# G.B. Thomas v. Sysco Foods (WCAB)

> Commonwealth Court of Pennsylvania · April 26, 2024

URL: https://www.frixlaw.com/law-library/cases/9963919

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** April 26, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Cohn Jubelirer, President Judge
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9963919

## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

George B. Thomas, :
Petitioner :
:
v. : No. 1414 C.D. 2021
: Submitted: April 6, 2023
Sysco Foods (Workers’ Compensation :
Appeal Board), :
Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: April 26, 2024

George B. Thomas (Claimant) petitions for review of an Order of the
Workers’ Compensation Appeal Board (Board), which reversed a decision by a
Workers’ Compensation Judge (WCJ) that denied a Modification Petition filed by
Sysco Foods (Employer). Claimant argues: (1) the WCJ lacked jurisdiction over
the Modification Petition because the named employer was not Claimant’s employer
at the time of the work injury; and (2) to modify benefits based on a labor market
survey, an employer must show a specific job vacancy existed within the usual
employment area within the relevant geographical area and timeframe and that
alternative nonunion employment is unavailable. See St. Joe Container Co. v.
Workmen’s Comp. Appeal Bd. (Staroschuck), 633 A.2d 128 (Pa. 1993). Upon
review, we affirm.

1
This matter was reassigned to the author on February 13, 2024.
I. BACKGROUND
On July 1, 2016, Claimant suffered an injury to his left leg, for which
Employer issued a Notice of Compensation Payable accepting the injury as a left leg
contusion, (WCJ Decision at 4.) The parties subsequently stipulated that Claimant’s
injury should be expanded to include a lower left leg amputation and an adjustment
disorder with mixed anxiety and depressed mood, which a WCJ approved in
September 2018. (Id.) Claimant’s average weekly wage was adjusted to $1,584.83
with a weekly compensation rate of $978.00. (Id.)
On March 7, 2019, the Modification Petition was filed listing “Sysco Foods”
as the defendant/employer. (Id.; Reproduced Record (R.R.) at 6a.) The
Modification Petition sought to reduce Claimant’s weekly benefits to $549.18 based
on an earning capacity evaluation showing Claimant had an earning capacity of
$660.00 per week. (WCJ’s Decision at 4; R.R. at 6a.) Claimant filed an answer
denying same. (R.R. at 8a.)

A. Proceedings before the WCJ
In support of its Modification Petition, Employer presented the deposition
testimony of Dr. Richard Schmidt, a board-certified orthopedic surgeon who
examined Claimant, Dr. Gladys Fenichel, a board-certified psychiatrist who
examined Claimant twice, and John Dieckman, a certified rehabilitation counselor
and certified disability management specialist who performed a vocational interview
and analysis of Claimant. Claimant testified in person before the WCJ and presented
the deposition testimony of Gary Young, a certified rehabilitation counselor and
certified disability management specialist, and Dr. Kenneth Weiss, who is board
certified in adult psychiatry and forensic psychiatry. Claimant also introduced a

2
copy of a collective bargaining agreement (CBA) between Sysco Philadelphia, LLC,
and Teamsters Local Union No. 676 (Teamsters).
Dr. Schmidt testified as follows.2 Dr. Schmidt examined Claimant on October
1, 2018. Claimant, who was 43 years old, described his work injury to Dr. Schmidt,
which resulted in his leg being amputated at the knee and a prosthesis with a
microchip processor being fitted. (WCJ Decision Findings of Fact (FOF) ¶¶ 2(b)-
(c), (e), 5(b)-(c).) While Claimant originally used crutches or a walking stick, he no
longer does. (Id. ¶¶ 2(c), 5(c).) Claimant can walk quickly but not jog or run. (Id.
¶¶ 2(d), 5(c).) Claimant is also able to bear full weight on his leg and drive a vehicle
with an automatic transmission. (Id. ¶¶ 2(c), (f), 5(c), (f).) Claimant reported some
phantom sensation in the leg, for which he takes pain medication as needed. (Id.
¶¶ 2(d), 5(c).) Following a physical examination, Dr. Schmidt diagnosed Claimant
with a crush injury to the left leg, requiring left leg disarticulation. (Id. ¶¶ 2(e)-(f),
5(d), (f).) In Dr. Schmidt’s opinion, Claimant could do light-duty work as he had no
restrictions on sitting, was able to drive an automatic transmission, could walk a total
of three and stand four hours out of an eight-hour day, and could occasionally lift
and carry up to 20 pounds, though he could not climb ladders. (Id. ¶¶ 2(g), 5(g).)
Based upon Dr. Schmidt’s review of the 13 job analyses prepared by Mr. Dieckman,
Dr. Schmidt believed all 13 positions were within Claimant’s physical capacities.3
(Id. ¶¶ 2(h), 5(h)-(i).)

2
Dr. Schmidt’s deposition testimony can be found in the Reproduced Record at 416a
through 449a. The WCJ summarized Dr. Schmidt’s testimony in Findings of Fact 2 and 5. There
is some overlap between the findings. Accordingly, we cite both findings in such instances.
3
The positions approved included Vector Security-Scheduler 2; Police and Fire Credit
Union-call center customer service representative; Lucky Vitamin-call center customer service
representative; Pacifico Auto Group-cashier; Turn 5-customer service representative; Winner
Airport Parking-customer service representative; First Transit-dispatcher; Ardmore Toyota-
(Footnote continued on next page…)

