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 argues the Board 

erred in affirming the WCJ because he applied for the suitable jobs listed in the LMS

in good faith. He further contends 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 accepted 
2

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 layoff in July 2014. His 

average weekly wage was $1,335.59, for a compensation rate of $836.00. 

Following an independent medical examination (IME), Claimant received 

a notice of ability to return to work dated December 1, 2015. Employer engaged 

vocational expert Joseph O’Conner (Vocational Expert) to perform an LMS. 

In 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 submitted the deposition 

testimony 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 submitted the deposition testimony of his orthopedic surgeon, Dr. 

Alan Gillick (Treating Physician).

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 result, he approved all the positions identified in the LMS.
3

Vocational Expert testified regarding the LMS, in which he identified 

eight positions as follows: (1) security officer with Securitas Security Services, 

medium-duty ($400/week); (2) dispatcher for Falzone’s Towing Services, sedentary 

to light-duty ($400/week); (3) loss prevention officer for Gerrity’s Supermarket, light 

to medium-duty ($400/week); (4) security guard for BCM Solutions, medium-duty 

($296-394/week); (5) loader/unloader with Cintas, a heavy-duty job ($400-

480/week); (6) warehouse selector for Capstone Logistics, a heavy-duty job ($524-

760/week); (7) manufacturing associate with McCarthy Tire Service, a heavy-duty 

job ($380-400/week); and (8) warehouse worker for Valmont Industries, also heavyduty ($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 confirmed 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 confirmation that it 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 biannually. 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 only released 

Claimant to perform sedentary or light-duty work because he remains at risk for 
4

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

identified in the LMS (Cintas, Capstone Logistics, McCarthy Tire Services and 

Valmont Industries). However, 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 capabilities 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 received notice 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, he applied for the four light-duty jobs: (1) Gerrity’s 

Supermarket; (2) BCM Solutions; (3) Securitas; and (4) Falzone’s Towing. 

When he applied for these four positions, Claimant undermined his 

efforts by informing potential employers that he was referred by workers’ 

compensation and returning from full disability. He also advised he 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 he did not apply for any jobs outside the LMS despite a release 

by Treating Physician to return to work in a light-duty capacity. Claimant also

acknowledged he was unaware of whether Employer had any light-duty job

vacancies. 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 Director testified 

about the layoff and job-bidding process; 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 with 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, the WCJ granted the modification 

petition. He determined Claimant’s application efforts did not refute Employer’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 WCJfound 

Claimant was only capable of performing the four light-duty positions the LMS 

identified: Gerrity’s Supermarket; BCM Solutions; Securitas; and Falzone’s Towing.

The WCJ emphasized Claimant agreed he was able to perform these four positions, 

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 open 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, and he 
6

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 addition, the WCJ noted the lack of evidence showing that Employer 

posted, announced or recruited for a specific position within Claimant’s restrictions. 

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

Based on the four suitable, available positions, 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 benefits accordingly, as of April 12, 2016. 

Claimant appealed to the Board. 

Claimant asserts that two 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 submitted 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 proving a specific job vacancy with Employer, 

it 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 nonexistence. 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 discern a lack of good faith in Claimant’s application 

efforts.

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 Recall 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 because he applied for the four suitable 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, or 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. (Phila. 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. §§1-1041.4, 2501-2710.

3 Added by the Act of June 24, 1996, P.L. 350.
9

A. Specific 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 employee 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 to the prerequisite of a 

“specific job vacancy.” Id.

1. Burden of Proof

This Court recently clarified which party bears the burden of proving 

an employer had a suitable vacancy in Brozman v. Workers’ Compensation 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 bore

the burden of proving it had no available work internally before obtaining a labor 

market survey. We disagreed, emphasizing that the burden to 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, this Court explained “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 nonexistence.” Rosenberg v. Workers’ Comp. Appeal Bd. (Pike Cty.), 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 employer 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 

vacancy 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. Workers’ Comp. Appeal 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 submitted no evidence of a

specific vacancy with Employer. Indeed, he admitted he was unaware of suitable jobs 

with Employer. F.F. No. 6.f; R.R. at 481a. HR Director was also uncertain whether 

Employer had any available positions within Claimant’s restrictions. R.R. at 345a.
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 Claimant 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 merit 

in Claimant’s contention that Employer violated the Act by failing to offer a lightduty position to Claimant.

2. Recall List

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

after-acquired evidence warranting a remand. He argues 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 union representatives, lists names and dates, stating “Recalled to Light 

Duty.” R.R. at 99a. Importantly, the Recall List 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 timeframe (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 unavailable.

Paxos v. Workmen’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 rehearing 

must establish the new evidence is necessary to obtain a just result. Keith v. 

Workers’ Comp. Appeal Bd. (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 capacity 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 jobs 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, that did not cure the deficiency in the record. The Board could not consider the 

Recall List because it was 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 

available.” 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. Workers’ 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 Bd. (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 unsuccessful in his applications does 

not mandate a finding that the positions were not open and available. Valenta. 

Rather, while evidence regarding a claimant’s efforts 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 191a-97a. Claimant’s testimony corroborates Employer’s 

evidence regarding availability. Id. at 452a-57a. When 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 were 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 weeks to apply 

for these positions. This more than three-week timeframe afforded Claimant a 

reasonable 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 his application to the four suitable jobs, 

Claimant did not make a good faith effort to be employed. Noting his 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, the WCJ cited Claimant’s: (1) unexplained delay in applying for the 

jobs more than three 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-57a, 465a; see also C.L. No. 5. Further, the WCJ underscored that Claimant 

did not apply for any jobs other than those in the LMS since his layoff in 2014 despite 

his ability to perform light-duty work. F.F. Nos. 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 questions 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, Judge
IN 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 22nd day of March, 2019, the order of the Workers’ 

Compensation Appeal Board is AFFIRMED.

 

ROBERT SIMPSON, Judge