IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philadelphia Eagles, LLC, :

Petitioner :

: No. 1103 C.D. 201 5
v. : : Submitted: December 1 1 , 201 5 Workers’ Compensation Appeal : Board ( Harris), :

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge 1

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: May 6 , 2016

The Philadelphia Eagles , LLC (Employer ) petition for review from the June 1, 2015 order of the Workers’ Compensation Appeal B oard (Board), which affirmed a Workers’ Compensation J udge’s (WCJ) decision denying Employer’s petition to modify Antoine Harris’s (Claimant) compensation benefits for failing to comply with section 306(b) of the Workers’ Compensation Act ( Act ). 2

1 This case was assigned to the opinion writer on or before December 31, 2015, when President Judge Pellegrini assumed the status of senior judge.

2 Act of June 2, 1915, P.L. 736, as amended , 77 P.S. §512.2 Facts and Procedural History The underlying facts are undisputed. On August 13, 201 0, Claimant was injured during the course of his employment as a professional football play er. By order dated December 12, 2011, a WCJ adopted the parties’ stipulation of facts, acknowledging that Claimant had sustained a compensable injury to his right foot and
awarded him total disability benefits at a rate of $845.00 per week. O n May 12,
20 12, Employer filed a petition to modify compensation benefits , alleging that Claimant possessed an earning power of at least $1,000.00 per week based on a labor
market assessment. Claimant filed an answer denying the material allegations of Employer’s pet ition and alleging that work is available with Employer which had not
been offered to him pursuant to section 30 6(b) of the Act

. The matter was assigned

to a WCJ and a series of hearings were held.

Michael Smychynsky , Employer’s vocational expert, te stified that he performed a labor market analysis in Phi ladelphia, Pennsylvania and, b ased on the information he obtained, opined that Claimant had an expected earning capacity of $1,000.00 per week. Smychynsky stated that he reviewed a work

- release report issued by James Beskin, M.D. , issued C laimant a Notice of Ability to Return to
Work , and contacted Employer to inquir e whether it had any employment available
that fit within the scope of the work release. Smychynsky testified that he was
referred to Eric Rousch , Employer’s Human Resources C oordinator, who executed an affidavit indicating that Employer did not have a specific job vacancy available for
Claimant. ( Reproduced Record ( R.R. ) at 9a

- 10a , 12 a

- 14 a .)

Smychynsky stated that he conducted a vo cational interview with Claimant on March 16, 2012. During the interview, Smychynsky learned that
Claimant maintained his permanent address in Lawrenceville, Georgia , and that he3

had graduated from the University of Louisville with a degree in mass

commun ication. Smychynsky also learned that Claimant wanted to use his degree for sports broadcasting or some other sports

- related acti vity; however, Smychynsky
noted that Claimant had no internships, post

- graduate education, or training in sports broadcasting. Smychynsky explained that the only experience Claimant had other than playing professional football was charity work in Columbus, Ohio , where he operated a sports camp during the summer for approximately three

- hundred children. (R.R. at 17a

- 20 a .)

Smychynsky testified that he performed a labor market survey and
identified eighteen jobs in the Philadelphia area that he believed would be vocationally appropriate for Claimant. Smychynsky noted that the employers he
contacted were willing to provide Cl aimant with training and employment due to the
fact that he possessed a college degree. He stated that he completed job analyses for
five positions 3 and provided them to Dr. Beskin to determine whether the positions were physically suitable for Claimant

. Smych y n sky confirmed that Dr. Beskin approved the proposed jobs as physically suitable for Claimant. (R.R. at 21a

- 29 a .)

Smychynsky opined that the eighteen jobs he identified were within Claimant’s physical capabilities because most of the positions were sedentary and his understanding of Dr. Beskin’s work release was that Claimant could engage in virtually any position except for one which would require running, push

- off skills, or quick changes of direction. He stated that the identified jobs were within Claimant’s

3 Smychynsky explained that the job analyses he provided to Dr. Beskin for review were: a dispatcher position with the University of Pennsylvania; a communications officer position with Philadelphia Community College; a communications officer position with Swarthmore College; a sales position with Access Security Corporation; and a sales representative position with Global Sports Publications. (R.R. at 26a.)4

vocational capabilities because they are entry level positions that do not require previous experience and many of the positions prefe r or require a college degree. (R.R. at 29a

- 31a.)

