IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Curry, : : Petitioner :

: v. : No. 82 C.D. 201 5
: Workers’ Compensation Appeal : Submitted: July 17, 2015 Board (Brian’s Professional Cleaning : and Restoration and State Workers’ : Insurance Fund), : : Respondents :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON , Judge HONORABLE ROCHELLE S. FRIEDMAN , Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: September 10, 2015

Anthony Curry (Claima nt) petitions for review of an O rder of the Workers’ Compensation Appeal Board (Board) that affirmed a Workers’ Compensation Judge’s (WCJ) Decision and O rder granting Claimant’s Petition to Review Compensation Be nefits (Review Petition) and Brian’s Professional Cleaning and2

Restoration’s (Employer) Modification Petition. 1 On appeal, Claimant contends
that the WCJ erred in granting the Modification Petition because (1) Employer failed to prove that it did not have a job vacancy Claimant was capable of performing; (2) substantial e vidence does not support the WCJ ’s finding that Claimant was physically and vocationally suit ed for jobs identified by a labor market survey; and (3 ) remand is necessary so that he can pre sent evidence that he
did not have a reasonable opportunity to appl y for the jobs identified by the labor
mark et survey

. Because Employer sustained its burden to prove that it did not have a job vacancy within Claimant’s capacities
, and substan tial evidence supports
the WCJ ’s findings that Claimant was suited for two positions identified in the labor market survey, w e affirm.

I. Background Claimant was injured in the course and scope of his employment on July 11, 2011. (WCJ Decision, Findings of Fact (FOF) ¶ 1.) Employer issued a Notic e of Compensation Payable (NCP) acknowledging an injury described as a “R T
W RIST C ON TUSION ” and providing total disability benefits . (FOF ¶ ¶ 1 , 2 .) Claimant’s weekly compensation rate was $352.24 based on an average we ekly wage of $391.38. (FOF ¶ 1.)

Following an Independent Medical Examination (IME) conducted on September 13, 2012 , Employer issued a Notice of Ability to Return to Work on September 14, 2012. (Notice of Ability to Return t o Work, C.R. at Item D

- 1. ) On

1 Neither party challenges the Board’s Order as it relates to Claimant’s Review Petition. According ly, only the Modification Petition is at issue.3

February 21, 2013, Employer filed a Modification Petition seeking to modify Claimant’s benefits as of February 21, 2013 based on a labor market survey showing that vocationally and physically appropriate work is generally available in
the area where C laimant resides

. Claimant filed an answer denying the averments
contained in the Modification Petition and subsequently filed a Review Petition on May 23, 2013 seeking to amend the description of hi s injury to include “right wrist contusion, peripheral T FC tear [ , ] membranous tear of his scapholunate ligament, de Que [ r ] vain’s syndrome with nerve damage [ , and] thumb ligament damage.” (Review Petition at 2, R.R. at 18a.) The Modification Petition and Review Petition

were consolidated and hearings before the WCJ ensued

.

In support of the Modification Petition, Employer presented the deposition
testimonies of its Office Manager ; Scott Naftulin, D.O. ; and Franc e s K. Terry, a vocational case manager. In opposition to Employer’s Modification Petition
, Claim ant testified on his own behalf and submitted the deposition testimonies of his treating physician, A. Lee Osterman, M.D. , and Dennis Mohn, a rehabilitation
counselor.

Employer ’s Office Manager testified as follows. Employer employs approximately 100 individuals, including around seventy

- seven janitorial employees, fourteen office workers, five carpenters, and four or five employees assigned to th e floor covering the showroom. (FOF ¶ 4; Office Manager ’s Dep. at
9

- 10 , R.R. at 65a

- 66a .) Office Manager received a document , which was prepared by Dr. Na ftulin, from Employer’s insurer detailing Claimant’s medical restrictions

. ( FOF ¶ 4; Office Manager ’s Dep. at 11 , R.R. at 66a.) The document completed by4

Dr. Na ftulin limited Claimant to medium

- dut y work , with lifting restricted to no more than fifty pounds, and further limited the repetitive motion of Claimant’s right hand to occasional/ frequent

. (Physic al Capabilities Form, R.R. at 117a.) Thereafter, Office Manager was contacted by Ms. Terry . ( Office Manager’s Dep. at 12, R.R. at 66a.) They discussed Claimant’s restrictions
, after which Office Manager informed Ms. Terry that Employer had no opening s that fit within the restrictions. (Office Manager ’s Dep. at 12

- 13, R.R. at 66a.)

