearer, but it was still not clear enough to prevent counsel for Jordan from attempting to argue that claim at oral argument. As we instructed him then, we will not decide any issues involving the actual innocence claim because the law of this circuit prohibits consideration of any issue that was not specified in the COA order. Murray v. United States, 145 F.3d 1249, 1251 (11th Cir.1998) ("[W]e hold that in an appeal brought by an unsuccessful habeas petitioner, appellate review is limited to the issues specified in the COA."); see also Harrell v. Butterworth, 251 F.3d 926, 928 n. 1 (11th Cir.2001) (declining to address an issue the COA did not cover); McIntyre v. Williams, 216 F.3d 1254, 1256 n. 2 (11th Cir.2000) (same).

27
For what it is worth, our precedent forbids granting habeas relief based upon a claim of actual innocence, anyway, at least in non-capital cases. Brownlee v. Haley, 306 F.3d 1043, 1065 (11th Cir.2002) (alternative holding); see generally Johnson v. DeSoto County Bd. Comm'rs, 72 F.3d 1556, 1562 (11th Cir.1996) ("we are bound by alternative holdings"); McLellan v. Miss. Power & Light Co., 545 F.2d 919, 925 n. 21 (5th Cir.1977) ("It has long been settled that all alternative rationales for a given result have precedential value.").

28
Turning now to the issues properly before us, all of which center around the coerced confession claim, we believe that the most efficient way to proceed is to assume that the answer to the first issue is "yes." For present purposes, we will take as a given that a petitioner may raise in a second or successive petition an issue in addition to the one that the court of appeals granted him permission to raise in its § 2244(b)(3)(A) order.

29
Assuming that is so, the second question framed by the COA is whether that additional issue must also meet "the newly discovered evidence requirements in § 2244(b)[(2)(B)(i)]." The answer to that question is easy. Section 2244(b)(2) plainly states that "[a] claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless" it falls within one of two exceptions. The first exception, which is contained in § 2244(b)(2)(A), speaks to claims based on new rules of constitutional law, and Jordan's coerced confession claim is based on old rules of constitutional law. The other exception applies only where each of two requirements are met, and one of them is that "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence." § 2244(b)(2)(B)(i).

30
In cases where the petitioner is not claiming the benefit of a new rule of constitutional law, if he does not meet the newly discovered evidence requirement his claim "shall be dismissed." § 2244(b)(2). Another provision in the same section makes clear that the district court "shall dismiss any claim" that fails to satisfy the requirements of the section even if the court of appeals authorized the filing of the claim. § 2244(b)(4). The question, then, is whether Jordan has met the newly discovered evidence requirements of § 2244(b)(2)(B)(i) as to his coerced confession claim. That is essentially the fifth COA issue, but before we get to it we need to discuss the third and fourth ones.

31
The third COA issue comes into play only "assuming that the new claim did not have to meet the newly discovered evidence requirement set forth in 28 U.S.C. § 2244(b)." Our answer to the second question forecloses that assumption.

32
The fourth COA question asks whether, after we have granted an order under § 2244(b)(3)(A) authorizing a district court to consider a second or successive petition, the district court can determine if the petitioner's claim meets the § 2244(b)(2) requirements for filing such a petition. The answer is that the district court not only can, but must, determine for itself whether those requirements are met. The statute instructs the court to do so. It provides that: "A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section." § 2244(b)(4).

33
Jordan recognizes the meaning of those words but would have us dilute them with a requirement that the district court give some deference to a court of appeals' prima facie finding that the requirements have been met. He argues that "the district court should not be allowed to review the same evidence as this Court and make the exact opposite factual determinations." (Appellant's Br. 29, 28-30.) But the relevant statutory provisions say nothing about deference, and in issuing a § 2244(b)(3)(A) order authorizing the filing of a second or successive petition in the district court, we do not make any factual determinations. We make only a prima facie decision for § 2244(b)(3)(A) purposes.

34
When we make that prima facie decision we do so based only on the petitioner's submission. We do not hear from the government. We usually do not have access to the whole record. And we often do not have the time necessary to decide anything beyond the prima facie question because we must comply with the statutory deadline. See § 2244(b)(3)(D) (requiring a decision within 30 days after the motion is filed). Even if we had submissions from both sides, had the whole record before us, and had time to examine it and reach a considered decision on whether the new claim actually can be squeezed within the narrow exceptions of § 2244(b)(2), the statute does not allow us to make that decision at the permission to proceed stage. It restricts us to deciding whether the petitioner has made out a prima facie case of compliance with the § 2244(b) requirements.

35
Things are different in the district court. That court has the benefit of submissions from both sides, has access to the record, has an opportunity to inquire into the evidence, and usually has time to make and explain a decision about whether the petitioner's claim truly does meet the § 2244(b) requirements. The statute puts on the district court the duty to make the initial decision about whether the petitioner meets the § 2244(b) requirements — not whether he has made out a prima facie case for meeting them, but whether he actually meets them.

36
Given these circumstances, it would make no sense for the district court to treat our prima facie decision as something more than it is or to mine our order for factual ore to be assayed. The district court is to decide the § 2244(b)(1) & (2) issues fresh, or in the legal vernacular, de novo. See In re Johnson, 322 F.3d 881, 883 (5th Cir.2003) (court of appeals' grant of permission to file a second or successive petition is only tentative and the district court must dismiss the petition if it finds that the statutory requirements for filing one have not been met); Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir.1997) (recognizing that the court of appeals' determination of a prima facie case means "simply a sufficient showing of possible merit to warrant a fuller exploration by the district court" and it gets the petitioner through one of the two gates he must pass through before the merits of his petition may be considered). Our first hard look at whether the § 2244(b) requirements actually have been met will come, if at all, on appeal from the district court's decision, and we are taking that hard look now.

37
We can now resolve the fifth issue stated in the COA order, which asks whether the expected testimony of Jordan's second witness, Theodis Hagans, was newly discovered for purposes of meeting the requirements of § 2244(b)(2)(B)(i), and whether the district court should have held an evidentiary hearing to decide if was. The answer to both questions is that it does not matter whether Hagans' testimony was newly discovered and for that reason no evidentiary hearing was necessary. It does not matter whether Hagans' testimony was newly discovered because even if it were, the testimony is not part of "the factual predicate for the claim" as § 2244(b)(2)(B)(i) also requires.

38
Hagans is one of the two witnesses Jordan proffered to prove that he was actually innocent; Hagans was willing to testify that he saw someone other than Jordan commit the crime. Actual innocence, however, is not an element of a coerced confession claim. A defendant's Fifth and Fourteenth Amendment right not to be forced to confess or forced "to be a witness against himself," U.S. Const. Amend. V, is not a prerogative of the innocent. It is a privilege available even to the guiltiest of the guilty. To put it in § 2244(b)(2)(B)(i) terms, innocence is not part of "the factual predicate for the claim" of coerced confession.

39
The factual predicate for the claim consists of the facts describing the coercion that produced the confession. Those facts — if Jordan's allegations be true — are that the detectives threatened to prosecute his mother if he did not confess. What matters under § 2244(b)(2)(B)(i) is whether Jordan, with the exercise of due diligence, could have discovered those facts at the time he filed his first federal habeas petition. He not only could have discovered those facts, he actually did know them. Because he knew all along what the detectives had said to him, Jordan's confession claim is not based on new evidence at all.

40
Jordan does not really argue that he meets the requirements of § 2244(b)(2)(B)(i). Instead, he argues that he does not have to meet them because his attempt to file a second or successive petition ought to be judged by the standard set out in Schlup, 513 U.S. at 325, 115 S.Ct. at 866, which is more lenient than the one the statute imposes, Cooper v. Woodford, 358 F.3d 1117, 1119 (9th Cir.2004) (en banc) ("The AEDPA requirements for a second or successive application are stricter than the Schlup standard in two ways."). The Schlup decision provided the standard for filing a second or successive petition, at least in capital cases, before the Antiterrorism and Effective Death Penalty Act took effect. That Act, including the provisions now found in § 2244(b), became effective in April of 1996, which was seven years before Jordan sought permission in October of 2003 to file his second or successive petition. We have neither the power nor the inclination to turn back the clock and pretend that the AEDPA was not enacted. See Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 2340, 135 L.Ed.2d 827 (1996) (the added restrictions which AEDPA places on second and successive petitions fall well within Congress' authority). It was enacted, and its provisions govern second or successive petitions.

