IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Ayers, : Petitioner :

: v. : No. 1056 C.D. 2018
: Submitted: December 7, 2018 Workers' Compensation Appeal : Board (General Dynamics), : Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE SIMPSON FILED: March 22, 2019

Michael Ayers (Claimant) petitions for review from an order of the Workers’ Compensation Appeal Board (Board) that affirmed an order of a Workers’ Compensation Judge (WCJ) granting the modification petition General Dynamics (Employer) filed based on a labor market survey (LMS). Claimant a rgue s the Board erred in affirming the WCJ because he applied for the suitable jobs listed in the LMS in good faith. He further conten ds Employer did not establish the non

- existence of a position within his restrictions when it obtained the LMS as is legally required

. He also assigns error in that the Board did not consider after

- acquired evidence showing Employer had vacancies for light

- duty work

. Upon review, we affirm.

I. Background Starting in 1999 and until his work injury in November 2009 , Claimant
worked for Employer in a heavy

- duty capacity in a union position

. The accepted2

injury was a herniated disc in the cervical spine at C6

- 7 , for which Claimant underwent decompression and fusion surgery in 2010. Claimant returned to work for Employer in 2011 as a light

- duty mechanic until his lay off in Jul y 2014. His average weekly wage was $1,335.59, for a compensation rate of $836.00.

Following an inde pende nt medical examination (IME) , Claimant received a notice of ability to return to work dated December 1, 2015. Employer engaged
vocational e xpert Joseph O’Conner (Vocational Expert) to perform an LMS.

I n April 2016, Employer filed a modification petition based on the positions identified in the LMS. Claimant denied the allegations in the modification petition , and the matter was assigned to a WCJ.

The WCJ conducted two hearings. Employer submitte d the deposition

t estimony of Vocational Expert and the deposition testimony of Thomas Allardyce, M.D., a board

- certified orthopedic surgeon (Employer’s Medical Expert) , who
conducted the IME

. In addition to testifying on his own behalf , Claimant presented the testimony of Suzanne Jones, Employer’s Director of Human Resources (HR Director). He also submit ted the deposition testimony of his orthopedic surgeon, Dr. Alan Gillick (Treating Phy sician)

.

Employer’s Medical Expert conducted IMEs of Claimant in September 2014 and October 2015. Based on his examinations, he opined that Claimant fully recovered from his work injury and could return to heavy

- duty work without
restrictions. As a res ult, he approved all the position s identified in the LMS

.3 Vocational Expert testified regarding the LMS , in which h e identified eight positions as follows: (1) s ecurity o fficer with Securitas Security Services,
medium

- duty ( $400 /

week ) ; (2) d ispatcher for Falzone’s Towing Services
, sedentary to light

- dut y ( $400 / week ) ; (3) l oss p revention o fficer for Gerrity’s Supermarket , light
to medium

- duty ( $400 / week ) ; (4) s ecurity g uard for BCM Solutions, medium

- duty ($296

- 39 4/week); (5) l oader/ u nloader wi th Cintas, a heavy

- duty job ($400

- 480/week); ( 6 ) w arehouse s e le ctor for Capstone Logistics, a heavy

- duty job ( $524

- 760 / week ) ; ( 7 ) m anufacturing a ssociate with McCarthy Tire Service, a heavy

- duty job ($380

- 400/week); and ( 8 ) w arehouse w orker for Valmont Industries, a lso heavy

duty ( $400

- 480 / week )

. In preparing the LMS, Vocational Expert relied on Employer’s Medical Expert’s opinion that Claimant had no physical restrictions.

Vocational Expert confirm ed all the jobs were available when he prepared the LMS and for at least a week afterwards. He testified the Falzone’s Towing position was not filled until May, and the Gerrity’s Supermarket position was open until June

. Employer also submitted a signed confirm ation that i t lacked a specific vacancy , and “there continues to be no work available at [Employer] which can be made available and/or offered to [Claimant] from the date of [10/19/15] until the current date[,] [9/28/16].” Reproduced Record ( R.R. ) at 214a.

Treating Physician performed Claimant ’s neck surgery in 2010, and
continues to treat him biannual ly . He opined that Claimant had a partial recovery as he continues to suffer arm weakness, particularly in the left arm. As a result, Treating Physician imposed a 20

- pound lifting restriction and o nly released Claimant to perform sedentary or light

- duty work because he remains at risk for4

more deterioration. He opined that Claimant could not perform the heavy

- duty jobs identified in the LMS ( Cintas, Capstone Logistics, McCarthy Tire Services and
Va lmont Industries ) . H owever, Treating Physician opined Claimant would be able

to perform the security positions with Gerrity’s Supermarket, BCM Solutions and Securitas as long as he was not at risk of an altercation. He also opined Claimant could perform the position at Falzone’s Towing.