Smychynsky reviewed positions available with Employer and testified that they were not suitable for Claimant because most of the jobs were intern positions requiring the applicant to be within one year of graduation. He noted that Employer had a database manager position and a lead d esigner position available but opined that they were not suitable for Claimant because Employer requested a degree in quantitative business discipline and graph ic design respectively , which Claimant did not possess. Smychynsky confirmed that Employer had a digital services

co ordinator position available but noted that it requested two to three years of digital
or web

- based experience. Similarly, Smychyns ky stated that Employer had an e

commerce coordinator position available ; however, it also required one to three years of specific experience. (R.R. at 31a

- 35a.)

Smychynsky testified that Employer had other jobs available, including a part

- time event staff position, but noted that they required residence in the Philadelphia area

. Smychynsky acknowledged that all the positions he identified in his labor market survey would require Claimant to reside in the Philadelphia region

. Smychynsky explained that Employer did not have any positions available in Lawrenceville, Georgia , where Claimant maintains his pe rmanent residence , and
concluded that Employer’s available positions were not suitable for Claimant because
he did not meet the preferred requirements . He confirmed that Employer did not make any job offers to Claimant

. (R.R. at 31a

- 35 a , 46a

- 47a .)

Dr. B eskin , a board certified orthopedic surgeon specializing in foot and ankle orthopedics, testified that he performed an independent medical examination5

(IME) of Claimant on January 16, 2012, opined that he had reached maximum medical improvement from his in juries , and stated that no significant ongoing care
would be needed. Dr. Beskin explained that Claimant suffered a non

- contact injury when he was running, made a cut, and felt a sudden , acute pain in his foot. He noted that Employer’s team physician diag nosed Claimant with an injury to the Lisfranc portion of his ligament and, subsequently, a foot and ankle specialist recommended
surge ry, which was performed. (R.R. at 155a

- 60a.)

Dr. Beskin testified that there were no apparent complications from the

su rgery and that Claimant’s recovery was fairly routine; however, he noted that Claimant complained of persistent pain or aching in the area of the injury and felt that
the activities required in professional football exacerbated his symptoms. Dr. Beskin opined that Claimant would never be able to play professional football again, but explained that Claimant had reached maximum medical improvement status as of the date he performed the IME because no additional intervention would change the
outcome of Cla imant’s condition and testified that he would place no restrictions on Claimant’s ability to walk or climb stairs. Dr. Beskin further testified that Smychynsky provided him with five job analyses forms, that he reviewed all of the jobs set forth in the ea rning capacity assessment, and that he approved Claimant for the jobs because the symptoms Claimant described were related to high

- energy situations such as running and cutting and none of the jobs required those type s of
activities . Dr. Beskin also opine d that Claimant was physically able to perform the positions that were available with Employer. (R.R. at 161a, 165a

- 71a.)

Claimant testified that he was injured in 2010, has resided in Lawrenceville, Georgia , since 2009, and obtained a bachelor’s degree in communications from the University of Louisville in 2004. Claimant stated that the6

only job he had while in high school was at a hardware store performing manual
labor for a single summer

. Claimant also stated that he did not perform any work
after he graduated from high school and before starting college but noted that he did assist his former basketball coach with a sports camp for a weekend during that period. Claimant further testified that the only job he performed during his college

years was as a security guard for Churchill Downs for one week during a single

summer. (R.R. at 205a

- 10 a .)

Claimant further testified that he played for both the Tennessee Titan s and Atlanta Falcons before si g n ing with Employer in 2010. He stated that, during the
p eriod before signing with Employer, he did not perform any professional work
outside of football. Claimant noted that he operates a nonprofit football camp for
kids in Ohio but clarified that it is a volunteer activity and not a job. He testified that
he created a limited liability company and received a grant from the National Football League to operate his camp. Claimant explained that his camp was a one

- day summer camp, that it ra n from 9:00 a.m. to 5:00 p.m., and that he operated the camp
for two years . He further explained that he obtained insurance for over three

- hundred
kids ; negotiated and procured equipment and facilities , such as venues and hotel rooms; marketed the camp, including designing logos and generating radio and social
media advert isements; recruited volunteers and paid staff members; cre ated a secondary plan; obtained sponsorships for food, beverages, clothing, and prizes; obtained and negotiated talent, i.e., celebrity coaches; and performed event planning, including booking and c oordinating flights, hotels, dinners, and various functions. ( R.R. at 210a

- 1 5 a .)