41
Because Jordan's coerced confession claim is not based on a factual predicate which could not have been discovered previously through the exercise of due diligence, as required by § 2244(b)(2)(B)(i), the district court properly dismissed it, as it was obligated to do by § 2244(b)(4).

42
AFFIRMED.


                        United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                  ___________

                                 No. 97-1259
                                  ___________
Isadore Fendelman; Bernice              *
Fendelman,                              *
                                        *   Appeal from the United States
              Plaintiffs -              *   District Court for the
Appellees,                              *   Eastern District of Missouri
                                        *
     v.                                 *
                                        *
Jerry Stein;                            *
                                        *          [UNPUBLISHED]
              Defendant - Appellant,    *
                                        *
Newhard Cook & Company; Advest,         *
Inc.,                                   *
                                        *
                      Defendants.
                                 ___________

                         Submitted: September 9, 1997
                                        Filed: January 6, 1998
                                  ___________

Before McMILLIAN, HANSEN, and MURPHY, Circuit Judges.
                               ___________

PER CURIAM.
      Jerry    Stein     appeals   the    district   court’s1    order   confirming       an
arbitration award and entering judgment in favor of                Isadore and Bernice
Fendelman.       Stein    argues   the    district   court      lacked   subject   matter
jurisdiction to enter this order.          We affirm.

      On January 25, 1990, the Fendelmans brought suit in federal district
court against their broker, Jerry Stein, and other defendants not involved
in this appeal.    Their    complaint alleged federal securities law violations,
federal Racketeer Influenced and Corrupt Organizations Act (RICO) violations,
and various state law claims.            In April 1994, the district court granted
Stein’s request to stay the proceedings in the district court pending
arbitration by the National Association of Securities Dealers, Inc. (NASD).
In the NASD arbitration, the Fendelmans made the same factual allegations and
legal claims against Stein as they had made in their complaint filed in
district court.     The arbitrators ruled in favor of the Fendelmans based on
their state law claims, awarding $338,000 in actual damages, $165,000 in
punitive damages, $24,000 for attorneys’ fees, and $250 for the arbitration
filing fee.    The arbitrators denied all the Fendelmans’ federal law claims.

      In September 1995, the Fendelmans moved the district court to confirm
the NASD arbitration award and enter judgment against Stein.             Stein responded
by filing a motion to dismiss, arguing the district court lacked subject
matter jurisdiction because the arbitrators had denied the Fendelmans relief
on their federal law claims, and

      1
        The Honorable Edward L. Filippine, United States District Judge for the Eastern
District of Missouri.

                                           -2-
therefore, the court no longer had federal question or pendent jurisdiction2
over the remaining state law claims.             The district court denied Stein’s
motion to dismiss, confirmed the arbitration award, and entered judgment in
favor of the Fendelmans.

      Stein argues that the NASD arbitrators’ denial of the Fendelmans’
federal    law   claims   divested    the      district    court   of   subject   matter
jurisdiction.    All parties agree that the district court had subject matter
jurisdiction over the Fendelmans’ complaint.         The court had jurisdiction over
the federal law claims pursuant to federal question jurisdiction, 28 U.S.C.
§ 1331, and pendent jurisdiction over the state law claims because they arose
from the same “common nucleus of operative fact” as the federal claims.
United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).            Under the common law
doctrine of pendent jurisdiction, a federal court can decide a plaintiff’s
state law claims arising from the same set of facts as the plaintiff’s
federal claim even if the court rules against the plaintiff on the federal
claims.   Siler v. Louisville & Nashville R.R., 213 U.S. 175, 191 (1909).            The
NASD arbitrators ruled in favor of the Fendelmans on their state law claims,
but against them on their federal law claims.             This was analogous to a jury
award finding for the plaintiffs on their state law claims and against them
on their federal law claims, which certainly would not divest the federal
court of jurisdiction to enter judgment on the award.              Under the holding in
Siler, it is clear that the arbitration award did not divest the federal
court of its subject matter jurisdiction.

      2
        Subsequent to the filing of the Fendelmans’ complaint in this case, Congress
codified the common law doctrine of pendent jurisdiction in 28 U.S.C. § 1367 (1994),
as “supplemental jurisdiction.” Because this case was filed prior to its enactment, we
refer to the common law terminology of “pendent” jurisdiction.

                                         -3-
Therefore, we hold the district court had subject matter jurisdiction to
confirm the arbitration award and enter judgment in favor of the Fendelmans.

     A true copy.

           Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

                                   -4-


            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Xiao Q. Zhou,                               :
                       Petitioner           :
                                            :
      v.                                    : No. 1367 C.D. 2017
                                            : ARGUED: June 6, 2018
Workers’ Compensation Appeal                :
Board (New Li Nail Spa, Inc.),              :
                 Respondent                 :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                            FILED: October 17, 2018

      Mr. Xiao Q. Zhou (Claimant)1 petitions for review of the August 29, 2017
Order of the Workers’ Compensation (WC) Appeal Board (Board), which reversed
the Workers’ Compensation Judge’s (WCJ) Decision and Order and denied
Claimant’s petition for workers’ compensation benefits under the Pennsylvania
Workers’ Compensation Act (WC Act)2 for injuries sustained while Ms. Giuying
Hao, the owner, sole manager and president of New Li Spa, Inc. (Employer), was
driving Claimant to work. The issues before this Court are whether the Board erred

      1
        This matter was argued seriately with Jian Li v. Workers’ Compensation Appeal Board
(New Li Nail Spa, Inc.) (Pa. Cmwlth. No. 1332 C.D. 2017, filed October 17, 2018).

      2
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
in concluding that the Ridesharing Arrangements Act (Ridesharing Act)3 precluded
Claimant from recovering workers’ compensation benefits and, if not, whether
Claimant was acting in the course and scope of his employment when he was injured.
For the reasons that follow, we affirm the Board.
                                    I. BACKGROUND
       Claimant worked as a manicurist for Employer. Employer provided lodging
for its employees in a residence located approximately fifteen minutes away from
the salon.     Reproduced Record (R.R.) at 10a, 38a.               Employer also provided
employees daily transportation to and from work in a van titled in Ms. Hao’s name.
R.R. at 45a-48a, 51a-52a, 57a.
       On the morning of December 15, 2013, Ms. Hao was driving Claimant and
other employees to work in her van when the van was in an accident. Claimant
suffered a pelvic fracture and right hip dislocation, as well as back and facial injuries.
R.R. at 178a.
       On October 2, 2014, Claimant filed a workers’ compensation Claim Petition,
alleging that he sustained these injuries during the course and scope of his
employment. R.R. at 178a. Employer filed an Answer, asserting that Claimant was
barred from recovery under the Ridesharing Act. R.R. at 178a.
       At a March 25, 2015 hearing, the parties agreed to bifurcate the matter to first
determine whether the Ridesharing Act precluded Claimant’s recovery under the
Act. If it did not preclude recovery, the matter would then proceed on the merits.
R.R. at 168a, 178a, 190a.

       3
          Act of December 14, 1982, P.L. 1211, as amended, 55 P.S. §§ 695.1-695.9. In 2015,
Section 1 of the Ridesharing Act was repealed and other sections were amended by the Act of July
10, 2015, P.L. 130. At the time of Claimant’s injury, the 1982 version of the Ridesharing Act was
in effect, so we will apply that version of the statute herein.

                                               2
       On November 19, 2015, the WCJ issued an Interlocutory Order finding that
the transportation arrangement between Claimant and Employer did not fall within
the scope of the Ridesharing Act. R.R. at 190a. The matter thus proceeded on the
merits.
       On October 26, 2016, the WCJ issued a Decision and Order, which
incorporated the findings in his Interlocutory Order and granted Claimant’s Claim
Petition. The WCJ found that Claimant’s injuries were sustained in the course and
scope of his employment and awarded temporary total disability benefits as of
December 15, 2013. R.R. at 185a; see also R.R. at 169a-70a. The WCJ further
awarded 20 weeks of benefits for Claimant’s disfigurement claim. R.R. at 184a.
       Employer appealed to the Board. On August 29, 2017, the Board reversed the
WCJ’s Decision and Order, concluding that: the Ridesharing Act was applicable,
and Claimant was precluded from recovering workers’ compensation benefits. R.R.
at 166a-75a. This appeal followed.4
                                        II. ISSUES
       Claimant’s central issue is whether the Board erred in finding that Claimant
was not in the course and scope of his employment when he was injured. The
Employer asserts that the Ridesharing Act is applicable and bars Claimant’s right to
recovery under the Act. Because whether or not the Ridesharing WC Act applies is
a dispositive issue, we will address that issue first.