Office Man a ger testified that Claimant was not suited for the carpenter position because carpenters hired by Employer must be experienced in the field and able to lift and nail with two hands. (Office Manager ’s Dep. at 1 4

- 16, R.R. at 67a.) The secretarial positions within the office are not suited for Claimant because such positions require repetitive typing throughout the day. (Office Manager ’s Dep. at 16, R.R. at 67a.) Further, Claimant was not suited for the janitor position because janitorial workers are requi red to lift furniture and heavy buckets of water, requiring the use of two hands. (Office Manager ’s Dep. at 18

- 19 , R.R. at 68a.) Finally, Claimant was not capable of performing the position in the floor covering the showroom because showroom floor worker s are essentially sales representatives that must have knowledge of flooring products and able to estimate square footage. (Office Manager ’s Dep. at 16

- 17, R.R. at 67a.) Between September 1 3 , 2012 2 and February 21, 2013, the period between when Claimant

2 Office M anager testified that Claimant was able to return to work on September 13, 2012, the date of Dr. Na ftulin’s report releasing Claimant to work. The Notice of Ability to Return to Work was issued on September 14, 201 2 . (Notice of Ability to Return to Work, C.R. at Item D

- 1.) The Bureau of Workers’ Compensation’s regulations state that “ [t]he employer’ s obligation to offer a specific job vacancy to the employee commences when the insurer provides the notice to the employee required by section 306(b)(3) of the [Workers’ Compensation] act (77 (Continued...)5

was released to return to work and the date Employer filed the instant Modification Petition, Office Manager hired a secretarial worker and may have listed a janitorial position on C raigslist, but neither of these positions fell within Claimant’s
restricti ons. (Office Manager ’s Dep. at 19

- 21, R

. R. 68a.)

Ms. Terry, a licensed professional counselor and vocational expert with twenty

- six years of experience , testified as follows . (FOF ¶ 7; Terry ’s Dep. at 9

- 11, R.R. 130a

- 31a.) She met with Claimant on Octo ber 22, 2012 for an initial vocational assessment meeting. (Terry ’s Dep. at 17

- 18, R.R. at 132a

- 33a.) Ms. Terry then searched for vocationally suitable jobs for Claimant and identified four positions through a labor market survey. (FOF ¶ 7; Terry’s Dep. at 25, R.R. at 134a.) These position s were : (1) a customer service employee at Telerx earning $360.00 per week; (2) a telephone sales representative at Always Travel earning $400.00 per week plus commission; (3) a front desk clerk at Best Western Plus, earning $320.00

- $360.00 per week; and (4) and a payroll specialist at Paychex earning $430.00 per week. (FOF ¶ 7; Terry ’s Dep. at 25

- 30, R.R. at 134a

- 3 6 a.)
Ms. Terry visited each job site and spoke to representative s fro m the firms to confirm that the positions were vocationally appropriate for Claimant. (Terry ’s Dep. at 29, 44, R.R. 135a, 139a.) Ms. Terry then confirmed that Claimant was physically suited for these positions by sending descriptions of the position s to Dr.

P. S. § 512(b)(3)) and shall continue for 30 days or until the filing of a Petition for Modification or Suspension, whichever is longer.” 34 Pa. Code § 123.301 (b)

. See also Rosenberg v. Workers’ Compensation Appeal Board (Pike County) , 942 A.2d 245, 251 (Pa. Cmwlth. 2008) (“The time period in question starts with th e notice of ability to return to work and continues until the filing of a petition for modification

. ”). As such, the question in this case is whether Employer proved that it did not have a vacancy within Claimant’s capabilities between September 14, 2012 and February 21, 2013

.6

Naftulin and Dr. Osterman. (Terry ’s Dep. at 34, R.R. at 137a.) Both doctors approved all four jobs. (Terry ’s Dep. at 34, 37, 38, 40, R.R. at 137a

- 38a.)

Dr. Naftulin , who is board certified in family practice, physical medicine
and rehabilita tion , testified that he conducted Claimant ’s IME for Employer on September 13, 2012 . ( FOF ¶ 6 ; Na ftulin ’s Dep. at 10, R.R. at 94a .) In addition to conducting a physical exam, Dr. Naftulin reviewed Claimant’s medical history
, including the records supplied by Claimant’s medical expert, and evaluated possible work restrictions . (FOF ¶ 6; Naftulin ’s Dep. at 17

- 2 4 , R.R. at 95a

- 97a.)
Dr. Naftulin opined that Claimant suffered from a right wrist contusion, de Quervain’s tenosynovi tis, right dorsal radial sensory nerve irritation, peripheral

tea r of the triangular fibrocartilage, partial tea r of the scapholunate ligament, and right thumb ligament partial tear

. ( Naftulin’s Dep. at 24, R.R. at 97a.) In Dr.
Naftulin ’s opinion, Claima nt

was released to full

- time medium level of work without limitations in sitting, standing, walking, driving, bending, squatting or climbing. He could use his left hand without restriction. He could push and pull with both hands without restriction. H owever, I suggested limiting use of the right hand to a frequent level in terms of repetitive motion.

(Naftulin ’s Dep. at 24, R.R. at 97a.) Dr. Naftulin also reviewed the four job positions identified by the labor market survey and opined that , because t he position s were sedentary and required no lifting, Claimant was physically capable of performing all of these positions. (Naftulin ’s Dep. at 25, R.R. at 97a.)

