IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carl Sadler, :

Petitioner :

 :

v. : No. 1294 C.D. 2020

 : Submitted: June 4, 2021

Philadelphia Coca-Cola (Workers’ :

Compensation Appeal Board), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY

JUDGE COHN JUBELIRER FILED: January 7, 2022

Carl Sadler (Claimant) petitions for review of the December 1, 2020 Order of 

the Workers’ Compensation Appeal Board (Board) affirming the May 31, 2019 

Decision of a Workers’ Compensation Judge (WCJ) that granted the Petitions for 

Modification (Modification Petition) and Termination (Termination Petition) filed 

by Philadelphia Coca-Cola (Employer) and denied and dismissed the Petitions for 

Modification, Penalty, Reinstatement, and Review Benefit Offset filed by Claimant. 

As a result, the WCJ modified Claimant’s benefits to reflect that Claimant had an 

earning capacity of $520.00 per week and partially terminated Claimant’s workers’ 

compensation (WC) benefits for work-related injuries from which the WCJ found 

Claimant had fully recovered. As for Claimant’s Petitions, the WCJ concluded that 

Employer had not improperly taken or handled an offset of Claimant’s WC benefits 

for his receipt of Social Security old age benefits. On appeal, Claimant argues:

1

1 We have rearranged and consolidated Claimant’s arguments for ease of discussion.
2

(1) Section 204(a) of the Workers’ Compensation Act2(Act), 77 P.S. § 71(a), which

sets forth an offset for the receipt of Social Security old age benefits, is 

unconstitutional; (2) the WCJ erred in relying on the labor market survey (LMS), 

earning assessment, and deposition testimony of Employer’s vocational expert, 

Michael Smychynsky; (3) the WCJ erred in not considering Claimant’s status as a 

Class II felon when determining whether a position was appropriate and/or open and 

available to Claimant; and (4) the WCJ’s Decision did not meet the reasoned

decision requirements of Section 422(a) of the Act, 77 P.S. § 834. 

I. BACKGROUND

A. Current Petitions

On July 2, 2012, after working for Employer for just four weeks, Claimant 

sustained the following work-related injuries, which Employer accepted: “a right 

pinky finger amputation,” “distal radioulnar joint subluxation, ECU tendinopathy, 

pisotriquetral joint arthritis resulting in pisiform excision, right wrist DRUJ 

resection” (upper extremity injuries), and “right transverse process fractures of L2-

3 and L4, contusion to the right gluteal region/right hip, fracture of the right 6th rib 

and right leg radiculitis, . . . and low back sprain” (non-upper extremity injuries). 

(WCJ’s Decision, Findings of Fact (FOF) ¶¶ 1-2.) Claimant received “temporary 

disability benefits in the amount of $652.00 based on an average weekly wage 

[(AWW)] of $978.00.”3 (Id. ¶ 1.) 

2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 71(a).

3 Claimant would later file a Petition to Review challenging the calculation of the AWW, 

and Employer would later file a Petition to Suspend Claimant’s WC benefits for a period to account 

for the 525 days during which Employer paid Claimant while he was incarcerated prior to trial due 

to his inability to post bail, was convicted, and sentenced to time served. In Sadler v. Workers’ 

Compensation Appeal Board (Philadelphia Coca-Cola), 210 A.3d 372, 379, 383-84 (Pa. Cmwlth. 

(Footnote continued on next page...)
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Employer filed the Termination Petition on November 9, 2016, asserting that 

Claimant was fully recovered from the non-upper extremity injuries based on a

September 15, 2016 Independent Medical Examination (IME) by Armando Mendez, 

M.D. Employer later filed the Modification Petition on April 27, 2017, averring that 

based on Smychynsky’s vocational interview and earning power assessment

“Claimant had a weekly earning capacity of $520.00 as of March 31, 2017.” (Id.

¶ 4.) Claimant filed an Answer to the Modification Petition, denying all of the 

material allegations, maintaining that Claimant remained totally disabled, and 

asserting that the results of Smychynsky’s earning capacity assessment could not be 

considered because Smychynsky and Employer’s carrier did not comply with the 

Bureau of Workers’ Compensation Regulations (Regulations). (Id. ¶ 4; Certified 

Record (C.R.) Item 6.) 