       4
         Our scope of review in a workers’ compensation appeal is limited to determining whether
constitutional rights were violated, whether an error of law was committed or whether the
necessary findings of fact are supported by substantial evidence. City of Scranton v. Workers’
Comp. Appeal Bd. (Roche), 909 A.2d 485, 489 n.1 (Pa. Cmwlth. 2006).

                                               3
                                   III. DISCUSSION
       The Ridesharing Act itself contains explicit guidance regarding whether an
employee is eligible for workers’ compensation benefits for injuries sustained while
traveling to or from work. Section 3 of the Ridesharing Act provides:

       “The [WC] Act,” shall not apply to a passenger injured while
       participating in a ridesharing arrangement between such passenger’s
       place of residence and place of employment. “The [WC] Act” shall
       apply to the driver of a company owned or leased vehicle used in a
       ridesharing arrangement.
55 P.S. § 695.3 (emphasis added). Under Section 1 of the Ridesharing Act, a
“Ridesharing Arrangement” includes:

       any one of the following forms of transportation:[5]

       (1) The transportation of not more than 15 passengers where such
       transportation is incidental to another purpose of the driver who is not
       engaged in transportation as a business. The term shall include
       ridesharing arrangements commonly known as carpools and
       vanpools, used in the transportation of employees to or from their
       place of employment.

       (2) The transportation of employees to or from their place of
       employment in a motor vehicle owned or operated by their employer.

              ….

55 P.S. § 695.1 (emphasis added).
       Here, the WCJ determined that since the Claimant and Employer relied on
each other to transport Claimant to work, their arrangement was not a “ridesharing
arrangement” under the Ridesharing Act. R.R. at 189a. Rather, the WCJ determined

       5
         There are four types of ridesharing arrangements in Section 1 of the Ridesharing Act.
Only the two identified above are relevant to this appeal.

                                              4
that their transportation arrangement constituted an “employment agreement,”
which is an exception to the general “coming and going rule,”6 and, therefore,
Claimant was in the course and scope of his employment at the time of the accident.
       In reaching its decision, the WCJ relied extensively on Empire Kosher
Poultry, Inc. v. Workmen’s Compensation Appeal Board (Zafran), 623 A.2d 887
(Pa. Cmwlth. 1993), to support his determination that the Ridesharing Act did not
apply. R.R. at 188a-89a. We conclude, however, that the WCJ’s reliance on this
case is misplaced.
       In Empire Kosher, the claimant was injured in a car accident while being
driven home from work by his co-worker in a car owned by the co-worker. The
Board determined that substantial evidence supported the referee’s finding and
concluded that Claimant is entitled to benefits.             On appeal to this Court, the
claimant’s employer argued that his injury was not compensable because the
accident occurred while claimant was participating in a ridesharing arrangement. In
affirming the Board, this Court determined:

       6
         The “coming and going rule” is not a complete bar to recovery under the Act. Our Court
has recognized four exceptions to this rule, which are intended to protect employees who are
specifically acting in the course of their employment while traveling to or from work. See Bensing
v. Workers’ Comp. Appeal Bd. (James D. Morrissey, Inc.), 830 A.2d 1075, 1078 (Pa. Cmwlth.
2003). The exceptions are:

       1. The employment agreement between a claimant and employer includes
          transportation to and from work;
       2. The employee has no fixed place of work;
       3. The employee is injured while on a special assignment for the employer; or
       4. Special circumstances indicate that the employee was furthering the business of
          the employer.

Id. (emphasis added).

                                                5
      [Co-worker’s arrangement with] [c]laimant was not one that can be
      classified as a carpool or vanpool because [c]laimant called upon him
      for a ride either to or from work sporadically, frequently without
      advanced notice, and [co-worker] was not in a position to refuse
      [c]laimant’s requests. In addition, he and [c]laimant did not share the
      expenses as Empire reimbursed [co-worker] for mileage. Moreover,
      since [co-worker’s] terms of employment provide for transportation to
      and from work, [co-worker]’s trip home was not in furtherance of his
      own affairs but was in the course and scope of his employment. Thus,
      as [co-worker] was not merely en route home from work and his
      transportation of [c]laimant was in the course and scope of his
      employment, the use of his automobile to transport [c]laimant on the
      day of the accident was not simply incidental to his purpose in returning
      home from work. Therefore, this arrangement does not constitute a
      ridesharing arrangement and does not preclude benefits under the [Act].

Empire Kosher, 623 A.2d at 891.
      Unlike this case, in Empire Kosher, a co-worker, not the employer,
occasionally drove the claimant home from work. The co-worker’s specific terms
of employment provided for transportation to and from work and reimbursement for
driving expenses. More importantly, our Court analyzed Empire Kosher under
Section 1 of the Ridesharing Act and determined that this arrangement could not be
classified as a “carpool or vanpool.”
      Here, it is undisputed that Employer provided Claimant’s transportation to
work each day and that Employer owned and operated the vehicle used to provide
transportation to Claimant and other employees. This transportation arrangement
falls squarely within the plain and unambiguous language of Section 1(2) of the
Ridesharing Act, namely: “The transportation of employees to or from their place
of employment in a motor vehicle owned or operated by their employer.” 55 P.S.
§ 695.1(2) (emphasis added). For this reason, we conclude that the Ridesharing Act
is applicable, and, therefore, the WC Act does not apply. Claimant is precluded from

                                         6
receiving benefits because he was not in the course and scope of his employment
when the accident occurred.
       We also conclude, that there is no evidence in the record to support the WCJ’s
finding of an “employment agreement.” While Claimant and Employer may have
mutually benefited from their transportation arrangement, there is no evidence that
this “vanpool” arrangement was an actual job requirement or that Claimant would
have lost his job had he declined Employer’s offer of transportation.                         This
transportation arrangement did not impact Claimant’s duties as a manicurist, but
simply involved Claimant getting back and forth to work in a vanpool.
       Finally, we reject Claimant’s assertion that Section 1(2) of the Ridesharing
Act is inapplicable because the van was not actually owned or operated by New Li
Nail Spa, Inc., but by its owner, Ms. Hao. “A corporation is a creature of legal fiction
which can ‘act’ only through its officers, directors and other agents.” Daniel Adams
Assoc., Inc. v. Rimbach Publ’g, Inc., 519 A.2d 997, 1000 (Pa. Super. 1987). Further,
“[a]cts of a corporate agent which are performed in the scope of his or her authority
are binding on the corporate principal.” Id.
      It is undisputed that Ms. Hao is the owner, sole manager, and president of New
Li Nail Spa, Inc.          Ms. Hao and New Li Nail Spa, Inc. are essentially
indistinguishable. The van was titled in Ms. Hao’s name, and Ms. Hao was driving
Claimant to his employment in her van when the accident occurred.7 Therefore,
Claimant’s argument that Employer was not operating the van at the time of his
injury lacks merit.

       7
          Claimant also argues that he was not being transported from his “residence,” relying on
the definition of “residence” set forth in 4 Pa. Code § 95.2. However, this regulation is irrelevant
to the instant appeal. The regulation pertains to the Pennsylvania Civil Service Commission rules
governing examinations required for civil service employees’ appointment and promotion.

                                                 7
                              IV. CONCLUSION
      The Ridesharing Act applies here, and therefore the WC Act does not apply.
Accordingly, because we conclude that the Board properly reversed the WCJ’s
Decision and denied benefits, we affirm the Board’s Order.

                                     __________________________________
                                     ELLEN CEISLER, Judge

                                        8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Xiao Q. Zhou,                      :
                 Petitioner        :
                                   :
     v.                            : No. 1367 C.D. 2017
                                   :
Workers’ Compensation Appeal       :
Board (New Li Nail Spa, Inc.),     :
                 Respondent        :

                                 ORDER

     AND NOW, this 17th day of October, 2018, the August 29, 2017 Order of the
Workers’ Compensation Appeal Board is hereby AFFIRMED.

