first citing A & J Builders, Inc. v. Workers’ Comp. Appeal Bd. (Verdi), 78 A.3d 1233 (Pa. Cmwlth. 2013); and then citing Furnari v. Workers’ Comp. Appeal Bd. (Temple Inland), 90 A.3d 53 (Pa. Cmwlth. 2014)
How later courts described this case
- first citing A & J Builders, Inc. v. Workers’ Comp. Appeal Bd. (Verdi), 78 A.3d 1233 (Pa. Cmwlth. 2013); and then citing Furnari v. Workers’ Comp. Appeal Bd. (Temple Inland), 90 A.3d 53 (Pa. Cmwlth. 2014)
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dennis Smith, :
Petitioner :
:
v. : No. 796 C.D. 2016
: Argued: September 13, 2017
Workers' Compensation Appeal :
Board (Supervalu Holdings PA, LLC), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JOSEPH M. COSGROVE, Judge1
OPINION
BY JUDGE SIMPSON FILED: January 5, 2018
Dennis Smith (Claimant) petitions for review of an order of the
Workers' Compensation Appeal Board (Board) that affirmed an order of a Workers'
Compensation Judge (WCJ) granting a modification petition filed by Claimant’s
employer, Supervalu Holdings PA, LLC (Employer). Based upon a labor market
survey showing five available positions within Claimant’s medical restrictions with
an average pay of $400.56 per week, the WCJ modified Claimant’s weekly benefits
to the rate of $394.63. Claimant contends the Board erred in finding substantial
evidence for the WCJ’s modification of his benefits, and that the Board further erred
in concluding that the WCJ properly applied the principles established by the
Supreme Court in Phoenixville Hospital v. Workers' Compensation Appeal Board
1
This decision was reached before the conclusion of Judge Cosgrove’s service with this
Court on December 31, 2017.
(Shoap), 81 A.3d 830 (Pa. 2013). Upon review, we affirm as modified by this
opinion.
I. Background
In February 2011, Claimant sustained a work injury to his head and
neck when a case of store products, weighing approximately eight or nine pounds,
fell from a shelf above him and struck his head. A temporary notice of compensation
payable, which later converted to a notice of compensation payable (NCP),
described the accepted injuries as a cervical strain/sprain. Pursuant to the NCP,
Claimant began receiving benefits at the rate of $661.67 per week based upon an
average weekly wage (AWW) of $992.50.
In November 2013, Employer filed a modification petition seeking to
modify Claimant’s benefits as of April 28, 2013. Employer’s petition further alleged
Claimant had an earning power of $440.00 per week, which would reduce
Claimant’s weekly benefit to $368.33. Claimant filed an answer denying the
material allegations of Employer’s modification petition. Employer also requested
a supersedeas, which the WCJ denied.
In addition, in March 2014 Employer filed a suspension petition
alleging Claimant was offered a medical procedure highly likely to cure his disability
and return him to gainful employment. Although the procedure had a low potential
risk, Claimant nevertheless refused the procedure. Claimant filed a timely answer
denying Employer’s material allegations. Employer again requested a supersedeas,
which the WCJ denied.
2
During the WCJ’s proceedings, Employer presented deposition
testimony from Dr. Jeffrey A. Baum (Employer’s Physician), a physician board
certified in orthopedic surgery. Employer’s Physician first treated Claimant for a
work injury in July 2008 which resulted in numbness, tingling and pain in his upper
left extremity. In December 2008, Employer’s Physician performed a two-level
cervical discectomy and fusion. Claimant did well following the surgery and
returned to his forklift driver position. In April 2010, Employer’s Physician
discharged Claimant from his care.
In June 2011, following his second work injury in February 2011,
Claimant returned to Employer’s Physician’s care. Claimant provided a history of
his new work injury and reported symptoms of pain and spasm in his neck.
Employer’s Physician continued to see Claimant over the next several months,
during which time Claimant underwent physical therapy. Claimant continued to
report some spasm in his neck, especially if he would repetitively extend his neck
backward.