On October 30, 2017, Employer’s third-party administrator (TPA) issued an

Amended Notice of Workers’ Compensation Benefit Offset (Amended Notice of 

Offset)4 advising that an “offset would be taken due to Claimant’s receipt of Social 

Security old age benefits,” which would include a period of recoupment to recover 

an overpayment of WC benefits. (Id. ¶ 9.) Claimant filed various petitions, 

including the Petition to Review Benefit Offset (Review Petition), asserting that the 

offset violates the Act, Employer failed to exercise due diligence when it did not 

2019) (Sadler I), this Court reversed the WCJ’s decision granting the suspension petition and 

remanded for consideration of Claimant’s probable overtime. The Supreme Court affirmed in

Sadler v. Workers’ Compensation Appeal Board (Philadelphia Coca-Cola Co.), 244 A.3d 1208 

(Pa. 2021) (Sadler II). While Employer was unsuccessful in obtaining the suspension of 

Claimant’s WC benefits, litigation on Claimant’s challenge to the AWW is ongoing. 

4 The TPA issued a prior notice of offset, to which Claimant filed multiple petitions in 

response. (FOF ¶¶ 5, 7.) Employer later acknowledged that the offset amounts were incorrect, 

which led to the issuance of the Amended Notice of Offset. (Id. ¶ 5.)
4

“send Claimant LIBC Employment Verification forms” periodically, and Section 

204(a) of the Act is unconstitutional. (Id. ¶ 10.) Employer denied the allegations. 

B. Proceedings Before the WCJ

All of the Petitions were assigned to the WCJ, who held hearings at which 

Employer and Claimant presented the following evidence. 

1. Employer’s Evidence

Dr. Mendez, who is a board-certified orthopedic spine surgeon, performed 

IMEs on Claimant on May 22, 2015, and September 15, 2016, and testified by 

deposition as follows.5 Dr. Mendez examined Claimant’s non-upper extremity 

injuries, reviewed Claimant’s medical records and diagnostic records, and observed 

no objective evidence to support Claimant’s ongoing complaints. Thus, Dr. Mendez 

opined that Claimant’s non-upper extremity injuries had resolved and required no

further treatment, and Claimant could return to work at the same capacity as before 

the relevant work injuries. (Id. ¶ 13(g), (j).) In addition, “Dr. Mendez would not 

impose any restrictions on Claimant’s ability to return to work with regard to [those] 

diagnoses[.]” (Id. ¶ 13(j).) Accordingly, Dr. Mendez completed an Affidavit of 

Recovery for the non-upper extremity injuries. (Id. ¶ 13(k).) Dr. Mendez noted, on 

Claimant’s physical capacities form, that there could be restrictions placed on 

Claimant by other physicians for the upper extremity injuries. In addition, Dr. 

Mendez observed that Claimant had a slightly antalgic gait at the September IME, 

which Dr. Mendez attributed to Claimant’s “left knee not fully extending” and that 

Claimant reported having “unrelated left knee arthroplasty.” (Id. ¶ 13(i).) 

5 Dr. Mendez’s deposition testimony is found at Item 34 of the Certified Record and is 

summarized in Finding of Fact 13.
5

Stephanie Sweet, M.D., “a board-certified orthopedic surgeon with an added 

qualification in surgery of the hand,” testified by deposition in support of 

Employer’s Modification Petition as follows.6 (Id. ¶ 14(a).) Dr. Sweet performed 

two IMEs on Claimant. The June 23, 2015 IME revealed recent right-hand surgery 

related to the work injury from which Claimant was still recovering. Dr. Sweet 

opined that therapy for the hand was proper at that time, Claimant was continuing to 

improve, and light-duty work was appropriate. (Id. ¶ 14(e).) At the August 2, 2016 

IME, Claimant advised Dr. Sweet that the surgery had helped, Claimant had been 

discharged from the care of the hand surgeon, and Claimant could use the right hand 

to do things so long as it was not overused. Based upon the physical examinations

and a review of updated medical records, Dr. Sweet concluded that Claimant had 

reached maximum medical improvement for the upper-extremity injuries and 

“permanent light-duty status was appropriate.” (Id. ¶ 14(h).) Dr. Sweet described 

Claimant’s physical capacities as being “up to 20 pounds of either lifting or carrying 

on an occasional basis and 10 pounds regularly” and being able to “push and pull 

about 10 pounds with anything that is repetitive of force with the right hand.” (Id.) 

Dr. Sweet also testified about reviewing the job analyses provided by Smychynsky, 

as set forth below.

Smychynsky, “a vocational rehabilitative consultant[,] . . . forensic vocational 

economist,” and certified rehabilitation counselor with 28 years of experience, 

testified by deposition.7(Id. ¶ 15(a).) Prior to Smychynsky testifying, Claimant 

objected to the results of that earning power assessment being considered based on

6 Dr. Sweet’s deposition testimony is found at Item 35 of the Certified Record and is 

summarized in Finding of Fact 14.