Claimant also testified that he has real estate experienc e; s pecifically, he stated that he purchased a property for his parents in Ohio but noted that he does not7

charge th em to reside there. He also stated that he p urchased a property in Atlanta for rental purposes but clarified that he has never had any tenants. Claimant further testified that he has not performed any other business ventures, held any job for any employe r, or completed any unpaid internships since his injury in 2010. However, he
indicated that he has performed volunteer work on two occasions since his 2010 injury and added that he is currently pursuing a license to sell insurance. (R.R. at
215a

- 20 a .)
Claimant confirmed that he resided in temporary housing during his tenure with Employer and never actually relocated to Philadelphia. He stated that he
never look ed for work in Philadelphia after his injury in 2010 but noted that he may have stayed in Ph iladelphia if there was an opportunity to do so

. Claimant testified
that he wears orthotics in his shoes , occasionally experiences pain if he is on his feet for a long period of time , and has performed physical therapy for strengthening and conditioning t he muscles in his foot. He acknowledged that he felt some improvement in his foot and that his condition has not changed since the IME. (R.R.
at 221a

- 2 7 a .)

Claimant testified that he does not receive and has not applied for any benefits other than workers’ compensation. He stated that he has not done any self

employment activities and has not applied for any jobs other than the insurance program since 2010 because he does not have adequate experience. Claimant confirmed that he reviewed the job anal yses forms Smychynsky provided to Dr. Breskin and opined that he would likely be able to perform them without issue. He acknowledged that he never applied for a job with Employer since his injury in 2010 and testified that Employer did not make any job offers to him or advise him of any8

available openings. He further testified that he would consider moving to Philadelphia if he was offered a good job. (R.R. at 228a

- 33 a , 238a

- 39a. )

Kristie Pappal (Pappal) testified that she has been Employer’s Director
of Human Resources for approximately six years and is responsible for overseeing Employer’s hiring. She stated that Employer is a very high profile organization that
receives res umes and inquires year

- round regardless of whether a position is available and testified that, on average, a posted position receives over one

- thousand applications . Pappal explained that Employer can be very selective in its hiring
because it receives a high number of applicants for every position, previous customer service experience is a baseline for an applicant’s consideration , and workers’ compensation claimants receive no hiring preference

. (R.R. at 246a

- 48a , 254a .)

Pappal further testified that Employer compiled a list of jobs that were available during the period between January 25, 2012, and May 12, 2012. She reviewed the positions and stated that the only applicants that are considered for Employer’s internship positions are current college o r graduate school students or students who have gradua ted in the past twelve months and that Claimant would not be eligible for any internship positions. Pappal also stated that Employer does not currently have , nor has it ever had , positions available in the Lawrenceville, Georgia , or Atlanta, Georgia , areas. (R.R. at 248a

- 49a .)

Pappal explained that Claimant was not qualified for any of Employer’s
available positions because he did not have the preferred level of experience. Specifically, Pappal stated that Claimant was not qualified because: he did not have previous experience using online catalogues or using online analytics to process
merchandise orders preferred for an e

- commerce merchandise coordinator position; he did not have previous pro ducing and editing e xperience necessary for a position as9

an Eagles Television Network producer; he did not have experience handling large scale event logistics preferred for a position as an events coordinator; and he did not have the customer service exp erience necessary for a sales associate or game

- day staff position. Pappal testified that previous experience is the most important factor for Employer when considering applicants and confirmed that Employer never contacted Claimant to advise him of any potential job openings. (R.R. at 250a