In June 2012, Claimant returned to Employer’s Physician’s office and
saw his partner, Dr. Smith (Partner Physician). At that time, Claimant had more pain
and spasm in his neck. Claimant underwent a three-dimensional CT scan, which
revealed that his earlier bone graft did not completely fuse the vertebral bodies.
Partner Physician advised Claimant of the failure of the fusion and informed him
that the standard treatment for a failed anterior fusion is to do a posterior segmental
fusion. Employer’s Physician testified that studies indicated an 80% chance that the
proposed surgery would resolve Claimant’s symptoms. Further, although
3
Employer's Physician could not guarantee that Claimant could return to the pre-
injury job following the proposed surgery, the doctor testified Claimant would be
capable of performing some type of employment with restrictions.
Employer’s Physician further testified that in late May or early June of
2013, he was provided with job analyses for the following positions: dispatcher for
the American Automobile Association (AAA); dispatcher with Vector Security;
dispatcher with St. Moritz Security Services, Inc.; and, security guard with Am-
Guard Security, Inc.
Employer also submitted deposition testimony from a vocational
rehabilitation counselor, Nikki Davies (Vocational Counselor). She testified that the
Department of Labor and Industry approved her to conduct interviews and assess
earning power under the Workers' Compensation Act2 (Act). Vocational Counselor
first reviewed information provided by Employer’s Physician regarding Claimant’s
restrictions. Claimant could not lift over 25 pounds with no repetitive overhead
lifting and no repetitive neck extensions.
During an interview, Claimant provided Vocational Counselor with a
history of his work injury and his employment. Prior to working for Employer,
Claimant worked as a lot attendant for Kenny Ross Chevrolet. Utilizing Claimant’s
work history, educational background and work restrictions, Vocational Counselor
performed a transferable skills analysis.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
4
Based upon her transferable skills analysis and her interview with
Claimant, Vocational Counselor identified five open and available positions within
Claimant’s vocational and medical restrictions, and which were located within
Claimant’s geographic area. These positions included dispatcher at AAA; alarm
dispatcher operator at Vector Security; dispatcher at St. Moritz Security Services,
Inc.; and, two security guard positions with Am Guard Security, Inc.
Vocational Counselor further testified that the weekly pay for the five
positions ranged from $360.00 to $440.00 per week. This would equate to an AWW
of $400.56.
Before the WCJ, Claimant testified he worked for Employer for 27
years at different positions including forklift operator and loader. Claimant
sustained his first work injury in 2008 and began treating with Employer’s
Physician, who performed cervical fusion surgery and placed hardware in
Claimant’s neck. Following surgery, Claimant returned to work as a lift operator.
After being bumped for seniority reasons, Claimant began working at
the selector position, where he sustained a work injury in February 2011. Claimant
was helping a lift operator put cases on overhead shelves when a case slipped and
hit him in the head. Following the incident, Employer’s Physician removed him
from work and prescribed therapy.
In September 2011, Claimant returned to light duty work in the dairy
warehouse. He worked in that position until May or June 2012. During that time,
5
he continued to experience pain and spasms in his neck. Employer’s Physician
removed him from work in June 2012. Diagnostic studies revealed a non-union of
the grafts in his cervical spine. Employer’s Physician discussed possible surgery to
address the non-union of the grafts. However, Claimant continued, Employer’s
Physician informed him that fixing the non-union would not make him any better.
Further, Claimant testified Employer’s Physician never told him there would be an
80% chance that he would have a pretty good resolution of his symptoms. Thus,
Claimant testified he was afraid to undergo the proposed surgery, which would not
enable him to return to his pre-injury job.
Claimant also testified about meeting with Vocational Counselor and
applying for the five positions she identified as being available for him. Claimant
submitted a resume online to St. Moritz Security Services for the dispatcher position.