3
Dr. Fenichel testified as follows.4 Dr. Fenichel first saw Claimant on January
23, 2018. (Id. ¶ 3(b).) Recounting the work injury to Dr. Fenichel, Claimant was
upset and tearful. (Id. ¶ 3(e), (p).) After seeing a psychiatrist once or twice in the
hospital, Claimant started treating with Dr. Barbara Watson weekly in August 2016
before changing to biweekly visits. (Id. ¶ 3(f), (q).) Before the accident, Claimant
wanted to see a psychiatrist, and his desire to seek mental health treatment was
compounded by the work injury. (Id. ¶ 3(g), (ee).) Claimant told Dr. Fenichel he
felt lost as he did not expect to start over at his age, and because he felt his life was
placed on hold after the accident, he was worried about the future. (Id. ¶ 3(h), (p).)
Claimant is sometimes depressed, and his mood fluctuates. (Id. ¶ 3(i).) To stay
happy and positive, Claimant developed strategies, such as getting out of the house,
staying busy around the house, reading, watching less television, socializing more,
participating in amputee support groups in person and online, and wanting to pursue
swimming, something he had previously done. (Id. ¶ 3(i), (p).) Although he was
released to physically return to work, Claimant was concerned about going back to
the warehouse, which he described as the “scene of the crime.” (Id. ¶ 3(j).) In March
2017, Claimant had attended a work function and while it was nice to see colleagues,
he felt uncomfortable at the work site and did not want to stay long. (Id. ¶ 3(j).)
Claimant reported to Dr. Fenichel that he experienced phantom pain, dreams about
having a leg, and flashbacks, dreams, and nightmares, and felt vulnerable and
lacking confidence. (Id. ¶ 3(k), (p).) Claimant’s mother, who visited him daily after
his accident, has since been diagnosed with Stage IV cancer. (Id. ¶ (3(l).) He was

automotive internet sales; Hertz-customer sales representative; MidAtlantic AAA-retail sales
associate II; Harrah’s Chester Casino-alarm monitor; SugarHouse Casino-surveillance officer; and
Beneficial Bank-customer service representative. (FOF ¶ 5(h).)
4
Dr. Fenichel’s deposition testimony can be found in the Reproduced Record at 332a
through 394a and is summarized by the WCJ in Finding of Fact 3.

4
inspired by the people who cared for him and has enrolled in community college to
obtain an associate degree in nursing and intends to enroll in a registered nurse
program. (Id. ¶ 3(m).) According to Dr. Fenichel, Claimant finds enjoyment hard
and short-lived, constantly thinks about the injury, and was suicidal without a plan
or intent and could not imagine hurting himself. (Id. ¶ 3(n), (p).) Previously,
Claimant filed for bankruptcy, had a home in foreclosure, and was involved in an
accident in which he struck a pedestrian with his vehicle, all of which were stressors.
(Id. ¶ 3(o), (ee).) Dr. Fenichel reviewed Claimant’s records from Dr. Watson, which
recounted much of the same things Claimant told Dr. Fenichel. (Id. ¶ 3(q)-(s).) In
addition, the records revealed Claimant returned to bartending in March 2017, which
Claimant reported as a positive experience. (Id. ¶ 3(r).) The records revealed
Claimant also told Dr. Watson that he took some basic English and writing classes
at a community college in early 2018 and was working with Dr. Watson to view the
injury as an opportunity to expand underdeveloped latent skills and to go to school
to pursue a career. (Id. ¶ 3(s).) Dr. Watson diagnosed Claimant with adjustment
disorder with mixed anxiety and depressed mood, with which Dr. Fenichel agreed.
(Id. ¶ 3(q), (s)-(t).) Dr. Fenichel did not believe Claimant suffered from post-
traumatic stress disorder (PTSD), nor did Dr. Watson. (Id. ¶ 3(t), (v), (dd).)
Following her initial evaluation, Dr. Fenichel believed Claimant could return to
work without any psychiatric restrictions. (Id. ¶ 3(w).)
Dr. Fenichel evaluated Claimant again on January 9, 2019. (Id. ¶ 3(x).) By
this time, Claimant had not treated with Dr. Watson since August 2018 and had no
further appointments with his orthopedic doctors. (Id. ¶ 3(x).) He was assisting his
mother, who was in remission from cancer. (Id. ¶ 3(x).5) Claimant had earned six

5
There are two paragraphs 3(x) in the WCJ’s Decision. This was the second.

5
credits from a community college, earning an A and B, but did not continue as he
told Dr. Fenichel he wanted to try to return to work, possibly even at Employer. (Id.
¶ 3(y)-(z), (ee).) At the latter examination, Claimant still reported suicidal thoughts
without plan or intent, feeling depressed and sorry for himself, and lack of
motivation. (Id. ¶ 3(bb).) Dr. Fenichel’s diagnosis remained unchanged. (Id. ¶
3(cc).) Once again, from a psychiatric perspective, Dr. Fenichel did not restrict
Claimant’s ability to return to work, including the pre-injury position as a forklift
operator. (Id. ¶ 3(gg).)
Mr. Dieckman testified as follows.6 Mr. Dieckman is approved by the
Department of Labor and Industry (L&I) to perform vocational interviews. (Id.
¶ 4(a).) He conducted a vocational analysis and, on October 18, 2018, a vocational
interview of Claimant. (Id. ¶ 4(b)-(c).) In doing so, he reviewed Dr. Schmidt’s
October 1, 2018 report, a July 13, 2017 report by a Dr. Ahn releasing Claimant with
no orthopedic restrictions, the Functional Capacities Evaluation, and Dr. Fenichel’s
psychiatric assessment. (Id. ¶ 4(b).) Claimant lived in the West Philadelphia area,
had a driver’s license, and was able to drive a vehicle with an automatic
transmission. (Id. ¶ 4(d)-(e).) Mr. Dieckman had a favorable initial impression of
Claimant and was impressed by Claimant’s excellent communication skills. (Id.
¶ 4(f).) Claimant told Mr. Dieckman that Claimant’s symptoms vary from day to
day, with good and bad days in terms of standing and walking. (Id. ¶ 4(h).) Claimant
was beginning to learn Microsoft Office programs and knows how to email, search
the internet, and text using a smartphone. (Id. ¶ 4(i).) Claimant had a limited work
history, having worked 22 years for Employer as a member of the Teamsters, 15
years of which were as an order picker and 7 years as a forklift driver. (Id. ¶ 4(j).)