Claimant testified regarding his capabilitie s and his efforts in obtaining employment. He was attending a university online, expecting to graduate in 2017 with a bachelor’s degree in information technology. Claimant r eceived noti ce of the available positions set forth in the LMS on April 12, 2016

. However, he did not apply
until three weeks later. On May 4, h e applied for the four light

- duty jobs : (1) Gerrity’s Supermarket; (2) BCM S olutions ; (3) Securitas; and (4) Falzone’s Towing

.

W hen he applied for these four positions , Claimant undermined his
efforts by inform ing potential employers that he was referred by workers’ compensation a nd returning from full disability. He also advised h e was unable to start until more than six weeks later, on June 20th , because he had a pre

- planned
vacation. Claimant did not receive any requests for interviews or job offers.
Claimant admitted h e d i d not apply for any j o bs outside the LMS despite a rele ase by Treating Physician to return to work in a light

- duty capacity

. Claimant also acknowledg ed he was un aware of whether Employer had any light

- duty job
vacancie s. See WCJ ’s Op., 5/10/17, Finding of Fact (F.F.) No. 6.f.5 Subsequently , Claimant requested to depose HR Director regarding vacancies with Employer and recalls for positions within his physical restrictions. The WCJ allowed submission of her testimony by deposition

. HR D irector testified
about the layoff and job

- bidding pro cess ; she explained that , given his seniority, Claimant could have bid for a mechanic position instead of taking the voluntary layoff in 2014. She advised she was unaware whether jobs wi th Employer existed
between his notice of return to work in December 2015, and the LMS in April 2016

. She was also unsure whether mechanics were recalled to work after the layoff

.

Based on the evidence submitted , t he WCJ granted the modification petition. He determined Claimant ’s application efforts did not refute Employ er’s expert evidence of his earning power through suitable jobs identified in the LMS.

The WCJ credited Treating Physician ’s opinion over the opinion of Employer’s Medical Expert. Based on the credited medical testimony, the WCJ found Claimant was only capable of performing the four light

- duty positions the LMS
id entified : Gerrity’s Supermarket ; BCM Solutions ; Securitas ; and Falzone’s Towing

. The WCJ emphasize d Claimant a gree d he was able to perform these four position s , finding them medically and vocationally suitable

. The WCJ credited Vocational Expert ’s testimony that all four positions were open and available as of April 12, 2016

.

Despite the fact that Claimant received no job offers, the WCJ found the positions o pen and available. The WCJ faulted Claimant for his delay in applying for these jobs weeks after receiving notice of them. Further, when Claimant applied,
he advised potential employers he was referred by workers’ compensation, a nd he6

listed a start date that was almost six weeks later. Accordingly, the WCJ found Claimant did not rebut Employer’s expert evidence of Claimant’s earning power. The WCJ also emphasized that Claimant did not attempt to find any employment on
his own since 2014

.

In additio n, the WCJ noted the lack of evidence showing that Employer posted, announced or recruited for a specific position within Claimant’s restrictions.
T he WCJ credited HR Director ’s testimony that she did not know of any job vacancies with Employer that fell within Claimant’s restrictions. Claimant testified
he had no knowledge of any specific job vacancies , and he admitted ly did not contact Employer regarding open positions after his layoff . Thus, Claimant presented no prima facie evidence showing Employer had a specific vacancy he could fill . As a result, the WCJ concluded “the burden never shifted to Employer to establish the non

existence of a specific job vacancy. ” WCJ Op., Conclusion of Law (C.L.) No. 6.

Based on the four suitable , available posi tions , the WCJ found Claimant had an earning capacity of $400 a week, or $10 per hour assuming a 40

- hour week.
F.F. No. 14. He modified Claimant’s benefit s accordingly , as of April 12, 2016. Claimant appealed to the Board.

Claimant asserts that t wo months after the WCJ’s decision, he received a copy of a “Recall List” from the union, indicating the recall of other union employees with less seniority for light

- duty jobs with Employer . Pet’r’s Br. at 7. On appeal to the Board, Claimant submitt ed a copy of the Recall List to support his argument that Employer had a suitable vacancy before obtaining the LMS.7 The Board affirmed the WCJ without considering the Recall List. See Bd. Op., 7/13/18. As to the burden of pr oving a specific job vacancy with Employer , i t reasoned that Claimant failed to submit evidence that Employer had a specific

vacancy within his restrictions to shift the burden to Employer to prove its non

existence

. As to the burden of proving the availability of positions identified in the
LMS , the Board concluded Employer established the four suitable positions were available and demonstrated Claimant’s earning capacity. It emphasized the WCJ

was permitted , as fact

- finder, to d iscern a lack of good faith in Claimant’s application
effort s

.