- 52 a , 262a, 264a.) By decision and order circulated October 25, 2013, the WCJ denied Employer’s petition for modification of compensation benefits . The WCJ found Smychynsky and Pappal’s testimony indicating that Claimant was not qualified for a marketing coordinator position unpersuasive and not credible. (WCJ’s Finding of Fact No. 9a.) Specifically, the WCJ noted that Pappal’s testimony regarding
Claimant ’s lack of experience handling large scale event logistics was factually wrong; Pappal incorrectly concluded that Claimant does not possess a college degree; and the marketing coordinator job description was not attached to Smychynsky’s deposition. Accord ingly, he determined that Claimant had the educational and vocational capacity to perform the marketing coordinator position and concluded that Employer failed to comply with section 306(b)(2) of the Act because it did not notify
or consider Claimant for t he marketing coordinator position and, therefore , could not rely on the labor market s urvey.

Employer appealed the WCJ’s decision to the Board, arguing that : the WCJ’s findings were not supported by sufficient, competent evidence because Employer was onl y obligated to offer Claimant an available position within reach of the Claimant’s current residence; the WCJ failed to apply relevant regulations providing that an employer’s obligation to offer a specific job vacancy is applied10

consistent with the employ er’s usual business practice; the WCJ erred in using his opinion as a basis to find that Claimant was qualified for the marketing coordinator position in the absence of expert testimony; and the WCJ erred when he issued a decision without identifying and e xplaining why he rejected certain evidence.

The Board affirmed the WCJ, reasoning that, although the language in Motor Coils MFG/WABTEC v. Workers’ Compensation Appeal Board (Bish) , 853 A.2d 1082 (Pa. Cmwlth. 2004) , indicates that the offered job must b e within reach of the claimant’s residence, a literal application of the language ignores the purpose of the decision, i .e., to ensure a claimant is offered a position that he is capable of performing

. The Board conceded that the WCJ may have exceeded his authority
when he determined that Claimant was capable of performing the marketing coordinator position; however, it determined that he ultimately came to the correct
conclusion

. The Board noted that Employer bears the burden to prove the unavailability of a position when Claimant raises the availability of a suitable job and, because a WCJ is free to accept or reject the testimony of any witness and rejected Employer’s witnesses’ testimony
, it reasoned that Employer fai led to meet its burden

to prove that Claimant could not perform the marketing coordinator position.

On appeal to this Court, 4 Employer argues that the WCJ erred in rejecting its uncontroverted evidence that Claimant was not qualified to fill its specifi c job vacancy pursuant to its usual business practices. Employer also argues
that the WCJ erred when he determined that Employer did not comply with section 306(b) of the Act because it did not offer Claimant a job in Pennsylvania.

4 Our standard of review in workers’ compensation appeals is limited to determining whether an err or of law was committed, constitutional rights were violated, or whe ther necessary findings of fact are supported by substantial evidence. Fruehauf Trailer Corporation v. Workers’ Compensation Appeal Board (Barnhart), 784 A.2d 874, 876 n.2 (Pa. Cmwlth. 20 01).11 Discussion
An em ployer seeking to modify a claimant’s compensation benefits must
either:
(1) offer to the claimant a specific job that it has available,

which the claimant is capable of performing, or (2) establish “earning power” through expert opinion evidence includ ing job listings with employment agencies, agencies of the Department of Labor and Industry, and advertisement in a claimant’s usual area of employment. Reichert v. Workers’ Compensation Appeal Board (Dollar Tree Stores/Dollar Express and Specialty Risk Services, Inc.) , 80 A.3d 824, 829 (Pa. Cmwlth. 2013) (citation omitted).

Pursuant to the Act: “Earning power” shall be determined by the work the employe is capable of performing and shall be based upon expert opinion evidence which includes job listi ngs with agencies of the department, private job placement agencies and advertisements in the usual employment area

. . . . If the employe does not live in this Commonwealth, then the usual employment area where the injury occurred shall apply. If the empl oyer has a specific job vacancy the employe is capable of performing, the employer shall offer such job to the employ e

. . . . 77 P.S. §512 (emphasis added)

.

Additionally, section 123.301 of the regulations of the Bureau of Workers’ Compensation (Bureau) provides that:

(a) For claims for injuries suffered on or after June 24, 1996, if a specific job vacancy exists within the usual employment area within this Commonwealth with the liable employer, which the employee is capable of performing, the
e mployer shall offer that job to the employee prior to12

seeking a modification or suspension of benefits based on earning power

.