                                   __________________________________
                                   ELLEN CEISLER, Judge
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Xiao Q. Zhou,                                   :
                              Petitioner        :
                                                :
                      v.                        :    No. 1367 C.D. 2017
                                                :    Argued: June 6, 2018
Workers’ Compensation Appeal                    :
Board (New Li Nail Spa, Inc.),                  :
                        Respondent              :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

DISSENTING OPINION BY
JUDGE COHN JUBELIRER                                FILED: October 17, 2018

       Respectfully, I do not read the Ridesharing Arrangements Act1 (Ridesharing
Act) as broadly as my colleagues do as removing all injuries sustained while an
employee is using employer-provided transportation from the scope of the Workers’

       1
         Act of December 14, 1982, P.L. 1211, as amended, 55 P.S. §§ 695.1-695.9. Section 1 of
the Ridesharing Act was repealed, other sections were added or amended, and it was given the title
“Ridesharing Arrangements Act” by the Act of July 10, 2015, P.L. 130. However, we apply the
1982 version of the Ridesharing Act because that was what was in effect at the time of Xiao Q.
Zhou’s injury, which occurred in December 2013.
Compensation Act2 (WC Act). Instead of a sword slicing coverage from claimants
who would otherwise fall within the ambit of the WC Act, I believe the Ridesharing
Act was intended to shield employers from expanded WC liability based solely on
an employee’s participation in ridesharing arrangements. Because I believe that
Xiao Q. Zhou (Claimant) had an employment agreement that would otherwise have
required New Li Nail Spa, Inc. (Employer) to provide coverage under the WC Act,
I must respectfully dissent.
       The purpose of the Ridesharing Act is “to encourage ride[]sharing
arrangements in Pennsylvania” in order to get “more people [to] use[] carpools or
bus pools to get to work.” S. 166th Sess., Feb. 8, 1982, at 1826 (Senate Legislative
Journal);3 see also Rite Care Res. v. Workmen’s Comp. Appeal Bd. (Davis), 623 A.2d
917, 920 (Pa. Cmwlth. 1993) (stating the Ridesharing Act was intended “to
encourage employers to provide ridesharing and vanpooling”). An increase in such
arrangements would, it was hoped, get “commuters into carpools,” reduce the
number of cars on the roads, reduce traffic jams, and save “millions of gallons of
gasoline . . . every day.”4 Senate Legislative Journal at 1826.
       Generally, under the “going and coming” rule,5 employees injured when
commuting to and from work are not covered by the WC Act because they are not
in the course and scope of their employment.6 Holler v. Workers’ Comp. Appeal Bd.

       2
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
       3
          Available at http://www.legis.state.pa.us/WU01/LI/SJ/1982/0/Sj19820208.pdf (last
visited Oct. 15, 2018).
        4
          The circumstances that led to the enactment of the Ridesharing Act, it can be noted, still
exist today.
        5
          This is also referred to as the “coming and going” rule.
        6
          Section 301(c)(1) of the WC Act defines “injury” as “an injury to an employe, . . . arising
in the course of his employment and related thereto.” 77 P.S. § 411(1) (emphasis added).
“[I]njuries occur during the course and scope of employment when they are ‘sustained while the

                                             RCJ - 2
(Tri Wire Eng’g Sols., Inc.), 104 A.3d 68, 71 (Pa. Cmwlth. 2014). There are
exceptions to the going and coming rule, which include where: an employment
agreement “includes transportation to and from work”; the employee “has no fixed
place of work”; the employee is injured while on a special assignment for the
employer; or special circumstances indicate that the employee “was furthering the
business of the employer.” Id.
       If merely participating in an employer encouraged or provided ridesharing
arrangement could be viewed as furthering the business of the employer or a special
assignment, it could transform an injury that would be non-compensable under the
WC Act into a compensable injury.                This application of the WC Act would
“indirectly discourage these” commuting arrangements, and, to prevent this, the
Ridesharing Act made the WC Act inapplicable to ridesharing.7 Senate Legislative
Journal at 1826; see also Section 3 of the Ridesharing Act, 55 P.S. § 695.3 (stating
the WC Act “shall not apply to a passenger injured while participating in a
ridesharing arrangement between such passenger’s place of residence and place of
employment”). As we have previously explained, “[t]he Ridesharing Act operates

employe is actually engaged in the furtherance of the business or affairs of the employer, whether
upon the employer's premises or elsewhere.’” Holler v. Workers’ Comp. Appeal Bd. (Tri Wire
Eng’g Sols., Inc.), 104 A.3d 68, 70-71 (Pa. Cmwlth. 2014) (quoting Section 301(c)(1) of the WC
Act, 77 P.S. § 411(1)). “Whether a claimant was acting within the course and scope of his
employment when his injury occurred is a question of law and is reviewable de novo.” Id. at 70
n.3
        7
           The Ridesharing Act also renders inapplicable to ridesharing arrangements certain
provisions of other statutes, such as: the Public Utility Code, 66 Pa. C.S. §§ 101-3316; insurance
laws and regulations related to motor carriers or using a motor vehicle for a commercial purpose;
the Tax Reform Code of 1971, Act of March 4, 1971, P.L. 6, as amended, 72 P.S. §§ 7101-10004
(related to the imposition of sales tax); and municipal tax or licensing laws. See Sections 2, 6, and
7 of the Ridesharing Act, 55 P.S. §§ 695.2, 695.6, 695.7. Moreover, laws associated with the
payment of minimum wage, overtime, or the number of hours an employee may work are
inapplicable “to employees while traveling between their residences and places of employment.”
Section 8 of the Ridesharing Act, 55 P.S. § 695.8.

                                             RCJ - 3
to prevent claimants from receiving [WC] benefits when they are merely
commuting to and from work.” Bensing v. Workers’ Comp. Appeal Bd. (James D.
Morrissey, Inc.), 830 A.2d 1075, 1080 (Pa. Cmwlth. 2003) (emphasis added). We
have therefore concluded that an employee’s mere participation in a ridesharing
arrangement cannot be used “as a basis for asserting that he was furthering the
business of [the e]mployer or that he was on a special assignment for [the e]mployer
while participating in the” ridesharing arrangement. Id. (emphasis added). The
Ridesharing Act assures that an employee cannot be found to be furthering an
employer’s interests and, thus, within his course and scope of employment, merely
by participating in a ridesharing arrangement.
      However, I do not believe the Ridesharing Act was intended to transform an
injury that would otherwise have been compensable under the WC Act as an
exception to the going and coming rule, into a non-compensable injury. In this
case, the Workers’ Compensation Judge (WCJ) found that Claimant had an
employment agreement with his Employer that included transportation. Such an
agreement, which can be express or implied and is determined by the totality of the
circumstances, is an exception to the going and coming rule. Wachs v. Workers’
Comp. Appeal Bd. (Am. Office Sys.), 884 A.2d 858, 862 (Pa. 2005). Because of such
an agreement, the multiple injuries Claimant suffered in this car accident would
ordinarily have been compensable under the WC Act. I believe there is substantial
evidence to support the WCJ’s finding in this regard.
      Both Claimant and Guiying Hao, Employer’s Owner/President (Owner),
testified, through interpreters, that Owner provided Claimant, and six other
employees, with transportation from the Employer-provided place to live to
Employer’s nail salon and back every day. (Reproduced Record (R.R.) at 10a-11a,

                                      RCJ - 4
36a-37a, 46a-47a, 51a-52a.) Claimant explained that his employment included that
transportation, he did not pay for that transportation, if Owner did not drive him he
had no way of getting to work because he had no vehicle of his own, he did not know
or remember the details of where he lived, and the nail salon was a 15- to 20-minute
drive from the Employer-provided place to live. (Id. at 10a-11a, 36a-38a.) Owner
testified that Employer provided a place to live, food, and transportation to its
employees, which includes Claimant, and that she picked up those employees and
drove them 12-to-15 minutes to the nail salon every day prior to the accident. (Id.
at 46a-48a, 51a-52a.) Owner agreed that, in order to run her business, she needed to
drive the employees to work. (Id. at 57a.) A reasonable mind would accept this
testimony as support for the conclusion that Claimant’s employment included his
daily transportation to and from work. As such, this testimony constitutes substantial
evidence to support the WCJ’s finding. Wawa v. Workers’ Comp. Appeal Bd.
(Seltzer), 951 A.2d 405, 407 n.4 (Pa. Cmwlth. 2008).
      The majority states that there was no evidence that the “‘vanpool’
arrangement was an actual job requirement or that Claimant would have lost his job
had he declined Employer’s offer of transportation.” Zhou v. Workers’ Comp.
Appeal Bd. (New Li Nail Spa, Inc.) (Pa. Cmwlth., No. 1367 C.D. 2017, filed Oct. 17,
2018), slip op. at 7. However, Claimant credibly testified that he had no way to get
to work if Owner did not drive him the 15 to 20 minutes from the Employer-provided
place to live to the nail salon. (R.R. at 10a-11a, 36a-38a.) As reflected in the record,
Owner drove Claimant and other employees to the nail salon every day prior to the
accident and that, in order for Owner to run her business, she needed to drive those
employees to work. (R.R. at 46a-48a, 51a-52a.) Had Claimant stopped coming to
work because “he declined Employer’s offer of transportation,” he would not have