Claimant testified in opposition to the Modification Petition as follows.
Prior to his injury, Claimant had been employed as a floor cleaner o n and off for7

twenty

- five to thirty years . (Hr’g Tr. at 12, June 24, 2013, R.R. at 43a.)
Claimant ’s work for Employer was labor intensive and involved extensive bending, lifting, stretching, and knee ling. (Hr’g Tr. at 13, R.R. at 44a.) Claimant

was require d to move furniture, lift gallons of wax, and carry machines weighing around fifty pounds up and down stairs. (Hr’g Tr. at 13, R.R. at 44a.) Since sustaining his injury , Claimant cannot lift anyt hing over twenty pounds with his right hand. (Hr’g Tr. at 15, R.R. at 46a.) He is in pain when it rains and when he does certain activities without a wristband. (Hr’g Tr. at 15

- 16, R.R. at 46a

- 47a.)
Claimant often experiences weakness, causing him to d rop items and to have trouble lifting household items. (Hr’g Tr. at 16, R.R. at 47a.)

Claimant has a high school diploma. (Hr’g Tr. at 8, R.R. at 39a.) While in high school, Claimant enrolled in a typing class for a short time , but does not know how to type. (Hr’g Tr. at 8

- 9, R.R. at 39a

- 40a.) Claimant’s other work experience includes time in the Army National Guard as a Communications Operator and as a
mail room supervisor for Pitney Bowes. (Hr’g Tr. at 9

- 10, 19, R.R. at 40a

- 41a , 50a .) His w ork at the National Guard included transmitt ing and receiving messages. (Hr’g Tr. at 19, R.R. at 50a.) At Pitney Bowes , Claimant supervised two other workers, sorted mail , and picked

- up and dropped

- off mail

. (Hr’g Tr. at 11, R.R. at 42a.) Claimant has never been employed in a position that used computers. (Hr’g Tr. at 12, R.R. at 43a.) He uses Facebook with the assistance of his fiancé and knows how to scroll down webpages, but lacks general computer knowledge and does not know how to operate Micr osof t Windows, Word , or Excel. (Hr’g Tr. at 12

- 13, R.R. at 43a

- 44a.) Prior to his injury, Claimant was enrolled in culinary arts classes . (Hr’g Tr. at 14, R.R. at 45a.) Claimant passed a8

test to be a service aid, but failed the kitchen certification test. (Hr’g Tr. at 15, R.R. at 46a.) Claimant took the tests on a compute r , but his operation of the computer was limited to scroll ing down, hi t ting buttons, and moving the arrow. (Hr’g Tr. at 21, R.R. at 52a.) Claimant stopped attending the class after he failed the kitchen test and cannot return until he pays for back tuition. (Hr’g Tr. at 15, R.R. at 46a.) Claimant believes t hat he could do light

- duty work, such as being a
gre e ter at Walmart or secretarial w ork, but has no experience interacting with the public and lacks computer knowledge. (Hr’g Tr. at 14, 17, R.R. at 45a, 48a.)

Claimant testified that, upon review of the four position s identified in the labor market survey , he concluded that he could not perform any of the jobs . (Hr’g Tr. at 17, R.R. at 48a.) Claimant testified that he called each of the employers to inquire if computer knowledge was required. (Hr’g Tr. at 17, R.R. at 48a.) Claimant stated that he would take a position if he felt t hat he could perform the tasks. (Hr’g Tr. at 17, R.R. at 48a.)

Dr. Osterman , a board certified orthopedic surgeon with added qualification s in hand surgery , testified on behalf of Claimant as follows

. (FOF ¶ 8

. ) Dr.
Osterman first examined Claimant on March 26, 2012. (Osterman ’s Dep. at 8, R.R. at 184a.) He also reviewed Claimant’s medical history and concluded that Claimant suffered from “a work

- related crush injury with ligament damage to the wrist, to the thumb, irritation of the de Quervain’s ten dons and dorsal radial sensory nerve irritation.” (Osterman ’s Dep. at 10, R.R. at 186a.) Dr. Osterman testified that he performed surgery on Claimant on April 24, 2012, where he looked inside Claimant’s wrist through a wrist arthroscopy and repaired a tear in9

Claimant’s triangular fiber cartilage by suturing the tear. (Osterman ’s Dep. at 10

- 1 1, R.R. at 186a

- 87a.) Dr. Osterman also stated that he observed a partial tear of the scaphoid lunate ligament, which is not repairable. (Osterman ’s Dep. at 11, R.R. at 187a.) According to Dr. Osterman, he also performed a procedure to free up the tendo ns and scar tissue in Claimant’s thumb and cleaned out the CMC joint. (Osterman ’s Dep. at 11, R.R. at 187a.)

Dr. Osterman referred Claimant to therapy after the surgery and opined with a reasonable degree of medical certainty that , al though Claimant s till had residual symptoms of his work injury and some of his injuries were permanent , Claimant
reached his maximum medical improvement on November 5, 2012 . (Osterman ’s Dep. at 12, 15 , R.R. at 18 8 a , 191a .) According to Dr. Osterman, Claimant was diagnose d with “a tear of the peripheral triangular fiber cartilage; . . . a partial scaphoid lunate tear; . . . ligament damage and aggravated arthritis of his CMC joint of his right thumb; . . . tendonitis of the de Quervain’s area of his thumb/wrist axis; . . . injury to the dorsal radial sensory nerve of the wrist.” (Osterman ’s Dep.
at 14 , R.R. at 190a.) Dr. Osterman cleared Claimant for “light to sedentary duty

re striction [ s ] ,” which limited Claimant to , inter alia , lifting twenty pounds and typing with ten fingers for less than eight hours per day. (Osterman ’s Dep. at 19, 21, R.R. at 195a, 197a.) Dr. Osterman testified that he reviewed the job descriptions provided by the labor m ark et s urvey twice and believes that each fall s within Claiman t’s physical restrictions. (Osterman ’s Dep. at 23, R.R. at 199a.)