However, St. Moritz never contacted him or offered him employment. Claimant
further testified he never worked as a dispatcher.
Claimant also submitted an application to Vector Security for the alarm
dispatch position. However, Vector Security never contacted him or offered him
employment. Claimant testified the position required moderate to advanced
keyboarding skills, which he did not have.
Claimant also contacted AAA about the dispatcher job and spoke to Liz
Jackson in Human Resources. Jackson instructed Claimant to submit a resume,
which he did. However, AAA never contacted him or offered him employment.
6
In addition, Claimant contacted Am-Guard about the two security guard
positions. Claimant spoke with a gentleman who instructed him to go to the Career
Link Center in Youngwood and complete an application. Claimant completed the
applications and was interviewed for the positions. However, Claimant received no
further contact from Am-Guard, and Am-Guard never offered him employment.
Claimant further testified he applied for numerous other positions on
his own. However, nobody interviewed him or offered him employment.
Ultimately, the WCJ accepted Vocational Counselor’s testimony as
credible and persuasive. WCJ’s Op., 12/29/14, Finding of Fact (F.F.) No. 11.
Although Claimant testified he applied for each of the five positions and was not
hired, the WCJ found “there is nothing in the record to indicate that the five job
positions were not open and available at the time of his application process, nor is
there any evidence in the record to indicate that they were already filled, and did not
exist.” Id. Consequently, based on Vocational Counselor’s testimony that the five
positions equated to an AWW of $400.56, the WCJ reduced Claimant’s AWW as
follows: $992.50 - $400.56 = 591.94 x 66 2/3% = $394.63 weekly benefit rate,
effective April 28, 2013. Id.
In addition, the WCJ found, based on Employer’s Physician’s
testimony, that the proposed posterior segmental fusion surgery would not decrease
Claimant’s disability or restore any of his earning power. F.F. No. 12. Therefore,
the WCJ determined Claimant’s reluctance to undergo the posterior segmental
fusion did not amount to a refusal of reasonable medical treatment. Id.
7
Consequently, the WCJ denied Employer’s suspension petition.
However, the WCJ granted Employer’s modification petition and modified
Claimant’s weekly benefit rate to $394.63, effective April 28, 2013.
Both parties appealed to the Board, which affirmed the WCJ’s decision.
In affirming the WCJ’s grant of Employer’s modification petition, the Board rejected
Claimant’s arguments that the positions were not within his vocational capabilities
and geographic area. To that end, the Board noted Vocational Counselor’s testimony
that the five positions fell within Claimant’s transferable skills analysis. Bd. Op.,
4/19/16, at 10. The Board further observed that Vocational Counselor testified that
for someone living where Claimant did in Lowber, Pennsylvania, Westmoreland
County and Allegheny County would be considered normal geographic areas for
finding employment. Id. at 11. In particular, Vocational Counselor testified that
each of the five identified positions were located within the normal geographical
range for someone where Claimant lived to find employment. Id.
The Board also rejected Claimant’s arguments that the positions must
be open and available, and that the WCJ shifted the burden to Claimant to prove that
the positions were not available, thereby improperly applying Phoenixville.
Section 306(b)(2) of the Act,3 which discusses how a partially disabled
claimant’s “earning power” shall be determined, states: “Disability partial in
character shall apply if the employe is able to perform his previous work or can,
3
Added by the Act of June 24, 1996, P.L. 350, as amended.
8
considering the employe’s residual productive skill, education, age and work
experience, engage in any other kind of substantial gainful employment which exists
in the usual employment area in which the employe lives within this
Commonwealth.” 77 P.S. §512(2) (emphasis added). The Board recognized that
the Supreme Court interpreted the phrase “substantial gainful employment which
exists” to mean the “existence of meaningful employment opportunities, and not the
simple identification of jobs found in want ads or employment listings.”