Claimant now petitions for review.

II. Discussion On appeal, 1 Claimant argues the Board erred in affirming the WCJ because Employer did not prove it had “no job availability” within his restrictions.
Pet’r’s Br. at 5. He maintains the Re call List constitutes after

- acquired evidence showing Employer had vacancies for light

- duty positions that should have been
offered to him. Claimant also contends the jobs identified in the LMS were not truly
available b ecause he appli ed for the four suit able jobs and he did not receive any
offers or other follow

- up.

1 Our review in a workers’ compensation appeal is limited to determining whether substantial evidence supported the WCJ’s findings of fact, whether the WCJ committed an error of law, o r whether the WCJ ’s decision violated constitutional rights. Grimm v. Workers’ Comp. Appeal Bd. (Fed. Express Corp.) , 176 A.3d 1045 (Pa. Cmwlth.) ( en banc ), appeal denied , 189 A.3d 385 (Pa. 2018).8 Pursuant to Section 413(a) of the Workers’ Compensation Act (Act) , 2 a WCJ may modify a claimant ’s benefits when the claimant’ s disability decreased. 77 P.S. §772. To support a modification petition , an employer “must show that a
claimant ’ s ‘disability has ended or has been reduced[,] and that work is available to the claimant and the claimant is capable of doing such work. ’” Burrell v. Workers ’ Comp. Appeal Bd. (Phil a. Gas Works & Compservices, Inc.) , 849 A.2d 1282, 1287 (Pa. Cmwlth. 2004) (citation omitted)

. In this context, “ disability ” means the “loss of earning power caused by the work injury.” Phoenixville Hosp. v. Workers ’ Comp. Appeal Bd. (Shoap) , 81 A.3d 830 , 841 (Pa. 2013).

Under Section 306(b)(2) of the Act , 3 77 P.S. §512(2), “an employer may seek modification of a claimant’s benefits by either[:] [(1)] offering the claimant a specific job that it has available that [s]he is capable of performing [;] or [2] establishing earning power through expert opinion evidence.” Kleinhagan v.
Workers ’ Comp

. Appeal Bd

. (KNIF Flexpak Corp.) , 993 A.2d 1269, 1275 (Pa. Cmwlth. 2010) (emphasis added) (internal quotation marks omitted).

Claimant contends that Employer failed to meet either legal criterion for a modification petition. He argues Employer had the duty to establish it lacked any suitable positions internally prior to obtaining an LMS. He claims Employer had light

- duty jobs available, but did not offer them to Claimant , and thus violated
the Act

. Claimant also asserts Employer did not meet its burden of proving the jobs
in the LMS were open and available to him.

2 Act of June 2, 1915, P.L. 736, as amended , 77 P.S. §§1

- 1 041.4, 2501

- 2710

.

3 Added by the Act of June 24, 1996, P.L. 350.9 A

. S pecific Vacancy First, we consider Claimant’s contention that Employer had a duty to prove the non

- existence of a job vacancy within his physical restrictions. In support,
he cites 34 Pa. Code § 123.301. In pertinent part, it states: “ if a specific job vacancy
exists ... with the liable employer, which the empl oyee is capable of performing, the employer shall offer that job to the employee prior to seeking a modification ... of benefits based on earning power.” Id. (emphasis added). Claimant focuses on Employer’s duty to offer him a suitable job without regard t o the prerequisite of a “specific job vacancy

. ” I d.

1. Burden of Proof

This Court recently clarifie d wh ich party bears the burden of proving an employer ha d a suitable vacancy in Brozman v. Workers’ Comp ensation Appeal
Board (Commonwealth) (Pa. Cmwlth ., No. 1697 C.D. 2016, filed October 5, 2017) (unreported), 2017 WL 4413135. 4 There, the claimant contended her employer b o r e the burden of proving it had no available work internally before obtaining a labor market survey. We disagreed, emphasizing that the burden t o prove non

- existence of a position only arises after a claimant identifies and establishes the existence of a specific suitable position. Analyzing an employer’s burden under Section 306(b)(2)
of the Act , t his Court explained “that the burde n 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 v. Wo rkers’ Comp. Appeal Bd. (Pike C ty.) , 942 A.2d 245, 251 (Pa. Cmwlth. 2008) ( en banc ).