Mr. Mohn , a certified rehabilitation counselor with over thirty years of experience , testified as follows . (FOF ¶ 9.) Mr. Mohn performed a vocational10

assessment by interviewing Claima nt , reviewing the depositions of Dr. Naftulin
and Dr. Osterman, Office Manager, and Ms. Terry, and attempted to reproduce the labor market survey conducted by Ms. Terry. (Mohn ’s Dep. at 7

- 8, R.R. at 344a

45a.) Mr. Mohn investigated the four position s lis ted on the labor market survey
and described the requirements for each as follows.

The Telerx position is essentially a customer service/call center position
which requires a high school diploma or GED and experience with Microsoft
Word and Excel. (Mohn ’s De p

. a t 21, R.R. at 358a.) Applicants for the Telerx position must pass a computer

- based data entry test . (Mohn ’s Dep. at 22, R.R. at 359a.) The Always Travel position is a telemarketing position and the employer prefers applicants with at least some sales experience. (Mohn ’s Dep. at 23

- 24,
R.R. at 360a

- 61a.) The Best Western positi on is for a front desk clerk that requires good customer service skills and computer literacy. (Mohn ’s Dep. at 25, R.R. at 362a.) Hunt and pe c k typing is not suffi cient for this position

. (M ohn ’s Dep. at 25, R.R. at 362a.) Further, Best Western requires its front desk clerks to be on their feet up to eight hours per day and to lift and carry guests’ luggage, weighing up to fifty pounds , when sufficient bell people or housekeeping staff are

un available . (Mohn ’s Dep. at 25

- 26 , R.R. at 362a

- 63a .) A pplicants for the payroll specialist position at Paychex must have a minimum of three years of office experience and skills in data entry, customer service, and problem so lving. (Mohn ’ s Dep. at 27, R.R. at 364a.)

Mr. Mohn opined that Claimant was not vocationally suited for any of the positions identified by Ms. Terry in the labor market survey. (Mohn ’s Dep. at 34,11

R.R. at 371a.) Further, in Mr. Mohn’s opinion, the internal secretarial position available during the pertinent timeframe , as described by Office Manager , is “almost identical” to the jobs found in the labor ma rket survey. (Mohn ’s Dep. at
30

- 32, R.R. at 367a

- 69a.) Mr. Mohn believed that i f Claimant had t he skills necessary to meet the requirements of the positions in the labor market survey, he would have the skills to fill the internal position described by Office Manager. (Mohn ’s Dep. at 32, R.R. at 369a.)

After reviewing the evidence, the WCJ made the following relevant findings
of fact:

10. Based upon my observation of him, claimant’s testimony that he is not capable of performing any of the jobs in the Labor Market Survey is rejected in favor of the credible vocational testimony. Moreover, ev en claimant’s medical expert opines he is physically capable of performing each of the jobs. Claimant’s testimony that he has minimal computer skills that would preclude him from performing data entry positions is rejected as lacking in credibility in lig ht of the fa c t that claimant took a test on the computer and he navigates Facebook. 11. [Office Manager]’s testimony is entirely credible and persuasive and is supported by claimant’s own belief that he is physically incapable of performing less strenuous positions described in the Labor Markey Survey. Her testi mony is also consistent with that of claimant’s treating physician , Dr. Osterman, who did not believe claimant could perform floor cleaning jobs, his pre

- injury job, or high production data entry. 12. Claimant had a reasonable opportunity to apply for the four jobs between January 17, 2013, the date of the Labor Market Survey report, and April 2, 2013, when Mr. Mohn confirmed that three of the jobs were still open. Claimant chose not to apply, be cause he did not believe he could perform the jobs.12

13. I accept the testimony of Franc [e] s K. Terry that claimant is vocationally suited for performing the job at Always Travel and the job at Best Western. Her testimony that claimant is vocationally
su ited for performing the Telerx job and Paychex job is rejected. In this regard, it is notable that Ms. Terry acknowledges the Paychex position is the most difficult and requires more computer use than the other positions. Alth ough the Telerx and Always T ravel positions are somewhat similar, Ms. Terry’s testimony supports a finding that the Telerx job is more complicated than the one at Always Travel (N.T. 31, 35). In addition, Always Travel provides training. Because I have rejected two of the positions , I reject Ms. Terry’s opinion that claimant has an earning capacity of $37 4 .00 per week. Rather, based upon the two appropriate positions, I find claimant has an earning capacity of $360.00 per week ($400.00 + $ 320.00 = $ 720.00 / 2 = $360.00). Therefore , claimant’s partial disability benefit rate is $20.92 ( $ 391.38