7 Smychynsky’s deposition testimony is found at Items 32 and 33 of the Certified Record 

and is summarized in Finding of Fact 15. 
6

various alleged violations of the Regulations. (Smychynsky’s Deposition (Dep.) at 

5.) Smychynsky then testified as follows. There is no financial interest between 

Smychynsky and Smychynsky’s company and Employer or the TPA. Smychynsky 

“provided to Claimant a disclosure form indicating the purpose of the evaluation and 

. . . notify[ing] Claimant of the lack of counselor-client relationship, as required by 

the . . . Act.” (Id. ¶ 15(d).) In assessing whether work with Claimant’s medical 

releases and vocational abilities was available, Smychynsky reviewed the medical 

reports of Dr. Mendez and Dr. Sweet and the Notices of Ability to Return to Work

that Employer subsequently sent. In addition, Smychynsky interviewed Claimant 

and obtained information about Claimant’s medical condition and treatment, 

education, military service, work history, computer skills, driving ability, and 

hobbies, including those which required use of the injured right hand. Following the 

interview, Smychynsky completed a transferable skills analysis and determined that 

Claimant’s vocational alternatives “were cashier jobs and jobs like that of a security 

guard, a traffic control worker[,] and some assembly positions.” (Id. ¶ 15(i).) 

Smychynsky checked with Employer to see if there were any positions within 

Claimant’s restrictions and abilities available and there were none. Smychynsky 

performed the LMS to find appropriate positions, identified 23 specific positions, 

and performed specific job analyses for 5 of those positions to determine if they were 

consistent with Claimant’s work releases. 

These five positions were as follows: (1) a full-time, light-duty position as “a 

security gate attendant with G4S Security Services” paying $13.00 per hour, which 

allowed for standing, sitting, walking, and driving, change of position as needed, and 

minimal use of upper extremities; (2) a full-time, light-duty flagger position with 

Flagger Force paying $11.50 per hour, which required lifting of up to 25 pounds and 
7

walking and standing during the workday; (3) a full-time, light-duty position as a 

production associate with US Vision/Recaf Optical (US Vision) paying between

$12.00 and $14.00 per hour, which had minimal lifting and was mostly sitting, and 

could be modified to reduce the lifting requirements from 25 pounds to 20 pounds; 

(4) a full-time or part-time, sedentary position as an offsite cashier and van 

dispatcher for Smart Park paying $10.00 per hour; and (5) a full-time or part-time, 

sedentary to light-duty position as a gate attendant with St. Joseph’s University 

paying $12.00 per hour that required some standing and walking and allowed for the 

employee to change positions, but also required a security clearance, which, 

Smychynsky acknowledged, could affect Claimant’s ability to obtain this position 

due to Claimant’s post-work-injury conviction of a Class II felony. (FOF ¶ 15(k), 

(o), (bb), (cc); Smychynsky’s Dep. Part 1 at 39-40, 42-43, 45-46, 48, 51.) 

Smychynsky sent job analysis forms for the five positions to Dr. Mendez and Dr. 

Sweet. Smychynsky received the forms back from Dr. Mendez, of which the WCJ 

found that Dr. Mendez had approved the GS4 Security Services, St. Joseph’s

University, and Smart Park positions, but approved the US Vision position only if

modified to reduce lifting from 25 pounds to 20 pounds. (FOF ¶ 15(k), (o), (bb), 

(cc); Smychynsky’s Dep. Part 1 at 39-40, 42-43, 45-46, 48, 51; Smychynsky’s Dep. 

Part 2, Ex. Smychynsky-5.) Dr. Sweet testified that the positions were within 

Claimant’s restrictions, except that the positions with US Vision and Flagger Force 

required modification to reduce the lifting requirement from 25 pounds to 20 pounds. 

(FOF ¶ 14(i)-(m).)

Smychynsky observed the positions, directly communicated with the five

employers, and confirmed the continued availability of the positions between March 

28, 2017, and April 12, 2017. In Smychynsky’s opinion, these positions were 
8

“vocationally appropriate given Claimant’s education and vocational history” and 

were open and available at the time of the earning capacity evaluation. (Id.