4 Pursuant to this Court ’s Internal Operating Procedure 414, 210 Pa. Code §69.414, this unreported panel decision post

- dating January 15, 2008, may be cited for its persuasive value.10 Contrary to Claimant’s assumption, Section 306(b)(2) of the Act does not require an e mployer to offer a claimant a position. Written in the disjunctive,
the section directs an employer to offer an available, suitable position to a claimant, only if such a position exists. Brozman

.

Relevant here, a claimant may defend against a modification petition by placing prima facie evidence into the record “that a position was available with employer that he was physically capable of performing” before filing the modification petition. Kleinhagan , 993 A.2d at 1275. The relevant timeframe for existence of a suitable vacancy is between the notice of ability to return to work and
the filing of a modification petition. An employer’s burden to prove the lack of a

va cancy suitable for a claimant is triggered only after the claimant makes a prima facie showing that the vacancy existed during the relevant timeframe. Id. ; see Reichert v. W orkers’ C omp

. A ppeal Bd . (Dollar Tree Stores/Dollar Express & Specialty Risk Servs

. , Inc.) , 80 A.3d 824 (Pa. Cmwlth. 2013).

Here, Claimant received the notice of ability to return to work on December 1, 2015 and the modification petition was filed on April 16, 2016. Thus,
it was incumbent on Claimant to submit prima facie evidence of availability of a light

- duty vocationally suitable position with Employer during that timeframe. Id.

During the WCJ proceedings, Claimant s ubmit ted no evidence of a specific vacancy with Employer . Indeed, he admitted he was unaware of suit able job s wi th Employer. F.F. No. 6.f; R.R. at 481 a. HR Director was also uncertain whether Employer had any available positions within Claimant’s restr i ctions. R.R. at 345 a.11 The WCJ did not err in holding Claimant lacked prima facie evidence of a vacancy so as to trigger Employer’s burden of proof. Because C laimant did not show a specific vacancy with Employer existed, Employer had no burden to prove
its non

- existence. Reichert ; Kleinhagan ; Rosenberg

. Therefore, we discern no meri t in Claimant’s contention that Employer violated the Act by failing to offer a light

duty position to Claimant.

2. Recall List

We also reject Claimant’s contention that the Recall List constitutes
after

- acquired evidence warranting a remand. He argue s the Recall List demonstrates Employer had a suitable job vacancy triggering a legal obligation to offer the position to Claimant.

First, we are troubled by the timing. Claimant represents he acquired the Recall List only after the WCJ issued his decision modifying his benefits. Significantly, Claimant does not explain why the Recall List was unavailable during the WCJ proceedings. Nor does Claimant indicate any attempts to obtain such a list
from the union before the record closed.

Second, it is not clear that the Recall List establishes the existence of specific vacancies within Claimant’s medical and vocational restrictions. The Recall List, signed by uni on representatives, lists names and dates , stating “Recalled to Light Duty.” R.R. at 99a. Importantly, the Recall L ist does not describe the positions, so it
is not evident that they are vocationally suitable for Claimant . Also, the list contains only one recall (on 2/22/16) within the relevant timefra me (12/1/15 to 4/12/16).12 Further, Claimant does not draw this Court’s attention to a request to

re

- open the record before the WCJ or for a rehearing. 5 To warrant a rehearing, there must be some showing that the after

- acquired evidence was previously un available.
Paxos v. Work m e n’ s Comp. Appeal Bd. (Frankford

- Quaker Grocery ) , 631 A.2d 826, (Pa. Cmwlth. 1993). A rehearing shall “not be granted to permit a party to strengthen weak proofs already presented.” Id. at 831. Moreover, the party seeking rehear ing

must establish the new evidence is necessary to obtain a just result. Keith v.
W orkers’ C omp

. A ppeal B d . (SEPTA) (Pa. Cmwlth., No. 591 C.D. 2015, filed Jan. 19, 2016) (unreported), 2016 WL 224041.

We are unpersuaded that inclusion of the Recall List in the record would have affected the outcome. Thus, we discern no basis for a rehearing here.

B. Availability Next, we assess whether the Board erred in concluding that Employer established Claimant’s earning capacit y by proving the suitable jobs identified in the LMS were open and available. There is no dispute that four of the jobs listed in the LMS were both medically and vocationally suitable. Thus, our analysis focuses on Claimant’s contention that the four job s the WCJ found within his capabilities, as approved by his Treating Physician, were not “available” based on decisional law refining the meaning of that term. Shoap , 81 A.3d at 843.