* * *

(c) The employer’s d uty under subsections (a) and (b) may be satisfied if the employer demonstrates facts which may incl ude the following :

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

.

* * * (e) The employer’s duty under subsections (a) and (b) does not require the employer to hold a job open for a minimum of 30 days. Job offers shall be made consistent with the employer’s usual business practice

. . . . 34 Pa. Code §123.301 (a)

- (e ) (emphasis added)

.

Employer argues that the WCJ erred when he failed to apply Employer’s usual business practices in assessing Pappal’s determination that Claimant was not qualified for any of its specific job vacancies that were available during the relevant period.
Section 123.301 (e) of the Bureau’s regulations requires that job offers
are made “ consistent with the employer’s usual business practice.” Here, Pap pal testified that Employer is a high profile organization, receives over one

- thousand applications for any posted pos ition, and is very selective when making hiring
decisions. Pappal also testified that customer service is a necessary prerequisite for

an y applicant’s consideration and that Cl aimant was not qualified for an events coordinator position because he did not have experience handling large scale event logistics. Moreover, Smychynsky testified that Claimant did not meet any of the13

requirements f

or Employer’s available positions because he lacked necessary experience and did not reside in the Philadelphia area. However, the WCJ disagreed and concluded that Claimant was qualified for a marketing coordinator position with Employer . He rejected Employer’s contrary testimony as not credible because: Pappal’s testimony regarding Claimant’s in experi ence handling large

- scale events was factually wrong ; Pappal incorrectly concluded that Claimant does not possess a college degree; and the ma rketing coordinator job description was not attach ed to Smychynsky’s deposition.

It is well settled that the WCJ “has complete fact

- finding discretion as to the credibility of witnesses and evidentiary weight, and such findings will not be
disturbed if s upported by substantial evidence.” Harding v. Workers’ Compensation Appeal Board (Arrowhead Industrial) , 706 A.2d 896, 899

- 900 (Pa. Cmwlth. 1998). A WCJ’s “finding can only be reversed if not supported by substantial, competent evidence or if arbitrary and capricious.” 5 Pritchett v. Workers’ Compensation Appeal Board (Stout) , 713 A.2d 1214, 1217 (Pa. Cmwlth. 1998). Indeed, we have previously held that a court may overturn a WCJ’s credibility determination “only if it is arbitrary and capricious or so f undamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational.” Casne v. Workers’ Compensation Appeal Board (Stat Couriers, Inc.) , 962 A.2d 14, 19 (Pa. Cmwlth. 2008). This Court has stated that “[t]he me aning of arbitrary includes ‘founded on prejudice or preference rather than on reason or fact.’” Id . at 19 n.5 (citation omitted). Our Supreme Court has held that a capricious disregard of evidence exists

5 “Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board (Skirpan) , 612 A.2d 434, 436 (Pa. 1992) (citation omitted).14

“ when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result

. ” Station Square Gaming L.P v. Pa. Gaming Control Board , 927 A.2d 232, 237 (Pa. 2007)

. Similarly , section 422(a) of the Act provides that “[u] ncontroverted evidence may not be rejected for no reason or for an irrational reason.” 77 P.S. §834.

As to the finding that Claimant did not have a college degree , it is clear
that Pappal did not testify that Claimant did not poss ess a college degree. Rather, she expressly stated that Claimant did have a college degree. 6

As to the WCJ’s finding that Employer’s testimony was not credible, specifically, that Smychynsky’s expert testimony was deficient because a job description fo r the marketing coordinator position was not attached to his deposition , the basis for this finding is erroneous

. Although the job description was not attached

to Smychynsky’s deposition , the marketing coordinator position was included in the list of jobs that he was asked to review. (R.R. at 45a, 49a

- 50a, 69a.)