¶ 15(hh).) Based on the identified positions, “Smychynsky opined that Claimant 

ha[d] an entry-level earning capacity of up to $520.00 per week” using the “highest 

paying position for 40 hours per week.” (Id. ¶ 15(ii).) Smychynsky acknowledged, 

however, that if Claimant’s conviction was considered, “the security positions would 

likely not be appropriate for Claimant.” (Id. ¶ 15(jj).)

2. Claimant’s Evidence

Claimant offered the deposition testimony of Jed Shapiro, M.D., a boardcertified anesthesiologist with whom Claimant treats for pain management, who 

testified as follows.8 Dr. Shapiro provides outpatient chronic pain management and 

approximately half of Dr. Shapiro’s practice is the treatment of lumbar spine injuries. 

Dr. Shapiro began treating Claimant on August 20, 2015, has continued to do so 

through August 2017, and “considers himself Claimant’s primary treating physician 

for Claimant’s lumbar spine injury of July 2, 2012.” (Id. ¶ 16(b).) At the initial 

evaluation, Claimant complained of neck and low back pain, as well as pain from 

the low back into the right leg and ankle that Dr. Shapiro opined were consistent 

with injuries to the L4-5 nerve roots. The physical examination results indicated 

nerve root irritation and problems with the lower lumbar spine. Dr. Shapiro 

evaluated Claimant multiple times between August 2015 and August 2017, with 

Claimant continuing to complain of low back pain and similar results during the 

physical examinations. Based on the examinations and review of Claimant’s 

medical records and diagnostic testing of the lumbar and cervical spine, Dr. Shapiro 

8 Dr. Shapiro’s deposition testimony is found at Item 27 of the Certified Record and is 

summarized in Finding of Fact 16.
9

opined that Claimant was not fully recovered from the non-upper extremity injuries, 

continued treatment was needed for those injuries, and Claimant could not return to 

the time-of-injury position with Employer. Dr. Shapiro released Claimant “to work 

with restrictions to avoid prolonged sitting and standing, frequent bending, pushing, 

pulling[,] and to refrain from . . . lifting greater than 10 pounds.” (Id. ¶ 16(m).) Of 

the five positions, Dr. Shapiro would only approve the Smart Park cashier position, 

provided that Claimant worked two to four hours per day a few days a week to start 

and then gradually increased the hours as Claimant could tolerate.

Claimant also offered the deposition testimony of John Dieckman, “the 

assistant director of vocational services at Proto-Worx, a disability management 

company,” and certified rehabilitation counselor and disability management 

specialist, who testified as follows.9(Id. ¶ 17(a).) Dieckman reviewed 

Smychynsky’s evaluation and the identified positions approximately eight or nine 

months after that LMS. Dieckman interviewed Claimant on October 31, 2017, 

discussing Claimant’s background, felony conviction, work history, ability to drive, 

and limitations due to the multiple surgeries on Claimant’s right hand. Citing Dr. 

Shapiro’s reports and restrictions and Claimant’s interview, Dieckman believed 

Claimant had a limited ability to work and “need[ed] a position where [Claimant 

could] sit and stand and change positions” and “could probably lift 10 pounds but 

not more than that.” (Id. ¶ 17(e).) Dieckman reviewed the positions identified by 

Smychynsky, contacted the employers’ representatives (some of which were 

unavailable or had left), and concluded that the positions were inappropriate, 

inconsistent with the restrictions of Dr. Shapiro and Dr. Mendez, or would be 

unavailable because of Claimant’s conviction. Dieckman additionally questioned 

9 Dieckman’s deposition testimony is found at Item 28 of the Certified Record and is 

summarized in Finding of Fact 17.
10

whether some of these positions’ physical requirements were as Smychynsky 

described, would have been available at the pay levels asserted, and/or were

permanent or guaranteed positions. 

Claimant testified before the WCJ on February 15, 2018, as follows.10 

Claimant described the July 2, 2012 work incident, the injuries sustained, the related 

ongoing medical treatment, and his ongoing problems with the low back, right hip, 

right leg, and right foot and ankle, as well as the right wrist and hand. Claimant 

acknowledged having received Dr. Mendez’s and Dr. Sweet’s return to work 

releases and the Notices of Ability to Return to Work. Claimant discussed returning 

to work with Dr. Shapiro, who, according to Claimant, placed a 10-pound carrying 

restriction and limited Claimant’s use of the right hand. Upon receiving

Smychynsky’s LMS, even though he did not feel the jobs were consistent with Dr. 

Shapiro’s restrictions, Claimant applied and received some responses, but no job 

offers. (Id. ¶ 18(h); Ex. C-4.) Claimant also applied for other full-time positions at

that time, despite being uncertain that they could be performed without 

accommodation by the employers and received no job offers from these attempts. 