6
Mr. Dieckman’s deposition testimony can be found in the Reproduced Record at 498a
through 566a and is summarized by the WCJ in Finding of Fact 4.

6
According to Mr. Dieckman, Claimant’s bartending skills were transferrable to
customer service and Claimant could perform an even greater number of positions
with some training. (Id. ¶ 4(k).) Mr. Dieckman focused on more sedentary positions
and believed Claimant could work as a dispatcher, appointment clerk, cashier,
security guard, surveillance monitor, general clerk, and street dispatcher. (Id.
¶ 4(k).) Mr. Dieckman referred Claimant to 14 positions and completed 13 job
analyses. (Id. ¶ 4(k); R.R. at 531a.) The highest paying position had an earning
capacity of $660 per week, and the average earning capacity of the 14 positions was
$551.91 per week. (FOF ¶ 4(l).) None of the 14 positions were with the Teamsters.
(Id. ¶ 4(m).) Mr. Dieckman did not contact anyone to determine Claimant’s union
status or review the CBA. (Id. ¶ 4(m).) Mr. Dieckman was not certain Claimant
could maintain employment if he had to call off due to leg pain or problems with his
prosthesis. (Id. ¶ 4(o).) Mr. Dieckman also testified that he confirmed with Kathleen
Easley of human resources that there were no positions within Claimant’s
restrictions but, on cross-examination, stated he did not know with which Sysco
entity she was employed. (R.R. at 523a, 548a.)
Claimant testified as follows.7 Claimant originally testified he did not feel
like he could work and was not looking for work but later testified that he believed
he could perform work that did not require heavy lifting. (FOF ¶ 1(d).) Dr. Weiss
encouraged Claimant to return to work. (Id.) Claimant testified his whole life,
including his outlook and feelings of self-worth changed, and that he no longer feels
like the same person. (Id. ¶ 1(e).) His depression and anxiety interfere with his
relationship with his mother, for whom he cares and takes to appointments as
needed. (Id. ¶ 1(e), (h).) Claimant’s amputated leg is sometimes badly swollen

7
Claimant’s hearing testimony can be found in the Reproduced Record at 88a through 101a
and is summarized by the WCJ in Finding of Fact 1.

7
when he wakes, such that he cannot wear a prosthesis and must call his prosthetist
for assistance. (Id. ¶ 1(f).) Claimant also experiences severe shooting nerve pain
for which he takes medication. (Id. ¶ 1(g).)
Claimant had not treated with Dr. Watson since March 2019 or Dr. Weiss
since his initial evaluation, and although Claimant testified he intended to return to
Dr. Watson, he had not yet made any appointments. (Id. ¶ 1(a).) Claimant has not
paid union dues since the date of the work injury and was not sure of his seniority
status. (Id. ¶ 1(b)-(c).) He received a withdrawal card because he was not working
and thought the card might protect his seniority. (Id. ¶ 1(b).) Other union benefits,
including health insurance, have been suspended, and Claimant is no longer accruing
pension benefits. (Id.)
Mr. Young testified as follows.8 Mr. Young is certified by L&I to conduct
vocational evaluations and interviewed Claimant at the request of Claimant’s
counsel on April 24, 2019. (Id. ¶ 6(a).) Claimant was a high school graduate, had a
mixology degree, and had taken some basic courses at a local community college.
(Id. ¶ 6(b).) Claimant had worked for Employer since 1994, and as a bartender at
Xfinity Live since March 2012. (Id.) Mr. Young found Claimant to be very
personable. (Id.) Mr. Young did not agree with Mr. Dieckman’s labor market
survey as Mr. Young did not believe Claimant could perform the jobs Mr. Dieckman
identified as they were physically and vocationally unlike Claimant’s past positions.
(Id. ¶ 6(c), (h).) In Mr. Young’s opinion, it was impossible to conclude Claimant
was qualified for any of the identified positions without significant testing. (Id.
¶ 6(c).) Based on Claimant’s psychological problems, Mr. Young did not believe
Claimant should work in any security-type position. (Id. ¶ 6(d).) Because Claimant

8
Mr. Young’s deposition testimony can be found in the Reproduced Record at 204a
through 271a and is summarized by the WCJ in Finding of Fact 6.

8
did not use computers in past employment, Mr. Young thought Claimant was almost
computer illiterate. (Id. ¶ 6(d).) Mr. Young admitted that bartending is considered
a customer service position. (Id. ¶ 6(e).) Mr. Young understood Claimant was still
a member of the Teamsters, in good standing, although Claimant was not required
to pay dues, was not contributing toward his pension, and was not covered by the
Teamsters’ health insurance. (Id. ¶ 6(j).) Mr. Young did not know Claimant’s
seniority status with the Teamsters, although he understood that Claimant would
retain that status provided he returned to work for Employer, did not reach out to the
Teamsters or review the CBA, and relied on information provided by Claimant and
Claimant’s counsel. (Id. ¶ 6(f)-(g), (j).)
Dr. Weiss testified as follows.9 Dr. Weiss met with Claimant for two hours at
Claimant’s counsel’s request on November 19, 2018. (Id. ¶ 7 (b)-(c).) Dr. Weiss
reviewed Claimant’s medical records and obtained a history from Claimant. (Id.)
Based thereupon and his experience, Dr. Weiss opined Claimant suffered from
PTSD and explained how Claimant’s symptoms supported that diagnosis. (Id.
¶ 7(c)-(f), (m).) Dr. Weiss did not believe Claimant could return to work for
Employer because Claimant would be overwhelmed by anxiety because of the
PTSD. (Id. ¶ 7(i).) However, Dr. Weiss did believe it would be good for Claimant
to resume working; he did not feel qualified to opine as to the positions identified by
Mr. Dieckman. (Id. ¶ 7(k).)