Regarding the WCJ’s finding that Pappal’s testimony was factually

wrong because he determined that Claimant had sufficient experience handling large

scale events such that he was capable of performing the marketing coordinator

6 Q: [Claimant] does have a degree, correct?
A: Again, based on his deposition, yes . If I saw his resume, I would not know that he has a degree. (R.R. at 259a

- 60a.)
Q: Let’s look further down [the] page at the qualification s. He does have a Bachelor’s degree, does he not?
A: Based on his deposition, I understand that. Looking at a resume I would not know that. (R.R. at 260a

- 61a.)15

position, the Board correctly acknowledged that this analysis was improper because the WCJ exceeded his authority when he made his determination solely based on Claimant’s testimony and resume. S ee also 77 P.S. §512(2) (“‘Earning power’ shall be determined by the work the employe is capable of performing and shall be based upon expert opinion evidence . . . .”). It is undisputed that Claimant operated a one

day summer camp on two occasions for ap proximately three

- hundred kids. However, this evidence is not sufficient expert evidence to serve as a basis for determining what work Claimant is capable of performing. Although the Board affirmed the WCJ on other grounds because it determined that cred ibility determinations are solely the WCJ’s prerogative, we articulated above why those findings were unsupported by the record and, consequently, arbitrary and capricious.

Accordingly, the Board’s order is reversed . The matter is remanded to
the Board w ith specific instructions to remand to the WCJ to determine whether Claimant was qualified for any available positions with Employer based on an accurate reading of the record

. 7

________________________________ PATRICIA A. McCULLOUGH, Judge

7 Based on the foregoing disposition, we will not address Employer’s additi onal argument that the WCJ erred when he determined that Employer did not comply with section 306(b) of the Act because it did not offer Claimant a job in Pennsylvania.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philadelphia Eagles, LLC, :

Petitioner :

: No. 1103 C.D. 2015
v. : : Workers’ Compensation Appeal : Board (Harris), :

Respondent :

ORDER

AND NOW, this 6 th day of May , 201 6 , the June 1, 2015 order of the Workers’ Compensation Appeal Board (Board) is reversed

. The matter is remanded to the Board with specific instructions to remand to the Workers’ Compensation Judge for further findings consistent with this opinion

.

Jurisdiction relinquished.

________________________________ PATRICIA A. McCULLOUGH, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philadelphia Eagles, LLC, :

Petitioner :

: v. : No. 1103 C.D. 2015
: Submitted: December 11, 2015 Workers’ Compensation Appeal : Board (Harris), :

Respondent :

BEFORE: HONORABLE DAN PELLEGRI NI, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION BY PRESIDENT JUDGE PELLEGRINI FILED: May 6 , 2016

The issue in this case is whether the Employer sat isfied its burden to modify Antoine Harris’ s (Claimant) compensation benefits based on a labor market survey conducted in accordance with Section 306(b) of the Workers’ Compensation Act (Act). 1 This provision allows an employer to modify compensation bene fits based on a labor market survey that, considering the employee’s residual productive skill, education, age and work experience, determine s what type of substantial gainful employment e xists in the usual employment area and , based on that survey , determ ine s the c laiman t’s earning power and modifies compensation accordingly.

1 Act of June 2, 1915, P.L. 736, as amended , 77 P.S. §512.DRP

- 2

Section 306(b)(2) of the Act , though , provides that “[i]f the employer has a specific job vacancy the employe is capable of performing, the employer shall offer such job to the emplo ye.” If it does not , benefits may not be modified. I respectfully dissent because the majority has incorrectly found that an employee

- claimant has to have the qualification exactly listed on the employer ’s job description, not just that he must be capabl e of performing such a job.

In this case, the Workers’ Compensation Judge (WCJ) accepted Philadelphia Eagles, LLC’s (Employer) labor market survey that would allow for
Claimant’s employment in various positions, including a marketing coordinator position , with a starting wage of approximately $1
, 000 per week. Th e WCJ rejected, however, the testimony of Employer’s Director of Human Resources that Claimant did not meet the requirements of the posted positions, includ ing that of a “ticket
taker” or a “tour guide , ” because he had no customer service experience. Based on the positions that Employer’s labor market survey found that Claimant was capable of performing, the WCJ found that Claimant was capable of performing the market coordinator position and the WCJ denied Employer’s request to modify benefits.