Claimant acknowledged he was incarcerated after the work injury and pleaded guilty 

to a Class II felony. (Id. ¶ 18(k).) Claimant advised the potential employers of this 

conviction, which imposes “restrictions on how close he can be to certain public 

facilities and he is not permitted to be around certain types of people.” (Id.) 

Claimant is receiving Social Security old age benefits, which have reduced his WC 

benefits. Claimant also submitted paystubs showing Employer’s withholding for 

Social Security and Medicare. (Id. ¶ 19; Ex. C-3.)

10 The February 15, 2018 hearing transcript is found at Item 24 of the Certified Record, 

and Claimant’s testimony is summarized in Finding of Fact 18.
11

C. The WCJ’s Decision

In addition to the above findings of fact, the WCJ made the following

credibility determinations. The WCJ found Dr. Mendez’s testimony credible and 

persuasive and supported the finding that “Claimant is capable of gainful 

employment and is fully recovered from [the] non-upper[]extremity . . . injuries,”

citing Dr. Mendez’s credentials, comprehensive medical evaluations, the lack of 

objective findings in Claimant’s physical examination making Claimant’s 

complaints of pain inconsistent, and the lack of support in the objective testing. 

(FOF ¶ 21.) The WCJ also found Dr. Sweet’s testimony credible and persuasive and 

supported the finding that “Claimant is capable of gainful employment within [Dr. 

Sweet’s] restrictions concerning Claimant’s right upper extremity injury,” citing Dr. 

Sweet’s credentials, comprehensive examinations, and the fact that those opinions 

were unrebutted. (Id. ¶ 22.) In contrast, the WCJ found Dr. Shapiro’s testimony 

less credible than that offered by Dr. Mendez and Dr. Sweet, citing the facts that Dr. 

Shapiro does not treat and could offer no opinion on Claimant’s upper extremity 

injuries, is a pain management physician who relies on his patients’ subjective 

complaints of pain, provided work restrictions that changed when presented with 

positions that met the original restrictions, and the additional restrictions were not 

mentioned even by Claimant as having been imposed. (Id. ¶ 24.)

As for the vocational experts, the WCJ found Smychynsky’s testimony 

“credible in its entirety,” noting Smychynsky’s comprehensive interview of 

Claimant, review of the medical records, personal observation of the identified 

positions, and concession when certain of the positions identified were not consistent 

with Claimant’s medical restrictions. (Id. ¶ 23.) Thus, the WCJ accepted 

Smychynsky’s opinion “that Claimant is capable of earning $520.00 per week.” 
12

(Id.) The WCJ did not find Dieckman’s testimony credible or persuasive, stating

that although “Dieckman criticized [] Smychynsky’s evaluation,” Dieckman “did 

not contact the identified employers until eight months after the [LMS] was 

performed,” relied on Dr. Shapiro’s two- to four-hour per day restriction, “which is 

not realistic for most employers,” and on Dr. Mendez’s restrictions but “Dr. Mendez 

provided no restrictions on Claimant’s ability to return to work.” (Id. ¶ 25.) Finally, 

the WCJ noted that Dieckman focused on Claimant’s felony conviction when that 

conviction occurred after the work injury and that “Employer should not be hindered 

by Claimant’s subsequent behavior and conviction.” (Id.)

The WCJ found Claimant’s testimony “not credible or persuasive on the 

relevant issues.” (Id. ¶ 26.) According to the WCJ, notwithstanding Claimant’s 

release to work by Dr. Shapiro, he “only applied for jobs during the month 

immediately following [the] issuance of the [LMS]” and cited the “conviction as to 

why many of the positions are not available.” (Id.) The WCJ explained “[i]t is not 

Employer [that] should be hindered by that conviction which occurred after the work 

injury,” “[t]he consequences of this felony belong to Claimant.” (Id.)

Based on these credibility determinations, the WCJ found, in pertinent part:

d) As of March 31, 2017, there were numerous employment positions 

available that fit within Claimant’s physical and vocational 

capabilities as outlined by . . . Smychynsky.

e) Claimant’s earning power, based on the positions identified by . . .

Smychynsky, is $520.00 per week.

f) Claimant has fully recovered from [the non-upper extremity] . . .

injuries . . . .

g) Employer has been appropriately taking a credit for Claimant’s 

receipt of Social Security old age benefits.
13

h) There is no bar to Employer’s right to a credit for Claimant’s receipt 

of Social Security old age benefits due to Claimant only working for 

Employer for four weeks.