9
Dr. Weiss’s deposition was marked as Exhibit C-4 and admitted without objection at the
May 14, 2020 hearing. (5/14/20 Hearing Transcript at 10, R.R. at 136a.) However, the WCJ
Decision, despite summarizing Dr. Weiss’s testimony in Finding of Fact 7, indicates the transcript
was not admitted. (See WCJ Decision at 2, table listing “Claimant/Employee Exhibits.”) The
transcript does not appear in the Certified Record.

9
Claimant also introduced a copy of the CBA between Sysco Philadelphia,
LLC, and the Teamsters.10 The CBA provided, among other things, that seniority
terminates upon resignation, retirement, discharge for cause, layoff exceeding 24
months, failure to report for 3 consecutive days when recalled, and absence due to
illness for 24 consecutive months. (Id. ¶ 8(d); see also R.R. at 312a.)
Based upon the evidence presented, the WCJ credited Claimant’s testimony
in part and rejected it in part. (FOF ¶ 9.) Specifically, the WCJ found Claimant’s
testimony about the work injury was uncontradicted. (Id. ¶ 9(a).) However, the
WCJ found Claimant’s testimony about being able to return to work was inconsistent
as Claimant initially testified he could not return to any type of work but later
testified he felt he could return to work in some capacity. (Id. ¶ 9(b).) The WCJ
further found Claimant’s testimony about the severity of his mental condition and
the nature and extent of his ongoing pain was inconsistent with the medical
testimony. (Id. ¶ 9(c)-(d).)
The WCJ credited both Dr. Schmidt’s and Dr. Fenichel’s testimony and
rejected Dr. Weiss’s opinions to the extent they conflicted with Dr. Fenichel’s
opinions. (Id. ¶¶ 10-12.) The WCJ also credited Mr. Dieckman’s testimony that the
jobs he identified were within Claimant’s vocational and physical requirements. (Id.
¶ 13.) The WCJ rejected Mr. Dieckman’s testimony that there were no light-duty
jobs available with Employer, explaining that there was no testimony from Employer
about the availability of light-duty jobs and while Ms. Easley was identified, Mr.
Dieckman did not know with which entity she was employed. (Id. ¶ 13(c).) In
addition, the WCJ rejected Mr. Young’s testimony to the extent it contradicted Mr.
Dieckman’s. (Id. ¶ 14.) In doing so, the WCJ explained Claimant’s testimony about

10
The CBA is Exhibit C-2, can be found in the Reproduced Record at 292a through 324a,
and is summarized by the WCJ in Finding of Fact 8.

10
completing two community college courses and having at least a basic understanding
of computers did not support Mr. Young’s opinion that Claimant was computer
illiterate. (Id. ¶ 14(a).) The WCJ also reasoned the credible vocational, medical,
and psychiatric evidence did not support Mr. Young’s opinion that Claimant was
incapable of any work. (Id. ¶ 14(b).) As for Mr. Young’s opinion that Claimant
would not be a reliable employee, the WCJ found that was “purely speculative in
nature.” (Id. ¶ 14(d).)
In summary, the WCJ found:

a. Claimant sustained a work-related injury on July 1, 2016, in the
nature of a leg contusion, lower left leg amputation[,] and an adjustment
disorder with mixed anxiety and depressed mood[;]
b. Claimant was capable of returning to work within the restrictions
imposed by Dr. Schmidt and Dr. Fenichel[;]
c. Employer failed to offer credible evidence that there were no
light[-]duty jobs available for [C]laimant at the time[-]of[-]injury
employer[; and]
d. Employer failed to meet its burden of proving there were no
light[-]duty jobs available at the time[-]of[-]injury employer.

(Id. ¶ 15; see also Conclusion of Law ¶ 2 (concluding Employer did not meet its
burden of proof on the Modification Petition).) Accordingly, the WCJ denied and
dismissed the Modification Petition. (WCJ Order.)

B. Appeal to Board
Claimant and Employer cross-appealed to the Board from the WCJ’s decision.
Relevant here, the Board rejected Claimant’s argument challenging Employer’s
standing, deeming it waived for failure to raise it on the record before the WCJ.

11
(Board Opinion (Op.) at 8.)11 The Board further concluded that Section 306(b)(2)
of the Workers’ Compensation Act (Act), 77 P.S. § 512(2),12 while requiring an
employer to offer a claimant an open position within the claimant’s restrictions,
“does not necessarily require proof of the absence of specific jobs with [an] employer
as a prerequisite to expert testimony of earning power.” (Board Op. at 3.) Quoting
Rosenberg v. Workers’ Compensation Appeal Board (Pike County), 942 A.2d 245,
251 (Pa. Cmwlth. 2008), the Board explained that “once the issue is raised with
evidence, satisfaction of this element of proof is a prerequisite to [the] employer’s
reliance on expert testimony of earning power.” (Board Op. at 10-11.) Here, the
Board determined “Claimant did not raise this issue in his testimony,” and “[t]he
Rosenberg court held that the claimant had the duty to place into the record prima
facie evidence that a position was available with the employer the claimant was
physically capable of performing,” and only “[o]nce the claimant did so [did] the
employer b[ear] the burden.” (Id. at 11 (citing Kleinhagen v. Workers’ Comp.
Appeal Bd. (KNIF Flexpak Corp.), 993 A.2d 1269 (Pa. Cmwlth. 2010)).) The Board
concluded:

In sum, a claimant may defend against a modification petition by
placing prima facie evidence into the record that a position was
available with the [employer] that he was physically capable of
performing before filing the modification petition. [] A[n employer]’s
burden to prove the lack of a vacancy suitable for a claimant is triggered
only after the claimant makes a prima facie showing that the vacancy
existed during the relevant timeframe. . . . Because Claimant did not
show a specific vacancy with [Employer] existed, it had no burden to

11
Claimant also argued to the Board “that the WCJ erred in not molding the description of
[the work] injury as per the evidence.” (Board Opinion at 2.) The Board also rejected this
argument. (Id. at 9.) Claimant, however, no longer asserts this issue.
12
Act of June 2, 1915, P.L. 736, as amended, added by Section 4 of the Act of June 24,
1996, P.L. 350.