                                       RCJ - 5
kept his job as a manicurist. Zhou, slip op. at 7. Considering the totality of
circumstances, Wachs, 884 A.2d at 862, the WCJ did not err in concluding that an
employment agreement for transportation existed between Employer and Claimant.
      Had Claimant not had an employment agreement with Employer that included
transportation to and from work, I would agree with the majority that merely
participating in a ridesharing arrangement would not bring him within the WC Act.
That is the import of the Ridesharing Act. However, I believe the issue raised in this
case is whether the Ridesharing Act should be broadly interpreted and applied to
provide a blanket exclusion of WC benefits for any injuries sustained while an
employee is traveling to and from work in a motor vehicle owned or operated by the
employer, even if the employee would otherwise be within the course and scope of
his or her employment. Such a broad interpretation and application would eliminate
WC coverage for employees, like Claimant, who would otherwise meet an exception
to the going and coming rule.
      This is a close case because the language used in the Ridesharing Act can be
interpreted to provide such a blanket exclusion. However, I do not believe that is
the intent of this provision and would interpret the Ridesharing Act more tailored to
accomplishing its objective of encouraging ridesharing, without making such a
sweeping change to the WC Act. I would therefore find that, because this Claimant
did have an agreement with Employer for transportation to and from work, which is
an exception to the going and coming rule, the Ridesharing Act did not apply to bar
his compensation under the WC Act. This is consistent with the fact that the WC
Act is remedial in nature and must be liberally construed to effectuate its
humanitarian purposes. Rite Care Res., 623 A.2d at 920.

                                       RCJ - 6
      For these reasons, I respectfully dissent from the majority and would reverse
the Board.

                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge

Judge McCullough joins in this dissenting opinion.

                                     RCJ - 7


                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD

     CARMEN GOTTLIEB,                                DOCKET NUMBER
                 Appellant,                          NY-3443-15-0168-I-1

                  v.

     DEPARTMENT OF LABOR,                            DATE: June 29, 2016
                 Agency.

             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Carmen Gottlieb, Charlotte, North Carolina, pro se.

           Donyell Marie Thompson, Esquire, and Sharon Bogart, New York, New
             York, for the agency.

                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member

                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed the appeal for lack of Board jurisdiction. Generally, we grant petitions
     such as this one only when: the initial decision contains erroneous findings of
     material fact; the initial decision is based on an erroneous interpretation of statute

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                               2

     or regulation or the erroneous application of the law to the facts of the case; the
     administrative judge’s rulings during either the course of the appeal or the initial
     decision were not consistent with required procedures or involved an abuse of
     discretion, and the resulting error affected the outcome of the case; or new and
     material evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed. See title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).              After fully
     considering the filings in this appeal, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2         On March 31, 2015, the appellant, a Wage and Hour Technician,
     GS-1802-06, filed this appeal alleging that the agency denied her request for a
     geographic reassignment from Westbury, New York, to one of the agency’s North
     Carolina offices. 2 Initial Appeal File (IAF), Tab 1 at 1-2, 7-14.      The appellant
     sought   the   reassignment      as   a   reasonable   accommodation   for   a   health
     condition. Id. at 9. On October 22, 2015, the administrative judge issued an
     initial decision dismissing the appeal for lack of Board jurisdiction. IAF, Tab 9,
     Initial Decision (ID) at 1, 4.
¶3         On or about November 10, 2015, the U.S. Postal Service returned the initial
     decision as undeliverable. IAF, Tab 11. After the administrative judge received
     an updated mailing address in Charlotte, North Carolina from the appellant, he
     again mailed her a copy of the initial decision on or about December 15,

     2
       The appellant has an individual right of action appeal pending before the New York
     Field Office at present, MSPB Docket No. NY-1221-14-0315-W-1, in which she alleges
     that the agency retaliated against her by reducing her grade and failing to provide her
     with a rating of record for fiscal year 2013. No initial decision in that case has been
     issued yet. The administrative judge issued an order to show cause on the issue of
     jurisdiction on December 15, 2015. In a January 13, 2016 email message to the
     administrative judge, the appellant stated that she intends to withdraw that appeal.
     Initial Appeal File, Tab 12 at 2.
                                                                               3

     2015. Id. He explained in a notice to the appellant that the period in which she
     could file a petition for review would begin when she received the initial
     decision.   Id.   On January 13, 2016, the appellant emailed the administrative
     judge stating that she had not yet received the initial decision and that, on May
     22, 2015, she had submitted a request to dismiss the appeal without prejudice.
     IAF, Tab 12 at 2. She stated that she had attached a copy of the request to the
     email message, but no such document is located in the record from below. 3 Id.
     On January 14, 2016, the administrative judge issued another notice to the
     appellant, in which he explained that he had served the initial decision at the
     address she had given and had notified her that the time limit for filing a petition
     for review would begin when she received it.             IAF, Tab 13 at 1. The
     administrative judge also explained that the Board had never received her request
     for dismissal, but, because her appeal raised a question of Board jurisdiction, it
     was unlikely that he would have granted the request. Id. at 2.
¶4        The appellant filed a pleading styled “Appellant’s Second Request for
     Dismissal and Notice of Motion to Quash Initial Decision” by mail with the
     administrative judge on January 28, 2016, and a supplement by facsimile on
     January 31, 2016. Petition for Review (PFR) File, Tabs 1-2. These submissions
     were docketed as a petition for review and supplement by the Clerk of the Board
     on February 8, 2016. Id. In response to the Clerk’s acknowledgement letter, PFR
     File, Tab 3, she filed a timely motion for the Board to accept her filing as timely,
     PFR File, Tab 4. Therein, she states, under penalty of perjury, that she collected
     the initial decision from her post office box on January 12, 2016, and that the
     decision had not been in her box when she last checked it on January 4,
     2016. Id. at 2. She states that the envelope containing the initial decision shows
     that it was rerouted from the address she had given the administrative judge in

     3
       The appellant included a copy of the May 22, 2015 request with the petition for
     review, but she did not provide any proof that she had filed it with the field office
     below. Petition for Review File, Tab 1 at 6, Tab 2 at 12.
                                                                               4

     Charlotte, North Carolina to her new address in Wilmington, North Carolina on
     December 29, 2015. 4 Id. The agency has not offered any evidence controverting
     the appellant’s statement.
¶5        We accept the appellant’s petition for review as timely filed. “Any petition
     for review must be filed within 35 days after the date of issuance of the initial
     decision or, if the petitioner shows that the initial decision was received more
     than 5 days after the date of issuance, within 30 days after the date the petitioner
     received the initial decision.” 5 C.F.R. § 1201.114(e). Here, the initial decision
     was re-sent long after the original issuance date. The Charlotte address that the
     appellant gave the administrative judge in November 2015 was only a temporary
     one, IAF, Tab 12 at 2, 5, but the initial decision was forwarded to another address
     in Wilmington in late December, presumably at her request, PFR File, Tab 4 at 2.
     The appellant stated, under penalty of perjury, that she received the initial
     decision after January 4, 2016, and on or before January 12, 2016.      Id. Even if
     the initial decision reached her post office box on January 5, 2016, her filing on
     January 28, 2016, was timely.
¶6        We nevertheless deny the petition for review. On review, the appellant asks
     the Board to quash the initial decision and “reaffirm the dismissal” of her appeal
     without prejudice. PFR File, Tab 1 at 1. She asserts that the administrative judge
     never granted her request for dismissal or sought to contact her about the request,
     mischaracterized her request for a reasonable accommodation as a request for a
     geographic reassignment, and exceeded the 120-day adjudication period for a
     mixed-case appeal. Id. at 1-2, 4; see 5 U.S.C. § 7702(a)(1).
¶7        The appellant’s arguments are unavailing.        First, nothing in the record
     shows that the administrative judge ever received the request for dismissal. The
     only copies of the request are with the petition for review, PFR File, Tab 1 at 6,
     Tab 2 at 12, and even then, the appellant supplied no proof that her motion had
     4
      The date that the envelope was forwarded is not fully legible, but it falls between
     December 20 and December 29, 2015. PFR File, Tab 4 at 5.
                                                                               5