- $360.00 = $31.38 x 2/3 = $20.92). 14. I reject Mr. Mohn’s opinion that claimant is not vocationally suited to perform any of the four jobs available in the Labor Marke t Survey. Mr. Mohn acknowledges that the Always Travel position requires very little computer entry and that the job description is accurate. Mr. Mohn opined th e Best Western position is not suitable because it requires claimant’ s ability to ope n computer screens. However, Mr. Mohn admittedly did not know that claimant had the ability to take an examination o n the computer. Furthermore, his belief that ther e is a possibility claimant would have t o maneuver luggag e weighing up to 50 pounds is insufficient to foreclose this position from consideration. 15. Dr. Osterman’s opinion that claimant sustained a tear of the triangular fibro cartilage, a partial sc aphoid lunate tear, ligament damage to the CMC joint and aggravation of CMC joint arthritis of the right thumb, de Quervain’s tendonitis, and an injury to the dorsal radial sensory nerve of the right wrist is credible and persuasive . His testimony that cl aimant does not have carpal tunnel syndrome is credible and persuasive. His opinions are accepted because he performed surgery and was able to see the anatomical structures at issue. In addition, his opinion is supported, in part, by Dr. Naftulin’ s opini on.
16. Dr. Naftulin’s opinion that claimant is fully recovered from the de Quervain’s ten osyno vi tis and the distal dorsal sensory ne r ve and the scapholunate instability is credible and persuasive and supported by13

Dr. Naftulin’s thorough physical exami nation. Dr. Naftulin’s opinion regard [ing] claimant’s physical capabilities is also more credible and persuasive than Dr. Osterman’s. Dr. Os terman did not offer any physical exam findings that would refute Dr. Naftulin’s opinion.

(FOF ¶¶ 10

- 16 (emphas is in original).)

Based on these findings, t he WCJ concluded that Employer “prove [ d ] that it had no specific job vacancy that claimant was capable of performing between September 14, 2012 and February 21, 2013” and “met its burden of proving there

was wo rk generally available to claimant in his labor market area within his physical and vocational capabilities.” (WCJ Decision, Conclusions of Law (COL) ¶¶ 2

- 3.) Accordingly, the WCJ granted Employer’s Modification Petition. 3

Claimant appealed the WCJ’s Decision 4 to the Board , which affirmed

. With respect to the allegations of error advanced by Claimant with regard to the grant of Employer’s Modification Petition, t he Board first held that the WCJ did not err by allowing Employer to present evidence reg arding earning power . The Board
concluded that Claimant “did not make the required showing that [Employer] had an open position he was capable of performing but did not offer the position to

3 The WCJ also concluded that Claimant met his burden of proving that he sustained injuries beyond those listed in the NCP and granted his Review Petition. (COL ¶ 4.)

4 The WCJ issue d an Amended Order on December 19, 2013 in respon se to Claimant’s request to amend the litigation cost award. The Amended Order amended the WCJ’s original findings of fact only with regard to litigation costs and reaffirmed the original Decision and Order in all other respects. Because the issue of lit igation costs is not before us, we will not address the Amended Order.14

him.” (Board Op. at 8.) Next , the Board held that Employer was not precluded by
Section 12112 of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112 , from proceeding to the labor market survey because the ADA’s requirement that

e mployers provide reasonable accommodations to its disabled employees “is not
rel evant to the determination of an earning capacity under Section 306(b)(2)” of the Workers’ Compensation Act (Act). 5 (Board Op. at 8.) Finally, the Board
concluded that the WCJ’s findings with regard to the general availability of work , as evidenced by the labor market survey, were supported by substantial evidence
and no remand wa s necessary to determine whether Claimant had a reasonable opportunity to apply for the positions. (Board Op. at 8

- 10.) Claimant subsequently filed the insta nt Petition for Review with this Court. 6

5 Act of June 2, 1915, P.L. 736, as amended , 77 P.S. § 512(2 ). Section 306(b)(2) provides in relevant part:

“ 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 listings with agencies of the department, private job placement agencies and advertisements in the usual employment area. Disability partial in character shall apply if the emp loye is able to perform his previous work or can, considering the employe ’ s residual productive skill, education, age and work experience, engage in any other kind of substantial gainful employment which exists in the usual employment area in which the emp loye lives within this Commonwealth. . . . If the employer has a specific job vacancy the employe is capable of performing, the employer shall offer such job to the employe. In order to accurately assess the earning power of the employe, the insurer may require the employe to submit to an interview by a vocational expert who is selected by the insurer and who meets the minimum qualifications established by the department through regulation.

Id.

6 “Our scope of review in a workers’ compensation appeal i s limited to determining whether necessary finding s of fact are supported by substantial evidence, whether an error of law (Continued...)15

II. Discussion Under Section 306(b)(2) of the Act “an employer may seek modification of
a claimant ’ s benefits by either offering the claimant a specific job that it has available that he is capable of performing or e stablishing earning power through expert opinion evidence.” Kleinhagan v. Workers’ Compensation Appeal Board (KNIF Flexpak Corporation) , 993 A.2d 1269, 1275 (Pa. Cmwlth. 2010) (internal quotation marks omitted). A claimant may defend against a modificati on petition by placing prima facie evidence into the record “that a position was available with employer that he was physically capable of performing during the time period between the issuance of the Notice of Ability to Return to Work and the filing of the modification petition.” Id

. Once the claimant has put forth prima facie evidence, the employer b ears the burden to prove no position was available. Id.