12
prove its non-existence. . . . Given the circumstances, this was an
erroneous basis upon which to deny the Modification Petition.

(Board Op. at 11 (citations omitted).) Because the WCJ accepted Employer’s
evidence, the Board determined Employer established the existence of substantial
gainful employment within Claimant’s restrictions. (Id. at 11-12.)
To the extent Claimant asserted the positions were not available due to
Claimant’s union status, the Board noted that, in summarizing the evidence, the WCJ
found Claimant testified he was uncertain of his union status, but no determination
was made that Claimant would forfeit any qualitative benefit that would render the
identified positions unavailable under the law. (Id. at 12 n.4 (citing Newhouse v.
Workers’ Comp. Appeal Bd. (PJ Dick/Trumbull Corp.), 803 A.2d 828 (Pa. Cmwlth.
2002); Lowe v. Workers’ Comp. Appeal Bd. (Temple Univ. Hosp.) (Pa. Cmwlth., No.
1075 C.D. 2012, filed Jan. 16, 2013)).13) Accordingly, the Board reversed the WCJ’s
Decision denying the Modification Petition.
Claimant filed a timely Petition for Review with this Court. Claimant’s
arguments are two-fold. First, Claimant asserts the wrong employer was named in
the Modification Petition, and, therefore, the WCJ was without jurisdiction to
proceed. Second, Claimant argues Employer did not meet its burden of
demonstrating there were no specific job vacancies within Claimant’s restrictions,
particularly given Claimant’s union status. We address these issues in turn.

13
Unreported panel decisions of this Court may be cited for their persuasive value pursuant
to Rule 126(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P 126(b), and Section
414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).

13
II. DISCUSSION
A. Jurisdiction
1. Parties’ Arguments
Claimant asserts the Modification Petition should have been dismissed for
lack of subject matter jurisdiction as the wrong employer was named. Claimant
points out that Sysco Foods filed the Modification Petition, although Sysco
Philadelphia, LLC was the proper employer. Claimant argues counsel attempted to
substitute the correct employer, albeit after all the evidence was presented, but
claims “there was no recognition by the WCJ nor was there an [o]rder permitting the
substitution or a stipulation of the parties.” (Claimant’s Brief (Br.) at 17.)14 While
the Board concluded Claimant failed to raise the matter with the WCJ and, therefore,
waived the issue, Claimant argues subject matter jurisdiction cannot be waived.
Moreover, Claimant asserts that, “throughout the litigation” he raised “that the
named employer was a non-existent entity and therefore it did not have standing to
prosecute the [Modification P]etition.” (Id. at 6 n.1.) Claimant maintains the Board
based its conclusion “upon the WCJ’s failure to mention the issue . . . rather than an
examination of the record, which demonstrates that Claimant asserted and addressed
the legal issue in his [b]rief.” (Id.)
Employer argues Claimant did not previously challenge the ability of
Employer to litigate the Modification Petition and, therefore, it is waived. Employer

14
Claimant cites to an Interested Party Update Request Form, which Claimant includes in
the Reproduced Record at page 632a. The Interested Party Update Request Form is not part of the
Certified Record and, therefore, the Court cannot consider it. Indemnity Ins. Co. of N. Am. v.
Bureau of Workers’ Comp. Fee Rev. Hearing Off., 245 A.3d 1158, 1165 (Pa. Cmwlth. 2021) (“This
Court is confined to th[e] record, and it will not consider extra-record facts or evidence.”). To the
extent the document should have been included in the Certified Record, “it is the responsibility of
the [petitioner] to supply this Court with a complete record for purposes of review.” B.K. v. Dep’t
of Pub. Welfare, 36 A.3d 649, 657-58 (Pa. Cmwlth. 2012) (citation omitted).

14
argues the issue is one of standing, which Employer “clearly” has as the party
responsible for paying Claimant’s benefits. (Employer’s Br. at 43.)

2. Analysis
Preliminarily, Claimant asserts the issue of the wrong employer being named
is an issue of both standing and subject matter jurisdiction and appears to use those
terms interchangeably. However, standing and subject matter jurisdiction are two
very distinct concepts and the consequences of not raising them are vastly different.
Our Supreme Court has explained that, “[g]enerally, the doctrine of standing is an
inquiry into whether the petitioner filing suit has demonstrated aggrievement, by
establishing ‘a substantial, direct and immediate interest in the outcome of the
litigation.’” Robinson Township, Washington County v. Commonwealth of
Pennsylvania, 83 A.3d 901, 917 (Pa. 2013) (quoting Fumo v. City of Philadelphia,
972 A.2d 487, 496 (Pa. 2009)). “[T]he core concept of standing is that a person who
is not adversely affected in any way by the matter he seeks to challenge is not
aggrieved thereby and has no standing to obtain a judicial resolution of his
challenge.” Fumo, 972 A.2d at 496. Standing, like ripeness, is a question that goes
to whether an issue is justiciable. Ivy Hill Congregation of Jehovah’s Witnesses v.
Dep’t of Hum. Servs., 310 A.3d 742, 755 (Pa. 2024). On the other hand,
“[j]urisdiction relates solely to the competence of a particular court or administrative
body to determine controversies of the general class to which the case presented for
consideration belongs.” Id. Because standing is nonjurisdictional, it is waivable. In
re Condemnation by Urban Redevelopment Auth. of Pittsburgh, 913 A.2d 178, 181
n.6 (Pa. 2006). In contrast, “the question of [] subject matter jurisdiction . . . is