      ever been mailed or otherwise transmitted to the New York Field Office.
      Although the decision to dismiss an appeal without prejudice is a discretionary
      one, Love v. U.S. Postal Service, 76 M.S.P.R. 490, 492 (1997), we need not
      decide the issue of whether the administrative judge should have dismissed the
      appeal because the request was never received. As for the appellant’s assertion
      that the administrative judge failed to maintain contact with her before the initial
      decision was issued, she has not shown that she attempted to contact the
      administrative judge when she did not receive any response to her request for
      dismissal.
¶8          In any event, the administrative judge decided the appeal correctly. The
      Board’s jurisdiction is limited to those matters over which it has been given
      jurisdiction by law, rule, or regulation.   Maddox v. Merit Systems Protection
      Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant bears the burden of proof
      on the issue of jurisdiction. 5 C.F.R. § 1201.56(a)(2).
¶9          The appellant alleged that the agency improperly denied her request for a
      reasonable accommodation for her disabling condition by refusing to reassign her
      to one of its North Carolina offices. IAF, Tab 1 at 2, 7-14. She also alleged that
      the denial was in retaliation for engaging in prior equal employment opportunity
      activity. Id. at 2. The administrative judge notified the appellant that the Board
      might not have jurisdiction over her appeal. IAF, Tab 3. Although she requested
      and was granted an extension of time in which to respond, IAF, Tabs 4-5, the
      appellant never addressed the jurisdictional issues that the administrative judge
      raised.
¶10         The administrative judge properly found that the Board lacks jurisdiction
      over the appellant’s appeal. The Board lacks jurisdiction over a reassignment
      action unless such action resulted in a reduction in grade or pay. Loggins v. U.S.
      Postal Service, 112 M.S.P.R. 471, ¶ 10 (2009).            That did not happen here.
      Instead, the appellant sought a reassignment as a reasonable accommodation
      because she believed working conditions in New York exacerbated the symptoms
                                                                               6

of her health condition. IAF, Tab 1 at 7-12. After considering several options,
the agency denied her request.     Id. at 9-12.   Absent an otherwise appealable
matter, the Board lacks jurisdiction over the appellant’s discrimination claim.
Lethridge v. U.S. Postal Service, 99 M.S.P.R. 675, ¶ 13 (2005).        Even if the
appellant’s condition had been accepted by the Office of Workers’ Compensation
Programs as a compensable injury and she was seeking reinstatement under
5 C.F.R. part 353, an agency’s duty to restore an employee in the local
commuting area is determined by the location of that employee’s former duty
station. Dean v. U.S. Postal Service, 115 M.S.P.R. 56, ¶¶ 14-15 (2010). The
appellant does not dispute that her former duty station was Westbury, New York.
IAF, Tab 1 at 1. Accordingly, we conclude that the administrative judge properly
dismissed the appeal for lack of Board jurisdiction.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
                                                                               7

title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,    at   our     website,    http://www.mspb.gov/appeals/uscode.htm.
Additional         information         is          available      at    the         court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
         If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono            for     information   regarding   pro     bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.    The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.

FOR THE BOARD:                                    ______________________________
                                                  Jennifer Everling
                                                  Acting Clerk of the Board
Washington, D.C.


21 Kan. App. 2d 580 (1995)
GLENDA CONDON, Claimant/Appellee,
v.
THE BOEING COMPANY-WICHITA and AETNA CASUALTY & SURETY COMPANY, Respondent and Insurance Carrier/Appellants, and KANSAS WORKERS COMPENSATION FUND, Appellee.
No. 73,251
Court of Appeals of Kansas.
Opinion filed October 6, 1995.
Vaughn Burkholder and Stephen M. Kerwick, of Foulston & Siefkin, of Wichita, for appellants.
Vincent L. Bogart, of Klenda, Mitchell, Austerman & Zuercher, of Wichita, for appellee Glenda Condon.
Stacie Sanders and John C. Nodgaard, of Arn, Mullins, Unruh, Kuhn & Wilson, L.L.P., of Wichita, for appellee Workers Compensation Fund.
Before RULON, P.J., GREEN, J., and EDWARD BOUKER, District Judge, assigned.
RULON, J.:
This is a workers compensation case involving a disputed finding concerning the date of accident and the resulting basis for computation of permanent partial disability benefits. The Workers Compensation Board (Board) concluded the date of accident in a repeated mini-trauma case was earlier than the last day worked and, accordingly, the disability claim was to be computed *581 under the 1987 Workers Compensation Act and not subject to the 1993 amendments. The Boeing Company-Wichita (Boeing), and Aetna Casualty & Surety Company (Aetna) appeal. We affirm.
Glenda Condon, claimant, was hired by Boeing in 1987 as a clerk typist. In January 1993, Boeing transferred Condon to a position which required her to do data input for much longer periods of time during her work day. Sometime in May 1993, she developed pain in her wrist, arm, and elbow. Condon reported to Boeing's medical office and was initially diagnosed as having carpal tunnel syndrome.
On June 7, 1993, Condon was seen by Dr. Lesko, an orthopedic surgeon, who initiated some restrictions and recommended therapy. Lesko believed Condon suffered from a median nerve compression, some ulnar nerve irritation, and possibly carpal tunnel syndrome or a dorsal cyst. About June 15, 1993, Condon noticed pain in her shoulders, neck, and left side. Condon again contacted Boeing's medical office, which again referred her to Dr. Lesko. After doing more tests, Lesko still could not specifically identify the cause of Condon's pain.
Condon continued working at Boeing until July 6, 1993, when she was laid off. The parties agree that Condon's layoff was not related to her medical condition. Condon continued to be treated by Dr. Lesko until released on December 14, 1993, but subsequently found work as a receptionist at Wichita State University at a lesser salary.
The record is not entirely clear as to exactly when Condon first filed her workers compensation claim. However, the administrative law judge (ALJ) found that Condon sustained an accidental injury on July 6, 1993, and sustained a 12 1/2% permanent impairment of the function of her left upper extremity, including the shoulder. Specifically, the ALJ found:
"In the instant case, the evidence as a whole establishes that the Claimant has an overuse syndrome due to a series of micro-traumas in the work place. The Claimant continued working and continued experiencing the micro-traumas up through July 6, 1993 when she was laid off. Therefore, the Claimant's last day of work is the date of injury with respect to this claim. The 1993 amendments are applicable."
*582 Under K.S.A. 44-510d, shoulder joint, shoulder girdle, shoulder musculature, or any other shoulder structure injuries are now schedule injuries. Here, the ALJ awarded Condon 28.13 weeks of compensation in the amount of $313 for a 12 1/2% permanent partial schedule injury, making the total award $8,804.69 (225 weeks on the schedule times 12 1/2% less zero weeks of temporary disability equals 28.13 compensable weeks at a rate of $313). Condon then sought review by the Board.
The Board concluded that Condon's injury occurred before July 1, 1993, because:
 Claimant worked a relatively short period of time after July 1, 1993;
 claimant received restrictions from her physician prior to July 1;
 the restrictions were designed to prevent further injury; and
 any injury occurring after July 1, 1993, would be insignificant and not change claimant's limitations or ability to any extent.
The Board found that for computational purposes, Condon's injury occurred June 15, 1993, and used this date because that was the date Condon informed Dr. Lesko of her shoulder problems. The Board further found that Condon had a 29% work disability based on a 24% loss of access to the open labor market and a 34% loss in ability to earn a comparable wage. Because the injury was deemed to have occurred prior to July 1, 1993, the shoulder injuries were covered by K.S.A. 1992 Supp. 44-510e and, consequently, were injuries to the body as a whole. The Board awarded Condon 415 weeks of permanent partial disability at $101.04, for a total award of $41,931.60.
The law in Kansas is well settled that "K.S.A. 44-556 specifically subjects workers compensation appeals to the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. That Act limits the relief granted on appeal. K.S.A. 77-621(c)." Berry v. Boeing Military Airplanes, 20 Kan. App.2d 220, 222, 885 P.2d 1261 (1994). For purposes of this appeal, K.S.A. 77-621(c)(4) and (7) are relevant.