If an e mplo yer sustains its burden of proving that a specific job wi thin the claimant’s capacities wa s not available with employer during the relevant
timeframe , the employer may proceed to present expert testimony of earning
power. Rosenberg v. Workers’ Compensatio n Appeal Board (Pike County) , 942 A.2d 245, 251 (Pa. Cmwlth. 2008). A claimant ’ s earning power is “determined by
the work [ that he or she ] is capable of performing . . . , based upon expert opinion evidence which includes job listings with agencies of the department, private job placement agencies and advertisements in the usual employment area.” Section 306(b)(2) of the Act, 77 P.S. § 512(2). The employer bears the burden of proving

was committed, or whether constitutional rights were violated.” Elberson v. Workers’ Compensation Appeal Board (Elwyn, Inc.) , 936 A. 2d 1195, 1198 n.2 (Pa. Cmwlth. 2007).16

that claimant had a reasonable opportunity to apply for open jobs which the claimant was capable of performing. Anderson v. Workers’ Compensation Appeal Board (F.O. Transport) , 111 A.3d 238, 246 (Pa. Cmwlth. 2015). The employer must show “the existence of meaningful employment opportunities, and not the simple identificatio n of jobs found in want ads or employment listings.” Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap) , 81 A.3d 830, 842

- 4 3 (Pa. 2013)

.

A. Employer’s Internal Positions On appeal to this Court, Claimant raises several issues. Claimant first argues that the Board erred by allowing Employer to present evidence of earning

power because Employer failed to offer him open internal secretarial and janitorial positions . Claimant assert s that he successfully rebutted the Modification Petition
b y present ing prima facie evidence showing that Employer had an open position between September 1 4 , 2012 and February 21, 2013 , that Claimant was capable of performing

. Claimant contends that he met his burden by: (1) rais ing the issue of a possible job op ening with Employer by refusing to stipulate that there were no jobs
available ; (2) presenting the testimony of Mr. Mohn, wh o opined that the jobs
identified i n the labor market survey were essentially identical to the secretarial position described by Off ice Manager ; and (3) eliciting testimony o n cross

examination of Office Manager that she hired a secretary and janitor during the relevant time period.

Even if Claimant is correct that he made a prima facie showing that Employer had an open position he was capable of performing , but was not offered17

to him , we need not reverse the Board’s O rder if we conclude that Employer met its burden of proving that it had no positions available during the relevant dates within Claimant’s restrictions that were not of fered to Claimant

. 7 See Rosenberg , 942 A.2d at 251 (holding that an employer may present expert testimony of earning power if it sustains its burden of proving that a specific job within the claimant’s capacities was not available ).

It is well known that “ c redibility determinations and evaluations of evidentiary weight are the province of the WCJ

. ” Anderson , 111 A.3d at 245. Our role is not to reweigh evidence, but to determine whether the WCJ ’ s findings, when viewed in the light mo st favorable to the party that prevailed before the WCJ, are supported by substantial evidence. Id. at 244 n.3. “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” City of Philadelphia v. Workers’ Compensation Appeal Board (Kriebel) , 29 A.3d 762, 769 (Pa. 2011). If the testimony accepted by the WCJ constitutes substantial evidence, conflicting testimony will not serve as grounds for disturbing the WCJ’s findings. Rocco v. Workers’ Comp ensation Appeal Board (Parkside Realty Construction) , 725 A.2d 239, 244 (Pa. Cmwlth. 1999). “Whether the facts found by the WCJ reflect that a party has met its burden of proof in a
workers ’ compensation proceeding is a conclusion of law” subject to our p lenary
review. Meadow Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer) , 894 A.2d 214, 217 (Pa. Cmwlth. 2006).

7 “ [ T ] his Court may affirm on grounds different than those relied upon by the court or agency below if such grounds for affirmance exist.” Motor Coils MFG/WABTEC v. W orkers’ Compensation Appeal Board (Bish) , 853 A.2d 1082, 1087 n.9 (Pa. C mwlth. 2004)

.18

The WCJ found that Claimant was not capable of performing the positions Employer had open between September 1 3 , 2012 and February 21, 2013. (FOF ¶ 11.) This finding was based on the following evidence and credibility
determinations. Office Manager testified that Claimant was not physically or vocationally qualified for the secretarial job because secretaries need to quickly type letters and answer phones. (Office Manager ’s Dep. at 38

- 39 , R.R. at 73a.) Office Manager’s testimony that the secretarial position was not within Claimant’s restrictions was corroborated by Claimant’s own testimony that he does not know how to type , use computers , and has never used a phone in a professional manner. (Hr’g Tr. at 9, 12, 17, R.R. at 40a, 43a, 48a.) Office Manager also testified that
Claimant w as not physically capable of performing the janitorial job open during
the relevant dates because that position requires maneuvering a heavy bucket of

water , possibly weighing over fifty pounds, in a fast

- pac ed environment. (Office Manager ’s Dep. at 26

- 2 9, R.R. at 70a.) Dr. Osterman, Claimant’s expert medical
witness , released Claimant for sedentary to light