5 Claimant could have requested a rehearing based on newly discovered evidence under Section 426 of the Act, 77 P.S. §871. Although Claimant submitted the Recall List with his appeal to the Board, th at did not c u re the deficiency in the record. The Board could not consider t he Recall List because it wa s not the fact

- finder. Bey v. Workers’ Comp. Appeal Bd. (Ford Elec.)
, 801 A.2d 661 (Pa. Cmwlth. 2002). Additionally, this Court may not accept evidence that is not part of the certified record considered by the WCJ. Id.13 Jobs identified in the LMS must be “actually open and potentially

ava ilable.” Shoap , 81 A.3d at 843. To qualify as “available,” the positions identified in the LMS as proof of a claimant’s earning power must “remain open until such
time as the claimant is afforded a reasonable opportunity to apply for them.” Valenta
v. W orkers’ Comp. Appeal Bd. (Abington Manor Nursing Home & Rehab & Liberty Ins. Co.) , 176 A.3d 374 , 385 (Pa. Cmwlth. 2017) (emphasis added)

.

This Court recently confirmed an employer bears the burden of proving the continued availability of jobs. Smith v. Workers’ Comp

. Appeal B d. (Supervalu Holdings PA, LLC) , 177 A.3d 394 (Pa. Cmwlth. 2018) ( en banc ). When a claimant offers evidence regarding his pursuit of jobs, that may be considered when assessing their availability

. Evidence that a claimant was u n successful in his applications does not mandate a finding that the positions were not open and available. Valenta

. Rather, while e vidence regarding a claimant’s effort s to procure one of the identified jobs is relevant to rebutting the positions as proof of claimant’s earning power
, such
evidence is “not dispositive of the earning power inquiry.” Shoap , 81 A.3d at 846.

Here, the record establishes that the four light

- duty positions identified in the LMS were open and available for at least three weeks after the date Claimant received notice of them. Vocational Expert testified the Falzone’s Towing position

was open until it was filled internally in May, and the Gerrity’s Supermarket position

was open until June. R.R. at 191 a

- 97a

. Claimant’s testimony corroborates Employer’s evidence regarding availability. Id. at 452a

- 57a. W hen Claimant applied in

- person for three of the positions in early May , he confirmed the positions were still open. 6

6 After visiting the office in person, Claimant applied for the Securitas position online, and received no follow

- up communication. Reproduced Record at 454a.14 Unlike the claimant in Shoap , who learned the positions wer e filled when she applied for them, the record here shows the suitable positions were open when Claimant applied for them. Thus, Claimant had at least three week s to apply for these positions. This more than three

- week timeframe afforded Claimant a

reaso nable opportunity to apply for these positions. Valenta

.

In considering whether Employer established continued availability of identified positions, the WCJ examined Claimant’s unsuccessful application efforts. In so doing , the WCJ found that despite h is application to the four suitable jobs,
Claimant did not make a good faith effort to be employed. Not ing hi s actions fell
short of “bad faith or sabotage, ” the WCJ found that the timing of and circumstances surrounding Claimant’ s efforts undermined their good faith. F.F. No. 11. Specifically, t he WCJ cited Claimant’ s: (1) unexplained delay in applying for the jobs more than t hree weeks after receiving notice of the openings ; (2) delayed start
date of six weeks after his already delayed applications ; and (3) in

- person comments to prospective employers that he was referred by workers ’ compensation

. Id. ; R.R.

at 450a

- 57 a , 465a ; see also C.L. No. 5. Further, the WCJ underscore d that Claimant did not apply f

o r any jobs other than those in the LMS since his layoff in 2014 despite his ability to perform light

- duty work

. F.F. No s

. 6.e., 12, 13 ; R.R. at 467a

.

The WCJ , who evaluated Claimant’s live testimony, found that his unsuccessful application efforts did not refute Employer’s evidence regarding the continued availability of the positions in the LMS. As the fact

- finder, the WCJ has exclusive province over questio ns of credibility and evidentiary weight. Hutz v. Workers’ Comp. Appeal Bd. (City of Phila.) , 147 A.3d 35 (Pa. Cmwlth. 2016).15

Discerning no error below, and “view[ ing ] the evidence in the light most favorable to [Employer,] the prevailing party , ” id. at 54, we conclude Employer met its burden of proof under Shoap and its progeny. Smith ; Valenta

.

III. Conclusion For the foregoing reasons, we affirm the Board’s order.

ROBERT SIMPSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Ayers, : Petitioner :

: v. : No. 1056 C.D. 2018
: Workers' Compensation Appeal : Board (General Dynamics), : Respondent :

O R D E R

AND NOW , this 22 nd day of March , 201 9 , the order of the Workers’ Compensation Appeal Board is AFFIRMED

.

ROBERT SIMPSON, Judge