*583 "The court shall grant relief only if it determines any one or more of the following:
....
(4) the agency has erroneously interpreted or applied the law;
....
(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act."
"The 1993 workers compensation amendments limited review of all orders issued after October 1, 1993, to questions of law. K.S.A. 44-556(a). However, whether the Board's findings of fact are supported by substantial competent evidence (K.S.A. 77-621[c][7] is a question of law. Tovar v. IBP, Inc., 15 Kan. App.2d 782, 784, 817 P.2d 212, rev. denied 249 Kan. 778 (1991)." Berry, 20 Kan. App.2d at 222-23.
The issue in this case is similar to one this court addressed in Berry. In Berry, the employee injured his finger on May 12, 1987, and was diagnosed with carpal tunnel syndrome on June 2, 1987. As Berry could no longer perform his original job, Boeing transferred him to a different position. The new job aggravated Berry's condition and, subsequently, Boeing transferred him to an accommodation job working with small parts. Although the new position was at a lower rate of pay, Berry accepted the transfer until he learned such position required a great deal of overtime. Boeing terminated Berry because of his unwillingness to work the overtime. 20 Kan. App.2d at 221.
In September 1987, Berry had surgery on his left wrist. Although the surgery helped, he soon began experiencing pain in his right hand. The right wrist was operated on shortly thereafter. Berry filed a workers compensation claim on July 11, 1988. He subsequently underwent surgery on both hands. 20 Kan. App.2d at 221.
Both the ALJ and the Board determined the date of Berry's injury was the last day he worked and, thus, the law in effect on that date controlled. Because Berry had not introduced evidence of his inability to perform work in the open labor market, or evidence regarding his ability to earn a comparable wage, he was not entitled to work disability. Berry appealed, arguing that his injury *584 occurred prior to July 1987 and that he should not have had to prove loss of access to the open labor market and loss of ability to earn comparable wages. 20 Kan. App.2d at 222. The Berry court concluded that carpal tunnel syndrome could fit the definition of both an "accident" and an "occupational disease." 20 Kan. App.2d at 224.
Kansas statutes provide the following definitions:
"`Accident' means an undesigned, sudden and unexpected event or events, usually of an afflictive or unfortunate nature and often, but not necessarily, accompanied by a manifestation of force. The elements of an accident, as stated herein, are not to be construed in a strict and literal sense, but in a manner designed to effectuate the purpose of the workers compensation act that the employer bear the expense of accidental injury to a worker caused by the employment." K.S.A. 44-508(d).
"`Occupational disease' shall mean only a disease arising out of and in the course of the employment resulting from the nature of the employment in which the employee was engaged under such employer, and which was actually contracted while so engaged. `Nature of the employment' shall mean, for purposes of this section, that to the occupation, trade or employment in which the employee was engaged, there is attached a particular and peculiar hazard of such disease which distinguishes the employment from other occupations and employments, and which creates a hazard of such disease which is in excess of the hazard of such disease in general. The disease must appear to have had its origin in a special risk of such disease connected with the particular type of employment and to have resulted from that source as a reasonable consequence of the risk." K.S.A. 44-5a01(b).
As in Berry, Condon suffered from a condition of which the origin could not be determined as to a specific date. The Berry court acknowledged that different jurisdictions have established different methods for determining the date of injury when the injury or condition occurs over a gradual period: "According to [1B Larson, The Law of Workman's Compensation § 39.50 (1992)], there are two alternative criteria for determining the date of accident where the injury is gradual. The first is the time at which the employee can no longer perform his or her job." 20 Kan. App.2d at 224. Here, this never occurred. There is no evidence in the record that Condon could not do her job, only that Dr. Lesko had placed certain restrictions on her. Up until her last day of work, Condon was still at the same data processing job. The other criteria *585 for determining the date of accident where the injury is gradual, according to Professor Larson, "is the onset of pain which necessitates medical attention." 20 Kan. App.2d at 224. In the instant case, the use of this determinant would mean Condon's injury took place prior to July 1993, and, consequently, the Board's determination would be correct.
The Berry court also noted a third method formulated by the Illinois Supreme Court in Peoria County Belwood v. Ind. Com., 115 Ill.2d 524, 505 N.E.2d 1026 (1987). In that case the court found that the date of accidental injury in a "repetitive-trauma" case is the date on which the injury manifested itself. The injury was manifested when both the fact of the injury and the causal relationship to the claimant's employment became apparent to a reasonable person. 115 Ill.2d at 531. Applying this rationale to Condon's case would set the date of the injury prior to July 1993.
A later case, Oscar Mayer & Co. v. Industrial Comm'n, 176 Ill. App.3d 607, 531 N.E.2d 174 (1988), modified the Peoria rule by holding that the term "fact of the injury" was not synonymous with the "fact of discovery."
"We reiterate we are dealing with a repetitive-trauma injury. Nothing we say here should be interpreted as establishing an inflexible rule. Just as we reject respondent's contention the date of discovery of the condition and its relation to the employment necessarily fixes the date of accident, we reject any interpretation of this opinion which would permit the employee to always establish the date of accident in a repetitive-trauma case by reference to last date of work." 176 Ill. App.3d at 612.
Finally, the Berry court, faced with multiple methods of determining the "date of injury," decided on a bright line rule which set the "date of injury" or "date of occurrence" in carpal tunnel syndrome cases at the last day worked where the employment came to an end when the employee could no longer continue the job because of the condition. 20 Kan. App.2d at 229.
"Under our statutory scheme, disability compensation must begin at some fixed point in time. In the case of disability which is the result of a personal injury caused by accident, the date of the accident becomes the date from whence compensation flows. K.S.A. 44-510e(a)(1). In the case of an occupational disease, the injury or condition is deemed to have `occurred' on the last day worked. K.S.A. 44-5a06." 20 Kan. App.2d at 228.

*586 "The fact is, carpal tunnel syndrome appears to be a hybrid condition that is neither fish nor fowl. It is a condition caused by repetitive trauma over a long period of time. While it is true that it is caused by trauma and thereby fits the definition of an `injury caused by accident,' it is nonetheless a condition that defies any attempt to affix the precise date the accident occurred....
....
"We hold that carpal tunnel syndrome is a condition that cannot logically be said to be either a personal injury caused by accident or an occupational disease. Because of the complexities of locating the date of injury in a carpal tunnel syndrome case, the process is simplified and made more certain by adopting a rule that in a carpal tunnel syndrome action, the date from which compensation flows is the last date worked by the claimant. This date will not only simplify the process, it offers the least potentials prejudice to future claimants. In establishing this date, we decline to label the condition. It is a condition that lies somewhere in between a personal injury caused by accident and an occupational disease. It has features of both, but best lends itself to a `last day of work' analysis as the date of injury or occurrence." 20 Kan. App.2d at 229-30.
Here, Condon was diagnosed with a number of possible afflictions, including: carpal tunnel syndrome, cervical spondylopathy and double crush syndrome, flexor tenosynovitis, overuse syndrome, lateral epicondylitis, a mild bulging at C6-7, overuse syndrome of the cervical spine, left shoulder girdle and left upper extremity with aggravation of degenerative changes in the cervical spine, tendonitis in the left shoulder, epicondylitis of the left elbow, and entrapment neuropathy of the ulnar nerve at the left elbow and wrist. According to the ALJ, Condon suffered from overuse syndrome and a series of micro-traumas associated with her employment. The Board found that Condon suffered injuries associated with the repetitive activities of her job and that the date of injury was June 15, 1993, the date Condon reported her additional pain to Dr. Lesko.
Under the facts shown, Condon's injuries are of the type caused by continuing repetitive activity over a period of time and are not subject to being defined as occurring on a specific date. Such injuries are described as micro-trauma injuries. Because it is impossible to determine exactly when the injury or injuries have occurred and because such injuries occur over a period of time, this type of condition is virtually the same for workers compensation purposes *587 as carpal tunnel syndrome. Consequently, Berry is persuasive authority.
Condon's injuries, like Berry's, are a hybrid condition that lies somewhere between a personal injury caused by accident and an occupational disease. Such condition, which the record shows occurred over a period of months, was obviously caused by some kind of trauma but is nevertheless a condition that defies any attempt to determine a precise accident date.
Because of these factual similarities, Boeing argues that Berry is controlling and that the date of the injury was Condon's last day of work, July 6, 1993. Boeing is correct in that the type of injury suffered here is sufficiently similar to that in Berry to make that case relevant. However, there was an additional factor present in Berry that is not present here.
In Berry, the claimant was forced to quit his job because of his injury. This court specifically held:
"The date of accident or date of occurrence in a workers compensation action involving carpal tunnel syndrome is the last day on which a claimant performs services for his or her employer and is required to stop working as a direct result of the claimant's pain and disability resulting from carpal tunnel syndrome." (Emphasis added.) 20 Kan. App.2d 220, Syl. ¶ 3.
However, when a worker suffering from work injuries caused by micro-traumas is laid off from work in a general layoff, and not because of a medical condition, the date of injury is not always the last day the worker worked.
The Board has exclusive jurisdiction to review all decisions of administrative law judges and such review includes both questions of law and fact. K.S.A. 44-555b(a). The ultimate issue on appeal is whether the Board's findings are supported by substantial competent evidence. Findings in a workers compensation case which are supported by substantial competent evidence will be upheld. Elder v. Arma Mobile Transit Co., 253 Kan. 824, 826, 861 P.2d 822 (1993). "`The term "substantial evidence" when applied to workers' compensation cases means evidence that possesses something of substance and relevant consequence or evidence that furnishes a substantial basis of fact from which the issues presented *588 can be reasonably resolved.'" Crabtree v. Beech Aircraft Corp., 229 Kan. 440, 442, 625 P.2d 453 (1981).
In this case, the Board found, considering the record as a whole, that Condon's injury had occurred by June 15 and that the work subsequent to July 1 would not have significantly contributed to her condition. The record supports this finding as Dr. Lesko placed restrictions on Condon's work in June 1993. We are convinced there is substantial competent evidence that Condon's injury occurred prior to July 1, 1993, and, as such, her award shall be computed under the pre-1993 law.
Affirmed.