Phoenixville, 81 A.3d at 842-43. Further, to establish earning capacity, the
legislature intended that the employer must prove “the existence of open jobs that
the claimant is capable of filling, not simply the existence of jobs that are already
filled ….” Id. at 843. In short, the jobs identified must “be those jobs that are
actually open and potentially available, not simply jobs that are already filled with
existing employees.” Id. (emphasis added)
Here, the Board reasoned Employer bore the burden to establish only
that the positions identified in the labor market survey were open and actually
available to Claimant at the time the survey was conducted. Bd. Op. at 12 (citing
Rebeor v. Workers' Comp. Appeal Bd. (Eckerd), 976 A.2d 655 (Pa. Cmwlth. 2009)).
In the present case, Vocational Counselor testified these positions were open at the
time of her survey. The Board also noted that Claimant applied for these positions,
which apparently remained open, and that there was “no indication that any evidence
was presented that the positions were not open as of the time [Vocational Counselor]
conducted her survey.” Bd. Op. at 13 (emphasis added).
9
Nevertheless, the Board noted that the Supreme Court’s decision in
Phoenixville provides a claimant with the opportunity to present evidence that he
applied for the indicated positions, but that none were open. The Board then
observed that the WCJ found there was nothing in the record to indicate the five
positions were not open and available at the time of Claimant’s application. Bd. Op.
at 14. To that end, the Board stated: “Claimant was given the opportunity to present
evidence that he called or applied for the positions but none were open or available
to him for employment; however, the WCJ found no evidence to support Claimant’s
contention that none were open or available. As such, the WCJ did not transfer the
burden to Claimant to prove the positions were not open and we see no error.” Id.
(emphasis added). Therefore, the Board affirmed the WCJ’s grant of Employer’s
modification petition.
In addition, the Board denied Employer’s suspension petition. As
noted, the Board determined the proposed posterior segmental fusion surgery would
not decrease Claimant’s disability or restore any of his earning power. Therefore,
the WCJ determined Claimant did not refuse reasonable medical treatment. Id.
Having denied the parties’ appeals, the Board affirmed the WCJ’s
order. Claimant petitions for review.4
II. Discussion
4
Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed or whether constitutional rights
were violated. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa.
2013).
10
A. Substantial Evidence
1. Argument
Claimant first contends the Board erred in determining that substantial
evidence of record supports the WCJ’s decision modifying his benefits. In
particular, Claimant asserts the Board erred in concluding that Vocational Counselor
identified five open and available positions through her transferable skills analysis.
In support of his position, Claimant cites Vocational Counselor’s testimony on cross-
examination that none of the five identified positions were located through
Claimant’s transferable skills analysis, and that Claimant never worked in customer
service, as a security guard, or as a dispatcher. See Dep. of Nikki Davies, 3/12/14,
at 36-38; R.R. at 36a-38a. Thus, Claimant argues, Vocational Counselor improperly
and illogically concluded that the five identified jobs fell within Claimant’s
vocational capabilities.
In sum, Claimant asserts, the WCJ’s decision to modify his benefits,
based entirely on a finding that Vocational Counselor located the five identified
positions using her transferable skills analysis, is not supported by substantial
evidence. Moreover, Claimant argues, the WCJ’s modification of Claimant’s
benefits is not supported by any evidence in the record.
Claimant further contends the WCJ erred by failing to consider that in
addition to the five positions identified by Vocational Counselor, Claimant applied
for jobs with 16 different employers and could not obtain any interviews or offers of
employment. Claimant asserts this evidence is directly relevant to a determination
of his earning power.
11
2. Analysis
In response to Claimant’s argument, Employer asserts Vocational
Counselor’s testimony, viewed in its entirety, provides substantial evidence for the
WCJ’s modification of Claimant’s benefits. To the extent Vocational Counselor
opined that Claimant could perform the duties of all five positons, we agree.