15
nonwaivable, and, indeed, our Court is empowered to raise the issue sua sponte.” In
re J.M.Y., 218 A.3d 404, 415 (Pa. 2019).
Here, there can be no reasonable dispute that the WCJ had subject matter
jurisdiction over the Modification Petition. As we explained in Overhead Door
Company of Lewistown, Inc. v. Workers’ Compensation Appeal Board (Gill), “[i]t is
clear under Pennsylvania law that the Act provides the sole means by which an
employee can recover from an employer or a named insurance carrier.” 819 A.2d
635, 638 (Pa. Cmwlth. 2003). See also Section 303 of the Act, 77 P.S. § 481
(providing the Act is the exclusive remedy for injured employees against their
employers). Moreover, Section 413 of the Act provides, in relevant part, that a WCJ
“may, at any time, review and modify or set aside a notice of compensation payable
and an original or supplemental agreement . . . .” 77 P.S. § 771. Thus, we reject
Claimant’s argument that the WCJ lacked subject matter jurisdiction and, therefore,
was without authority to act on the Modification Petition.
As to Claimant’s standing argument, we, like the Board, cannot discern where
Claimant raised this issue before the WCJ to preserve it for appellate review by the
Board and subsequently this Court. Claimant claims he raised the issue “throughout
the litigation,” but the only place Claimant specifically identifies as having raised
this issue before the WCJ is in Claimant’s brief to the WCJ. (Claimant’s Br. at 6
n.1.) However, those briefs are not part of the Certified Record, and it is Claimant’s
responsibility to ensure the record is complete. B.K. v. Dep’t of Pub. Welfare, 36
A.3d 649, 657-58 (Pa. Cmwlth. 2012). Moreover, having reviewed the transcripts
and filings, we found no record evidence of this issue having been raised in the
proceedings before the WCJ. Before this Court, Claimant relies on the CBA as
evidence that the proper employer should be Sysco Philadelphia, LLC. Claimant

16
introduced the CBA, but it does not appear from a review of the hearing transcript
at which the CBA was introduced, that the purpose for introducing the CBA was to
question the identity of the proper employer; rather, it was introduced to support
Claimant’s argument about job availability based on his union status. (See 1/23/20
Hearing Transcript at 10, R.R. at 113a (“This is part of the St. Joe’s [C]ontainer
argument we were making throughout the proceedings.”).) In short, because there
is no record evidence that Claimant properly preserved this issue in front of the WCJ
and because standing is nonjurisdictional, In re Condemnation by Urban
Redevelopment Auth. of Pittsburgh, 913 A.2d at 181 n.6, we agree with the Board
that the issue has been waived.15

B. Labor Market Survey
1. Parties’ Arguments
Claimant argues that under Section 306(b)(2) of the Act, an employer is
obligated to offer a specific job vacancy to a claimant if the claimant can perform it.
Claimant further argues an employer bears the burden of establishing job
availability. According to Claimant, the WCJ found Employer did not offer credible
evidence that there were no light-duty jobs available with Employer and,
accordingly, did not meet its burden. Claimant argues the WCJ found there was no

15
Even if the issue had not been waived, we note that Sysco Foods was identified as the
employer/defendant in the September 17, 2018 WCJ decision, which granted Claimant’s review
and modification petitions based upon the parties’ stipulation. (R.R. at 325a-31a.) In the parties’
stipulation that was approved and incorporated by the WCJ in that decision, Sysco Foods was
identified as the employer. (Id. at 329a.) In addition, during the litigation of the Modification
Petition, in response to Employer’s supersedeas request, Claimant submitted a statement
identifying his employer as Sysco Foods. (See R.R. at 160a (“I worked for Sysco Foods, since
June of 1994 . . . .”).) Thus, it is disingenuous of Claimant to accept Sysco Foods as the proper
employer when it is to his benefit but disavow Sysco Foods as the proper employer when it does
not.

17
evidence from Employer that would support the testimony of Mr. Dieckman that
Employer had no light-duty jobs available. Specifically, the WCJ found that while
Mr. Dieckman identified Ms. Easley as confirming this, Mr. Dieckman did not know
with which entity Ms. Easley was employed. Claimant asserts the Board’s reversal
of the WCJ’s decision constitutes an unlawful reweighing of the facts and credibility
determinations, which are outside the Board’s purview. Moreover, according to
Claimant, the WCJ found Claimant’s testimony relating to his union status credible.
Despite this, Claimant asserts the Board inaccurately concluded the WCJ did not
make any dispositive findings related to Claimant’s union status, and instead was
merely summarizing Claimant’s testimony regarding same. Claimant points to
Finding of Fact 6(i) for support that the WCJ did, in fact, find Claimant would be
negatively impacted by applying for the positions recommended by Mr. Dieckman.
Because Employer never submitted any evidence to show Claimant’s union status
was no longer valid, Claimant argues the WCJ’s conclusion that Employer did not
meet its burden was correct. Claimant asks the Court to vacate the Board’s order,
reinstate the WCJ’s decision, and remand the matter for the WCJ to consider the
reasonableness of the contest.
Employer responds that while Section 306(b)(2) provides, if an employer has
a specific job vacancy, it must offer it to the claimant, that Section “does not
necessarily require proof of the absence of specific jobs with [an] employer as a
prerequisite to expert testimony of earning power.” (Employer’s Br. at 32; see also
id. at 34-35.) Nor does the Act require an employer to prove no such position exists.
Employer asserts that Mr. Dieckman confirmed with Employer that no position was
available, testimony to which Claimant did not object, and the WCJ found Mr.
Dieckman credible. Even had Claimant objected to such testimony, Employer