- duty work and testified that Claimant’s injuries preclud ed him from lifting , pushing , and pulling more than twenty pounds. (Osterman ’s Dep. at 13, R.R. 189a.) The WCJ found Office Manager’s testimony “entirely credible and persuasive. ” (FOF ¶ 11 .) Thus, we conclude that the WCJ’s finding that Claimant was not capable of performing the secretarial and janitorial positions open at some point between September 1 3 , 2012 and February 21, 2013 is supported by substantial evidence. In light of the WCJ’s supported findings, w e hold that Employer met its burden to prove that it had no open positions between September 14 , 2012 and February 21, 2013 that Claimant was capable of performing

. Ac cordingly , the Board did not err by allowing Emp loyer to present evidence regarding Claimant’s earning power

.19

Claimant next argues that the Board erred by not considering Employer’s obligations under Section 12112 of the ADA and concluding that Employer’s ADA obligations are not relevant to a Section 306(b)(2) analysis

. Claimant argues that , even if he was not physically capable of fully performing the tasks associated with the janitorial or secretarial positions, Employer has a responsibility under the ADA
to make reasonable accommodations for disabled employees . We disagree.

The determination at issue in this matter is whether Employer is entitled to
modification of Claimant’s workers’ compensation benefits under the Act. Section 306(b)(2) allows employers to modify benefits if the employer either offers an available job within the claimant’s restriction s or proves , through a labor market
survey, that there were open jobs which the claimant was capable of performing and for which the claimant had a reasonable opportunity to apply. Anderson , 111
A.3d at 246. As recognized by the Board, when establishing a claimant’s earning capacity by a labor market survey, “the relevant considerations are the claimant’s residual productive skill, education, age and work experience.” (Board Op. at 8 (citing Section 306(b)(2)).) The Act does not require an employer to modify a job to comply with an employer’s obligations under the ADA. As such , the Board did
not err when it concluded that Section 12112 of the ADA was not relevant to Claimant’s appeal

.

B. The Always Travel and Best Western Positions Next, Claimant argues that the WCJ’s findings that he was suited for the
Best Western and Always Travel jobs are not supported by substantial evidence.20

Our review reveals that t he following evidence support s the WCJ’s finding that
Claimant is suited for both the Best Western and Always Travel position s

.

Both Dr. Naftulin and Dr. Osterman opined that Claimant was physically capable of performing the se position s . ( Naftulin ’s Dep. at 25, R.R. at 97a;
Osterm an ’s Dep. at 23, R.R. at 199a .) Ms. Terry opined that the Best Western position was vocationally appropriate because it is an entry level front desk clerk job that does not involve data entry and requires very little computer use . (Terry ’s Dep. at 37

- 38, R.R. at 137a

- 38a

. ) The position involves taking and confirming reservations, charging credit card s, and giving patrons room key s . (Terry ’s Dep. at 37, R.R. at 137a.) According to Ms. Terry, Claimant is vocationally appropriate for the Always Travel pos ition because it does not involve data entry and requires no sales experience. (Terry ’s Dep. at 35

- 36, R.R. at 137a

. ) The position is entry level and involves calling customers and offering them travel packages. (Terry ’s Dep. at 35, R.R. at 137a.) Although the position requires the employee to enter
information into a computer , Ms. Terry opined that the position was within
Claimant ’s capabilities and that training was provided. (Terry ’s Dep. at 35, R.R. at 137a.)

Clai mant’s argument is essentially that his vocational expert, Mr. Mohn, who opined that Claimant is not suited for the Best Western and Always Travel positions , is correct and the opinion of Employer’s expert, Ms. Terry, is wrong. The WCJ rejected Mr. Mohn’s opinion that Claimant is not suited for the Best Western and Always Travel positions because Mr. Mohn was not fully informed as to Claimant’s capabilities ; specifically, Mr. Mohn was not aware of Claimant’s21

ability to take a test on the computer. (FOF ¶¶ 10, 14.) Based on Ms. Terry’s testimony that these positions were within Claimant’s limited experience with computers, the WCJ found Ms. Terry’s testimony credible. (FOF ¶¶ 7, 13.) As discussed above, credibility determinations and “evidentiary weigh t are the province of the WCJ,” not this Court. Anderson , 111 A.3d at 245. Accordingly , we conclude that the WCJ’s finding that Claimant was capable of performing the Best Western and Always Travel positions is supported by substantial evidence.

Claimant next argues that the Board erred when it a ccepted the WCJ’s finding that he was suited for the Best Western and Always Travel positions because those position s were of the same type, and required the same skills and capabilities, as the secretaria l job available with Employer that was not offered to Claimant. Claimant argues that the WCJ’s factual findings

– that Claimant is incapable of performing the secretarial position at Employer, but is capable of performing similar work with other employers

– are in conflict and impossible to sustain. According to Claimant, either he is capable of performing all of the secretarial jobs, or he is capable of performing none of them

.