185 F.2d 547
ACHESON, Secretary of State,v.NOBUO ISHIMARU.
No. 12690.
United States Court of AppealsNinth Circuit.
Dec. 4, 1950.

Ray J. O'Brien, U.S. Atty., Howard K. Hoddick, Asst., Honolulu, T. H., Edgar R. Bonsall, Asst. U.S. Atty., San Francisco, Cal., for appellant.
Wilfred C. Tsukiyama, Honolulu, T. H., A. L. Wirin, Los Angeles, Cal., for appellee.
Before HEALY, BONE, and POPE, Circuit Judges.
PER CURIAM.

1
This matter is before us on a motion to dismiss the appeal of the Secretary of State on the ground that the order of which he seeks review is not appealable.  By agreement of the parties, the appeal is likewise before us for decision on the merits in event the motion to dismiss is denied.

2
In 1948 appellee (hereafter called the plaintiff) brought suit against the Secretary pursuant to Sec. 503 of the Nationality Act of 1940, 8 U.S.C.A. § 903,1 to obtain a judgment declaring him to be a national of the United States.  The Secretary answered, but notwithstanding the suit has long been at issue it has not been tried, allegedly because of the refusal of the Consular authorities to grant the plaintiff's application for a certificate of identity so that he may come to Hawaii, where the suit is pending, to testify in his case.  Consult Statute, note 1, supra.  In March of 1950 plaintiff moved for an order directing the Secretary to issue such a certificate, ;supporting the motion by an affidavit of his counsel giving an account of the circumstances.  The matters stated in the affidavit were not controverted by the Secretary, and the court ordered the latter to issue a certificate, or other equivalent document, enabling the plaintiff to return to Hawaii for the purpose of attending the trial and being a witness in his own behalf.  It is from this order that the appeal was taken.

3
It appears to be undisputed that the plaintiff, as alleged in his complaint, was born in the Territory of Hawaii and went as a minor to Japan.  As conceded by the Secretary in his argument here, the sole issues raised below are: '1. Did the Appellee expatriate himself, under the provisions of Section 801c, Title 18, United States Code, by serving in the Japanese Army?  2.  Did the Appellee expatriate himself, under the provisions of Section 801e, Title 8, United States Code, by voting in a political election in a foreign state, namely Japan?'2

4
We are of opinion that the order below is not appealable.  It appears not to fall 'in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.'  Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528.  By this order the district court but took a step toward final disposition of the merits of the case.  The order is more nearly analogous to that held purely interlocutory in Cobbledick v. United States, 308 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783, involving an attempted appeal from the denial of a motion to quash a subpoena duces tecum.

5
The appeal is dismissed.

1
 The statute reads: 'If any person who claims a right or privilege as a national of the United States is denied such right or privilege by any Department or agency, or executive official thereof, upon the ground that he is not a national of the United States, such person, regardless of whether he is within the United States or abroad, may institute an action against the head of such Department or agency in the District Court of the United States for the District of Columbia or in the district court of the United States for the district in which such person claims a permanent residence for a judgment declaring him to be a national of the United States.  If such person is outside the United States and shall have instituted such an action in court, he may, upon submission of a sworn application showing that the claim of nationality presented in such action is made in good faith and has a substantial basis, obtain from a diplomatic or consular officer of the United States in the foreign country in which he is residing a certificate of identity stating that his nationality status is pending before the court, and may be admitted to the United States with such certificate upon the condition that he shall be subject to deportation in case it shall be decided by the court that he is not a national of the United States.  Such certificate of identity shall not be denied solely on the ground that such person has lost a status previously had or acquired as a national of the United States; and from any denial of an application for such certificate the applicant shall be entitled to an appeal to the Secretary of State, who, if he approves the denial, shall state in writing the reasons for his decision.  The Secretary of State, with approval of the Attorney General, shall prescribe rules and regulations for the issuance of certificates of identity as above provided.'  8 U.S.C.A. § 903

2
 By reference to the statute (footnote 1, supra) it is seen to provide that 'Such certificate of identity shall not be denied solely on the ground that such person has lost a status previously had or acquired as a national of the United States'


771 So.2d 1264 (2000)
Charles DeGESO, Appellant,
v.
STATE of Florida, Appellee.
No. 2D99-2810.
District Court of Appeal of Florida, Second District.
November 15, 2000.
James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.
BLUE, Judge.
Charles DeGeso appeals his convictions for two counts of trafficking in cocaine in violation of section 893.135, Florida Statutes (1995); passing a worthless check in violation of section 832.05(2), Florida Statutes (1995); and failure to appear in violation of section 843.15, Florida Statutes (1995). He raises nine issues on appeal. We see no basis for reversing the convictions, and they are affirmed without discussion. We reverse the sentences, however, and remand for resentencing in accordance with this opinion.
DeGeso argues that the trial court erred by scoring four of the points for prior record because the offenses were committed more than ten years prior and he had a clean record for the intervening ten-year period. The State argued below that the release dates fell within the previous ten years, but the State did not introduce any documentary evidence to support its argument. On appeal, the State contends that this claim was abandoned, but this contention is not supported by the record.
*1265 "When the defense challenges prior convictions and the accuracy of the scoresheet, the state has the burden of producing competent evidence of the disputed conviction." Watson v. State, 591 So.2d 951, 953 (Fla. 2d DCA 1991). Here, the State offered no evidence, only argument by the prosecutor. Accordingly, we reverse and remand for resentencing with a new scoresheet. The trial court must use a 1994 scoresheet because, as the State concedes, DeGeso's offense dates fall within Heggs v. State, 759 So.2d 620 (Fla.2000) (holding 1995 sentencing guidelines unconstitutional).
Finally, DeGeso argues that the trial court erred by denying credit for time served in the New Jersey prison system while he was being held on the Florida detainer. A trial judge has "inherent discretionary authority to award credit for time served in other jurisdictions while awaiting transfer to Florida." Kronz v. State, 462 So.2d 450, 451 (Fla.1985). In exercising this discretion, a trial court should consider whether the defendant was being held "solely because of the Florida offense for which he or she is being sentenced." 462 So.2d at 451. Because the record reveals the trial court did not understand that it had this discretion, we direct that the matter be addressed on remand.
Convictions affirmed; sentences reversed; remanded for resentencing.
ALTENBERND, A.C.J., and FULMER, J., Concur.