18
asserts any hearsay would have been corroborated by other evidence, specifically
“the unrebutted medical opinion of Dr. Schmidt, and the psychiatric opinions of Dr.
Fenichel and Dr. Weiss.” (Id. at 34.) For instance, Employer argues that Dr. Weiss’s
testimony encouraging Claimant to return to work elsewhere “supported that there
would be no positions ‘available’ to Claimant at [Employer] from a psychiatric
perspective.” (Id.) Based on the evidence presented, Employer asserts it met its
burden of proving Claimant could return to work.
To the extent Claimant argues the positions identified were unavailable to
Claimant due to Claimant’s union status, Employer asserts there is no evidence to
support this. In particular, Employer points out that Claimant himself testified he
was uncertain of his union status except that it had been suspended. Employer
asserts it is clear from the CBA that seniority terminates for any employee absent
from work for at least 24 consecutive months, which Claimant has been. According
to Employer, Claimant also admitted he received a withdrawal card from the union,
his union benefits, including receipt of health insurance and accrual of pension
benefits, ceased, and he has not paid union dues. Moreover, Employer points out
that prior to the work injury, Claimant did work a non-union position as a bartender
and even testified he considered returning there. Employer asks that the Board’s
Order be affirmed.

2. Analysis
Pursuant to Section 306(b)(2) of the Act, if a claimant receiving WC benefits
can participate in substantial gainful employment and “the employer has a specific
job vacancy the [claimant] is capable of performing, the employer shall offer such
job to the [claimant].” 77 P.S. § 512(2) (emphasis added); see also 34 Pa. Code §

19
123.301(a). L&I regulations provide that an employer can satisfy this duty by
showing:

(1) The employee was notified of a job vacancy and failed to respond.

(2) A specific job vacancy was offered to the employee, which the
employee refused.

(3) The employer offered a modified job to the employee, which the
employee refused.

(4) No job vacancy exists within the usual employment area.

34 Pa. Code § 123.301(c). The regulation further provides:

If the employer has presented evidence that no job vacancy exists, the
employee may rebut the employer’s evidence by demonstrating facts
which may include the following:

(1) During the period in which the employer has or had a duty to
offer a specific job, the employer is or was actively recruiting for a
specific job vacancy that the employee is capable of performing.

(2) During the period in which the employer has or had a duty to
offer a specific job, the employer posted or announced the existence of
a specific job vacancy, that the employee is capable of performing,
which the employer intends to fill.

34 Pa. Code § 123.301(f).
The Act and applicable regulations are silent as to whether the burden of proof
in a modification petition first lies with an employer to prove the nonexistence of an
available in-house job suitable for the claimant, or with the claimant to prove the
employer does have such a job. We resolved that issue in Rosenberg. There, the
claimant provided uncontradicted evidence that a specific job within her capabilities
existed with the employer after the claimant received a notice of ability to return to

20
work and before the employer filed its modification petition. Specifically, the
claimant actually worked for the employer in a light-duty position until the employer
terminated the claimant, stating it did not have a provision for permanent light-duty
work. The employer subsequently hired a new employee to fill the position in which
the claimant had been working. We stated while the Act was silent as to the
presentation of evidence, we were “mindful that the burden of proof may be placed
on a party who must prove existence of a fact rather than on a party who must prove
its non-existence.” Rosenberg, 942 A.2d at 251. This Court held that “once the
issue is raised by evidence of a possible opening with employer, the employer has
the burden of proof.” Id. (emphasis added). Because the claimant in Rosenberg
provided evidence that a suitable job with her employer was available, the Court
found that the burden had shifted to the employer to prove that no such job existed
and remanded the case accordingly. Id. at 252.
We reiterated this holding in Reichert v. Workers’ Compensation Appeal
Board (Dollar Tree Stores), wherein we summarized the holding in Rosenberg as
follows:

[A]n employer does not have the burden to prove the non-existence of
available work at its own facility as a necessary element of the
modification petition. Rather, a claimant may present evidence that
‘[d]uring the period in which the employer . . . had a duty to offer a
specific job,’ the employer had a specific job vacancy that it intended
to fill that the claimant was capable of performing. The burden then
shifts to the employer to rebut the claimant’s evidence.

80 A.3d 824, 829-30 (Pa. Cmwlth. 2013) (emphasis in original) (citations and
quotation marks omitted). In that case, we found the claimant did not present
evidence that the employer was actively recruiting for a specific job vacancy or that
the employer had posted the existence of a specific vacancy. Id. at 830. The only

21
evidence of job vacancies was presented by the claimant’s vocational expert, who
testified that employer was recruiting for various positions through its website.
However, his testimony was not credited by the WCJ because the vocational expert
visited the website after the modification petition was filed. Id.
Claimant, here, presented no evidence of a specific job opening with
Employer between the filing of the Notice of Ability to Return to Work and
Employer’s Modification Petition. Claimant did not even suggest this was the case
or testify that he believed this to be so. Absent some evidence that an employer has
an open and available position within the claimant’s work restrictions, an employer
does not need to prove it does not have such a position available. Reichert, 80 A.3d
at 829-30; Rosenberg, 942 A.2d at 251. Therefore, that the WCJ did not credit Mr.
Dieckman’s testimony that Ms. Easley told him there were no openings with
Employer because it was unclear for which Sysco entity Ms. Easley was employed
is of no moment because Employer had no burden of showing no such position
existed based upon Rosenberg and Reichert. Thus, the Board was correct in its
holding reversing the WCJ on this ground.
Finally, to the extent Claimant argues the positions in the labor market survey
were not “available” because they would result in him forfeiting union benefits,
which is contrary to the Supreme Court’s holding in St. Joe Container, we again
disagree.
In St. Joe Container, the claimant, a union member, suffered a work-related
injury and the employer subsequently offered the claimant a non-union position
within the claimant’s physical limitations. 633 A.2d at 129. The claimant refused
the position, asserting he would lose his union benefits if he accepted a non-union
position for more than six months. Id. The employer sought to modify the