As Claimant asserts, Vocational Counselor testified on direct
examination that the different types of employment options located through the
transferable skills analysis included such positions as lot attendant; mail clerk; route
delivery clerk; and, stuffer. Davies Dep. at 12; R.R. at 12a. However, Vocational
Counselor further testified these positions were “just an example.” Id. Further,
when asked if those four occupations were the only occupations Claimant was
capable of performing, Vocational Counselor testified:
No. There were many more that came out of the
transferable skills analysis. I was only giving a limited
view on my report of what positions were located in the
transferable skills analysis, but there are many entry level
positions that would be looked into during the labor
market survey for the earning power assessment that
would provide on the job training for a person to perform
a position.
Davies Dep. at 13; R.R. at 13a (emphasis added).
Specifically, regarding the five identified positions, Vocational
Counselor testified that each of the five positions required only a high school
diploma and that each employer was willing to train an employee as to all necessary
12
job skills. See Davies Dep. at 17-26; R.R. at 17a-26a. Although Claimant never
performed these positions, the WCJ credited Vocational Counselor’s testimony that
they were entry level positions with on-the-job training and therefore fell within
Claimant’s vocational abilities. F.F. No. 9.
In addition, we reject Claimant’s contention that the WCJ failed to
consider that he also applied for jobs on his own and was unable to obtain any
interviews or offers of employment. The WCJ noted this fact in Finding of Fact No.
10, thus indicating he considered it. However, the WCJ credited Vocational
Counselor’s testimony that the five identified positions in her labor market survey
fell within Claimant’s physical, medical and vocational abilities. F.F. No. 11.
In workers’ compensation cases, the WCJ is the ultimate fact-finder and
therefore has exclusive province over questions of credibility and evidentiary
weight. A & J Builders, Inc. v. Workers’ Comp. Appeal Bd. (Verdi), 78 A.3d 1233
(Pa. Cmwlth. 2013). The WCJ may accept or reject the testimony of any witness in
whole or in part. Id. Further, it is irrelevant whether the record contains evidence
to support findings other than those made by the WCJ; our critical inquiry is whether
there is evidence to support the findings the WCJ actually made. Furnari v. Workers’
Comp. Appeal Bd. (Temple Inland), 90 A.3d 53 (Pa. Cmwlth. 2014). Here, the
WCJ’s credibility findings are supported by the record.
B. Phoenixville
1. Argument
13
Claimant also contends the WCJ, in determining the five identified
positions were actually open and available, erred in failing to apply the principles
established by the Supreme Court in Phoenixville. In particular, with respect to the
term “substantial gainful employment which exits,” the Court stated:
[I]n order for the term ‘substantial gainful employment
which exists’ to be meaningful within the context of the
Act, it must encompass more than the mere existence of
jobs compatible with a claimant’s restrictions that happen
to be open at the time they are discovered by the
employer’s expert witness, as the Commonwealth Court
held in this case. The statutory concept of ‘substantial
gainful employment which exists’ would be meaningless
with respect to a claimant’s actual medical and vocational
circumstances unless the jobs identified by the employer’s
expert witness, which are used as proof of earning power
under Section 306(b), remain open until such time as the
claimant is afforded a reasonable opportunity to apply for
them. Otherwise, the legislatively selected terms ‘earning
power,’ ‘substantial gainful employment’ and ‘exists,’
would become mockeries of their commonly understood
meanings. See 1 Pa. C.S. §1903(a) (‘Words and phrases
shall be construed to … their common and approved
usage’).
Phoenixville, 81 A.3d at 845 (emphasis by underline added).
Here, Claimant asserts, Vocational Counselor had no idea whether any
of the five identified positions were open and available beyond the date she contacted
the prospective employers. Further, although given the opportunity, Employer
presented no evidence that would have established the five positions were still open
and available when Claimant made his applications.
14
Claimant also contends the WCJ improperly shifted the burden of proof
to Claimant by concluding in Finding of Fact No. 11 that although Claimant was not
hired for any of the five positions, there was nothing in the record to show that those
positions were not open and available at the time of Claimant’s application.