Claimant’s argument is unavailing because the WCJ found that Claimant

wa s only capable of performing the Best Western and Always Travel positions which, in contrast to the internal secretarial position, required minimal computer skills

. (FOF ¶ 13.) The WCJ rejected the positions at Telerx and Paychex because
the Telerx posit ion w as “more complicated” than the other positions and, in the case of the Paychex position, “require [ d ] more computer use than the other positions.” (FOF ¶ 13.) Conversely, the Best Western and Always Travel jobs22

required less data entry and computer s kills. (FOF ¶¶ 13

- 14.) Further, the WCJ found, based on Office Manager’s and Dr. Osterman’s testimony, that Claimant

was n ot suited for the secretarial position at Employer because it involved “high production data entry.” (FOF ¶ 11.) Because w e hold a bove that the WCJ’s finding that Claimant was not vocationally suited for the secretarial position with Employer was supported by substantial evidence of record, we conclude that the
Board did not err when it affirmed the WCJ’s finding that Claimant was

vo cationally suited for the Best Western and Always Travel positions , but not the secretarial position with Employer.

C. Reasonable Opportunity to Apply Finally, Claimant argues that the Board erred when it concluded that
Claimant had a reasonable opportunity to apply for the four positions identified in
the labor market survey . Claimant contends that the WCJ decided his case prior to the Supreme Court changing the law governing the issue of job availability in Phoenixville Hospital . Claimant argu es that, pursuant to Phoenixville Hospital , we should remand this case so that he may present testimony on the issue of his attempts to apply for the positions identified by the labor market survey and for the
WCJ to make related factual findings. Employe r argues in response that Claimant’s reliance on Phoenixville Hospital is misplaced because Claimant
neither testified that he applied for any of the identified position s , nor that he was
told that any of the position s w ere no longer available.

In Phoe nixville Hospital , the Supreme Court interpreted Section 306(b)(2) of
the Act and concluded that23

expert opinion evidence under Section 306(b) [(2)] functions not only as a means of demonstrating that there are open jobs that exist within the claimant’s li mitations, but also as a mechanism for providing the claimant with notice of the existence of these jobs, which thus provides a serious op portunity to secure employment.

Phoenixville Hospital , 81 A.3d at 844. According to the Supreme Court, Section 306(b) (2) requires that the jobs identified remain open for “such time as the
claimant is afforded a reasonable opportunity to apply for them.” Id. at 845.
E vidence showing a claimant unsuccessfully applied for the positions listed in a
labor market surv ey could be used to rebut the employer ’ s argument that identified positions were available. Id. at 846. However, as the Supreme Court noted, “it would only be the motivated claimant who would be able to offer admissible evidence regarding these matters.” Id. at 846 n.19. “Not all claimants would pursue employment opportunities presented to them.

. . .” Id.

We agree with the Board that the Supreme Court’s holding in Phoenixville Hospital is inapplicable . (Board Op. at 9.) We reached the same conclu sion in
Privette

- James v. Workers’ Compensation Appeal Board (University of Pennsylvania) (Pa. Cmwlth., No. 1906 C.D. 2013, filed June 5, 2014)

. 8 The
claimant in Privette

- James argued that h er case should be remanded because there were no findings of fact demonstrating that any of the jobs id entified in a labor market survey were actually open and available. Id. , slip op. at 12

- 13. We disagreed and held that the “[c]laimant’s reliance o n Phoe nixville Hospital is misplaced for the reason that [the c]laimant never applied for any of the positions

8 Pursuant to Section 414 of this Court’s Internal Operating Procedures, an unreported panel decision issued by this Court filed after January 15, 2008 may be cited “ for its persuasive value, but not as binding prec edent.” 210 Pa. Code § 69.414.24

identified in the labor market survey or disputed whether they were actually available for a reasonable time.” Id. , slip op. at 16.

In the instant matter , Claimant does not contest that the positions identified by the labor market survey were actually open during the relevant time period

. T he WCJ made a specific finding that three of the positions identified by the labor market survey remained open between January 17, 2013 and April 2, 2013 and that Claimant chose to not apply because he did not believe he could perform the jobs. (FOF ¶ 12.) The WCJ ’s fi nding is supported by the testimony and reports of both
Ms. Terry and Mr. Mohn. According to Mr. Mohn’s report
, both the Best Western and Always Travel positions were available as of April 2, 2013. ( Mohn ’s Dep. , Ex. 2 at 6

- 8, C.R. at Item C

- 3. ) Because Claimant does not dispute his own
witness ’ testimony that the Best Western and Always Travel p ositions were open during the relevant period, Phoenixville Hospital does not compel a remand.

For the foregoing reasons, the Board’s Order is affirmed.

________________________________ RENÉE COHN JUBELIRER, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Curry, : : Petitioner :

: v. : No. 82 C.D. 2015
: Workers’ Compensation Appeal : Board (Brian’s Professional Cleaning : and Restoration and State Workers’ : Insurance Fund), : : Respondents :

O R D E R

NOW , September 10, 2015 , the Order of the Workers’ Compensation Appeal Board, entered in the above

- captioned matter, is AFFIRMED

.

________________________________ RENÉE COHN JUBELIRER, Judge