22
claimant’s benefits based on the refused job offer, which a referee16 granted
concluding the claimant’s refusal was unreasonable because the employer offered to
return the claimant to union status if the claimant was dissatisfied after six months.
Id. The Board reversed in part, concluding the claimant should only be limited to
partial disability benefits for the first six months and then returned to total disability
benefits thereafter, and we affirmed. Id. The Supreme Court, on appeal, explained:

Given “the salutary purpose of work[ers]’ compensation to provide
relief due to injuries caused in the workplace,” [] and the ultimate goal
of making the injured employee whole, we believe that the extent of the
injury caused in the workplace may reasonably include the loss of
qualitative benefits associated with the claimant’s former position
under certain limited circumstances.

Id. at 130 (quoting Kachinski v. Workmen’s Comp. Appeal Bd. (Vepco Constr. Co.),
532 A.2d 374, 379 (Pa. 1987)). The Supreme Court held that the loss of union
benefits would be one such circumstance, reasoning that while there, the claimant
would not lose vacation, retirement, or health and life insurance benefits that the
employer promised to maintain in the non-union position, the claimant would still
lose other “protection and benefits provided by the union contract,” such as seniority,
overtime, and bidding rights, to name a few. Id. at 131. The Supreme Court
reasoned that “[a]ll other things being essentially equal, this is a clearly definable
qualitative loss simply not recouped through [the] acceptance of the [non-union]
position.” Id. As a result, the Supreme Court held the non-union position was not
“available” for modification purposes.17 Id.

16
WCJs were formerly known as referees.
17
Because the employer had promised to reinstate the claimant’s union status after six
months had the claimant accepted and disliked the nonunion position, the Supreme Court affirmed
this Court’s decision finding the refusal was unreasonable for that period. St. Joe Container, 633
A.2d at 132.

23
This Court applied the St. Joe Container reasoning in Newhouse, 803 A.2d
828. There, the claimant, a heavy equipment operator, suffered a work injury, and
was eventually offered a modified-duty position with the employer. Id. at 830. A
WCJ granted the employer’s suspension petition, which the Board affirmed. Id. The
claimant argued the Board erred as the modified-duty position was a non-union
position, and “as a matter of law,” under the precedent, such a position was not
considered an “available” position to a union member because of the loss of union
benefits. Id. at 831. This Court rejected the claimant’s argument that St. Joe
Container created a “bright[-]line test,” explaining that “we specifically adopted a
‘subjective analysis of the entire array of benefits available through union
membership when assessing the availability of a non-union position to a unionized
claimant. . . .’” Id. (quoting ABF Freight Sys., Inc. v. Workers’ Comp. Appeal Bd.
(Iten), 744 A.2d 348, 352 (Pa. Cmwlth. 2000)). Because the claimant in Newhouse
“failed to cite to any evidence of record showing that [the c]laimant would lose any
union benefit or status, or would be harmed in any way whatsoever by accepting the
non-union position,” we concluded the Board did not err. Id.
In the instant matter, Claimant testified he received a withdrawal card from
the Teamsters because he was not working and while he thought the card might
protect his seniority, he was not sure. (FOF ¶ 1(b)-(c).) Claimant admitted he had
not paid union dues since he was injured, was not accruing pension benefits, and was
not covered by Teamsters’ health insurance, or receiving other union benefits. (Id.
¶ 1(b).) Claimant contends the Board wrongly concluded the WCJ did not make any
dispositive findings about Claimant’s union status, pointing to Finding of Fact 6(i)
as evidence that the WCJ did. Finding of Fact 6(i) states “Claimant did not apply
for any of the jobs Mr. Dieckman found as none of them are represented by the

24
Teamsters’ Union. These positions would have a negative impact on his union
membership benefits.” (FOF ¶ 6(i).) However, this Finding of Fact, is merely
summarizing the testimony of Mr. Young, who also admitted he did not know
Claimant’s seniority status as he had not contacted the Teamsters or reviewed the
CBA and, instead, was relying on information provided to him by Claimant and
Claimant’s counsel. (Id. ¶ 6(f)-(g), (j).) Further, the WCJ did not credit Mr. Young’s
testimony. (Id. ¶ 14.) In addition, the WCJ, in reviewing the CBA, found seniority
would have terminated in the event of 24 consecutive months of absence. (Id. ¶
8(d).) Thus, similar to the claimant in Newhouse, Claimant here did not cite any
evidence he would lose any union benefits or status, and “Claimant’s failure to
produce or enter any such evidence results in a failure to establish the non-union
position[s identified in the labor market survey] as unavailable.” Newhouse, 803
A.2d at 831. See also Washington v. Workers’ Comp. Appeal Bd. (US Airways, Inc.)
(Pa. Cmwlth., No. 2368 C.D. 2011, filed June 1, 2012), slip op. at 7 (“It was [the
c]laimant’s burden . . . to show that the jobs identified in the labor market survey
would cause h[im] to lose union status or benefits.”)

III. CONCLUSION
Based on the foregoing reasons, we conclude the Board did not err in reversing
the Decision of the WCJ and, accordingly, affirm.

RENÉE COHN JUBELIRER, President Judge

25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

George B. Thomas, :
Petitioner :
:
v. : No. 1414 C.D. 2021
:
Sysco Foods (Workers’ Compensation :
Appeal Board), :
Respondent :

ORDER

NOW, April 26, 2024, the Order of Workers’ Compensation Appeal Board,
dated November 22, 2021, is AFFIRMED.

RENÉE COHN JUBELIRER, President Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9963919. Public record. Not legal advice.