In addition, Claimant asserts the Board determined, as the WCJ found,
“Claimant was interviewed for some of the positions, indicating such positions were
clearly open.” Bd. Op. at 13-14. Therefore, Claimant argues, the Board erroneously
confirmed the WCJ’s determination that all five of the positions were open and
available at the time Claimant applied for them.
Summarizing, Claimant argues Employer presented no evidence that
the five identified positions were open and available beyond the date Vocational
Counselor contacted the prospective employers. Consequently, neither the WCJ nor
the Board had any evidence to support their conclusions that these five positions
were still open and available at the time Claimant completed his applications.
Therefore, Claimant argues Employer could not establish he had a reasonable
opportunity to apply for these positions as required by Phoenixville.
2. Analysis
a. Recent Cases
In Phoenixville, the Court addressed the modification of workers’
compensation benefits generally, and the process of proving residual earning power
of a partially disabled claimant through a labor market survey and expert testimony
in particular. The Court noted that “an employer is required to establish the
existence of substantial gainful employment that is compatible with the claimant’s
15
residual productive skills, education, age, and work experience ….” Phoenixville,
81 A.3d at 844 (emphasis added).
In addition, the Court held that if the statutory phrase “substantial
gainful employment which exists,” is to be meaningful within the context of the
goals of the Act, the phrase “must encompass more than the mere existence of jobs
compatible with a claimant’s restrictions that happen to be open at the time they are
discovered by the employer’s expert witness ….” Id. at 845. The Court held that
“the jobs identified by the employer’s expert witness, which are used as the
employer’s proof of earning power … [should] remain open until such time as the
claimant is afforded a reasonable opportunity to apply for them.” Id. (emphasis
added).
To fill the gap of information about the continued availability of jobs
after the time they were discovered by the employer’s expert witness, the Court in
Phoenixville held that a claimant must be given the opportunity “to submit evidence
regarding her or his experience in pursuing the jobs identified” in a labor market
survey. Id. The Court, however, did not state it was the claimant’s burden to do so.
More recently, in Valenta v. Workers’ Compensation Appeal Board
(Abington Manor Nursing Home and Rehab and Liberty Insurance Co.), ___ A.3d.
___ (Pa. Cmwlth., No. 1302 C.D. 2016, filed December 7, 2017), this Court followed
our Supreme Court’s lead in Phoenixville. As in Phoenixville, the employer’s expert
witness did not offer testimony that the identified jobs remained available beyond
the date identified in the labor market survey. The claimant, however, testified that
16
she applied for some of the identified jobs, but she was not offered any.
Nevertheless, the claimant’s testimony, including her testimony that during her
attempts to apply for identified positions she was either turned down, told the
position was unavailable, or unable to reach the contact person, was not accepted by
the fact-finder.
The Valenta Court expanded on the burden of proof. As part of an
extended discussion on burden of proof, this Court ultimately stated that “while [the
employer] maintains an ongoing burden to show that the jobs [identified in a labor
market survey] remained open and available, under Phoenixville, a claimant can
present evidence to the contrary.” Valenta, ___ A.3d at ___ (Slip Op. at 20)
(emphasis added). The Court held that if a claimant offers evidence about her
experience in pursuing the jobs identified in a labor market survey, the evidence can
be considered against her in the overall evaluation of the availability of the jobs.
b. What Must Be Proven
The Supreme Court in Phoenixville, and this Court in Valenta, made
clear that there must be proof that jobs identified by an employer’s expert witness as
proof of earning power must remain open until such time as a claimant is afforded a
reasonable opportunity to apply for them. Based on Phoenixville and Valenta, we
hold that a modification of benefits based on proof of earning power associated with
specific positions cannot be granted without evidence in the record that the specific
positions remain open until such time as a claimant is afforded a reasonable
opportunity to apply for them. In the absence of such evidence, earning power
17
associated with specific positions cannot be used in the calculation of earning power
under Section 306(b).
c. Which Party Bears the Burden of Proof
Based on our recent decision in Valenta, we hold that an employer
bears the burden of proving all facts entitling it to a modification of benefits,
including the continued availability of jobs identified as proof of earning power.