The majority reverses the WCJ ’s decision because it finds the WCJ’s rejection of Employer’s Director of Human Resources and the person who conducted the labor market survey testimon ies to the extent that Claimant was not capable of performing the job to be unpersuasive and not credible and was arbitrary, capricious and unsupported by the record. It so found because the WCJ based his credibility findings on the fact that the Director of Human Resources tes tified that Claimant did not have a college degree when she , in fact , testified that Claimant did have a collegeDRP

- 3

degree; that the person that conducted the labor market survey was deficient because a job description for the marketing coordinator position w as not attached to his deposition when the marketing coordinator position was included in the list of jobs
that he was asked to review ; and the WCJ ’s finding that the Director of Human
Resources ’ testimony was wrong because Claimant had experience handling large

scale events.

The WCJ did make an error in finding that Employer’s Director of Human Resources testified that Claimant did not have a college degree. However,
the WCJ ’s finding that the person who conducted the labor market survey did not
review the marketing coordinator position because it was not attached to his deposition is not so clear. Simply because it was included in the list of jobs he was
asked to review does not mean that he did , especially when Employer’s Director of
Human Resources d id not discuss the marketing coordinator positon in her testimony even though she specifically mentioned other positions. This is a matter for the WCJ to determine, not this court. As to whether he had experience handling large

- scale events, it is undisp uted that Claimant operated a one

- day summer camp on two occasions for approximately 300 children. Whether that was sufficient experience is for the factfinder, in this case , the WCJ , to make.

None of the above is crucial , though , to the outcome because the fatal flaw in the majority’s position is its assumption that if a claimant does not meet the exact description contained in the employer’s job listing, an employer is not required to offer the job to the employee

- claimant. That is not what the law pr ovides. Under Section 306(b)(2) of the Act, a claimant is not required to be the best qualified personDRP

- 4

for the position and to meet all the requirements in the job posting; all that this provision requires is that the employee

- claimant be offer ed an avail able position that “the employe is capable of performing

. ” In finding of fact # 9a, the WCJ found that “the position of Philadelphia Eagle s m arketing coordinator was vacant and available

... and that [Claimant] h ad the educational and vocational capacity t o perform this position. ” 2

There is substantial competent evidence to support that finding , given
that the person who conducted the l abor market survey found that Claimant is capable of being a market coordinator , as well as evidence that he has organize d events

.

2 The majority seems to take the position that an e mployer is free to be as selective a s it wants to in filling the position. In making that argument , it relies on Section 123.301(e) of the Bureau of Workers’ Compensation’s regulations which provides:

The employer’s duty under subsections (a) and (b) does not require the employer to hold a job open for a minimum of 30 days. Job offers shall be made consistent with the employer’s usual business practice. If the making of job offers is controlled by the provisions of a collective bargaining agreement, the offer shall be made consistent with those provisions.
34 Pa. Code §123.301(e).

As can be seen , this goes to how long “j ob offers” have to be held open; it does not give carte blanche to an employer to add “squishy” job requirements that are freely waivable
, only acting as a shield to avoi d its obligations under the Act and other laws. All that Section 306(b)(2) of the Act requires is that the person be “capable” of performing the job. Even if we were to accept the majority’s interpretation of the regulations
, “ the power of an administrat ive agency to prescribe rules and regulations under a statute is not the power to make law, but only the power to adopt regulations to carry into effect the will of the Legislature as expressed by the statute. ” Volunteer Firemen ’ s Relief Association of th e City of Reading v. Minehart , 227 A.2d 632, 635

- 636 (Pa. 1967)

. When an agency adopts regulations at variance with the statute, the regulations, and not the statute, fall by the wayside. See Xerox Corporation v. City of Pittsburgh , 327 A.2d 206 (Pa. Cmw lth. 1974) ; George A. Fuller Co. v. City of Pittsburgh , 327 A.2d 191 (Pa. Cmwlth. 1974).DRP

- 5

Moreover, neither the person who conducted the labor market survey n or the Director
of Human Resources ever testified that Claimant was incapable of performing any of the positions

– including the “ticket taker” position. T hose positions had a salary range well above Claimant ’s presumed earning power of $1 ,0 00 a week . This does

not show that the job required someone with more qualifications, only that they wanted someone that had more experience than Claimant.

Accordingly, for the foregoing r easons, I respectfully dissent.

____________________________________ DAN PELLEGRINI, Senior Judge