However, if a claimant offers evidence about her experience in pursuing the jobs
identified in a labor market survey, that evidence can be considered on the issue.
d. Proof in This Case
Here, the Board, citing Rebeor, which predates the Supreme Court’s
decision in Phoenixville, reasoned that Employer bore the burden to establish “only
that the positions identified in the labor market survey were open and actually
available to Claimant at the time the survey was conducted.” Bd. Op. at 12
(emphasis added). The Board then noted that Vocational Counselor credibly
testified these positions were open at the time of her survey. Id. Based on our
analysis above, this proof, by itself, is inadequate on the issue of whether identified
positions remained open and available for a sufficient period.
However, as the Board stated, the WCJ found Claimant immediately
applied for the positions and that they were still open. Bd. Op. at 13. In particular,
the Board reasoned, “Claimant was interviewed for some of the positions, indicating
such positions were clearly open.” Id. at 13-14. Nonetheless, the Board affirmed
18
the WCJ’s determination that all five jobs were open because the WCJ found no
evidence to support Claimant’s contention that all five were not open.
We question whether merely mailing an application or making an
online application to a prospective employer constitutes substantial evidence that the
position in question remains open and available at the time of the application. Such
evidence, by itself, is so ambiguous and so suggestive of different inferences as to
amount to speculation on this point. If there is additional circumstantial evidence
about a job application, however, such evidence may support a finding that the
position is open and available. So, testimony of an in-person application during
which information is exchanged, evidence of follow-up communications between a
claimant and a prospective employer which prompt acts or inaction by a claimant,
or evidence relating to an interview, may be a sufficient basis for a finding.
We agree with the Board that evidence that the Claimant here was
interviewed for some identified positions constitutes substantial evidence that those
positions remained open and available. In the absence of additional circumstantial
evidence beyond mere applications, however, we respectfully disagree that there is
substantial evidence to support a finding that all the other jobs were open and
available. Moreover, we disagree with the reasoning of the WCJ and the Board that
it was Claimant’s burden to prove that all five jobs were not open. As we recently
clarified in Valenta, the employer bears the burden of proving all facts entitling it to
a modification of benefits, including the continued availability of jobs identified as
proof of earning power.
19
Consequently, we note the Board’s observation that Claimant only
received an interview for the two security guard positions with Am-Guard.
Therefore, we are constrained to hold that only these two positions remained open
and available under Phoenixville. Because Employer established the existence of
two open and available jobs within Claimant’s vocational, physical and medical
restrictions, Employer is entitled to a modification of benefits based on those two
positions. As such, rather than averaging the weekly rate of the five positions
identified in the labor market survey, as the WCJ did in Finding of Fact No. 11,
Employer is entitled to a modification of benefits based on the average weekly rate
of the two security guard positions. In Finding of Fact No. 9, the WCJ found that
one of the security guard positions paid $9.00 per hour for a 40-hour work week
($360 per week) and the other paid $10.30 per hour for a 40-hour work week ($412
per week). Collectively, these positions averaged $386 per week.
Applying the formula used by the WCJ in Finding of Fact No. 11:
($992.50 AWW - $386 x. 66 2/3% = $404.30 weekly benefit rate), we recalculate
the WCJ’s modification of Claimant’s weekly benefit rate from $396.63 to $404.30
effective April 28, 2013. See 42 Pa. C.S. §706 (an appellate court may affirm,
modify, vacate, set aside or reverse any order brought before it for review).
III. Conclusion
For the above reasons, we affirm the order of the Board with the
modification of Claimant’s weekly benefit rate from $396.63 to $404.30 retroactive
to April 28, 2013.
20
ROBERT SIMPSON, Judge
Judge Brobson concurs in the result only.
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dennis Smith, :
Petitioner :
:
v. : No. 796 C.D. 2016
:
Workers' Compensation Appeal :
Board (Supervalu Holdings PA, LLC), :
Respondent :
ORDER
AND NOW, this 5th day of January, 2018, for the reasons stated in the
foregoing opinion, the order of the Workers' Compensation Appeal Board is
AFFIRMED with the modification that Petitioner’s weekly workers’ compensation
benefit rate is modified from $396.63 to $404.30, retroactive to April 28, 2013.
ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dennis Smith, :
Petitioner :
: No. 796 C.D. 2016
v. :
: Argued: September 13, 2017
Workers’ Compensation Appeal :
Board (Supervalu Holdings PA, LLC), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
CONCURRING OPINION
BY JUDGE McCULLOUGH FILED: January 5, 2018
I concur in the result reached by the Majority. However, I write
separately to address the Majority’s discussion of this Court’s holding in Valenta v.
Workers’ Compensation Appeal Board (Abington Manor Nursing Home and Rehab
and Liberty Insurance Co.), ___ A.3d ___ (Pa. Cmwlth., No. 1302 C.D. 2017, filed
December 7, 2017) and the burden in these cases.
Contrary to the Majority, we did not hold in Valenta that “if a claimant
offers evidence about her experience in pursuing the jobs identified in a labor market
survey, the evidence can be considered against her in the overall evaluation of the
availability of the jobs.” ___ A.3d at ___ (Slip op. at 17.) Rather, we merely held
that, under Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap),
81 A.3d 830 (Pa. 2013), a claimant must be permitted the opportunity to present
evidence regarding his/her experience in applying for jobs identified by an employer
as being open and available. Further, in describing the burden in Valenta, we held
that “Employer maintains an ongoing burden to show that the jobs remained open
and available,” and the claimant “can present evidence to the contrary.” ___ A.3d
at ___ (Slip op. at 20.) I am concerned that the present Majority opinion may be
construed as shifting the burden to the claimant to establish that any identified jobs
are not open and available, an outcome which is not directed by either Valenta or
Phoenixville Hospital.
________________________________
PATRICIA A. McCULLOUGH, Judge
President Judge Leavitt joins this opinion.
PAM - 2
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dennis Smith, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Supervalu Holdings PA, LLC), : No. 796 C.D. 2016
Respondent : Submitted: September 13, 2017
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORBLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
DISSENTING OPINION
BY JUDGE COSGROVE FILED: January 5, 2018
I agree with the concurring opinion of Judge McCullough noting that
the Majority misreads this Court's opinion in Valenta v. Workers' Compensation
Appeal Board (Abington Manor Nursing Home and Rehab and Liberty Insurance
Co.), __ A.3d __ (Pa. Cmwlth. No. 1302 C.D. 2017, filed December 7, 2017).
Contrary to the Majority's suggestion, Valenta does not allow a claimant's evidence
as to his/her experience in pursuing jobs identified in the labor market survey "to be
considered against [him/her] in the overall evaluation of the availability of … jobs."
(_ A.3d at _, slip op. at 17). Such is a clear misread of Valenta and more importantly,
a misapplication of Phoenixville Hospital v. Workers’ Compensation Appeal Board
(Shoap), 81 A.3d 830 (Pa. 2013). In that case, the Supreme Court made clear that it
was the employer which bore the burden of establishing that “the jobs identified by
the employer’s expert witness that the claimant is ‘capable of performing’ must thus
be those jobs that are actually open and potentially available….” Id. at 843
(emphasis added). The way the Majority applies this principle turns it on its head
and allows a mechanism designed to protect the claimant to become a force against
him or her. This cannot be what the Supreme Court meant.
However, I cannot agree with the concurring opinion's acceptance of
the result reached by the Majority. The mistaken interpretation of both Phoenixville
Hospital and Valenta so taints that result that I can do nothing other than dissent.
___________________________
JOSEPH M. COSGROVE, Judge
JMC-2