(Id. ¶ 27(d)-(h).) For these reasons, the WCJ concluded that Employer had met its 

burdens of proof on the Modification and Termination Petitions and Claimant did 

not establish that the offset for Claimant’s receipt of Social Security old age benefits 

was inappropriate or handled improperly. (WCJ’s Decision, Conclusions of Law

(COL) ¶¶ 2-4.) Thus, the WCJ granted the Modification and Termination Petitions 

and denied Claimant’s Review Petition.11

D. The Board’s Opinion

Claimant appealed to the Board, asserting many of the same arguments as he 

makes before this Court. The Board rejected Claimant’s argument that “Section 

204(a) violates the [e]qual [p]rotection [c]lause of the Pennsylvania Constitution,

12

explaining that it presumed the Act’s provisions are constitutional and that this Court

previously held that Section 204(a)’s Social Security old age benefits offset did not 

violate equal protection. (Board Opinion (Op.) at 5 (citing Caputo v. Workers’ 

Comp. Appeal Bd. (Commonwealth of Pa.), 34 A.3d 908, 919 (Pa. Cmwlth. 2012)).)

The Board also held that the WCJ did not err in finding the conviction not 

relevant because “[l]imitations from non-job-related injuries are not a factor to be 

considered” to establish earning power under Section 306(b) of the Act, 77 P.S. 

§ 512. (Id. at 18 (citing Markle v. Workmen’s Comp. Appeal Bd. (Caterpillar

11 The WCJ also denied Claimant’s other Petitions, which Claimant does not challenge.

12 The Fourteenth Amendment to the United States Constitution provides, in pertinent part, 

that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” 

U.S. CONST. amend. XIV. Article I, section 1 of the Pennsylvania Constitution states that “[a]ll 

men are born equally free and independent, and have certain inherent and indefeasible rights, 

among which are those of enjoying and defending life and liberty, of acquiring, possessing and 

protecting property and reputation, and of pursuing their own happiness.” PA. CONST. art. I, § 1.
14

Tractor Co.), 661 A.2d 1355, 1358 (Pa. 1995)).) The Board also rejected Claimant’s 

argument that Smychynsky’s testimony and earning power assessment should not 

have been considered due to a violation of the Regulations, finding Claimant did not 

preserve this issue by submitting it in a separate writing to the WCJ as required by 

Section 131.66(b) of the Special Rules of Administrative Practice and Procedure 

Before WCJs (WCJ Rules), 34 Pa. Code § 131.66(b), as Claimant’s counsel had 

agreed to do during the deposition. (Id. at 19-20 (citing Degraw v. Workers’ Comp. 

Appeal Bd. (Redner’s Warehouse Mkts., Inc.), 926 A.2d 997, 1001 (Pa. Cmwlth. 

2007)).)13 

Finally, the Board rejected Claimant’s argument that the WCJ’s Decision was 

not reasoned because the Decision summarized the evidence, made credibility 

determinations that were explained and did not leave the WCJ’s reasoning up to the 

imagination, made the necessary findings and conclusions to support the ultimate 

decision, and viewing the credibility determinations as a whole, such determinations 

were not arbitrary and capricious. The Board found no error in rejecting Dieckman’s

testimony because it was based on the later-conducted LMS, and not made during

the time period relevant to the Modification Petition. The Board also disagreed with

Claimant’s argument that there was inconsistency in Dr. Mendez’s testimony that 

Claimant was fully recovered from the non-upper extremity injuries and the on-thejob analyses forms, which noted that several jobs did not meet Claimant’s physical 

restrictions. The Board held that Dr. Mendez clearly opined that Claimant was fully 

recovered from the non-upper extremity injuries and could return to work with no 

restrictions related thereto but also recognized that “[s]ome restrictions may be 

placed by other physicians for upper extremity injuries,” which is what occurred 

13 Nonetheless, the Board stated that it would not consider this to be an error. (Board Op.

at 21 n.9.)
15

here. (Id. at 24 (quoting Ex. D-Mendez-3).) The Board stated that Dr. Mendez did 

not testify about any of the positions and that, other than the notes on the job 

analyses, all other evidence supported full recovery. The Board disagreed that the 

WCJ had to explain how these notes fit into the credibility determinations because 

the WCJ is not required to give a line-by-line analysis of each piece of evidence and 

statement made. Based on the findings made and the explanations given, the Board 

held that the WCJ’s Decision provided for effective appellate review and, therefore, 

satisfied the requirements of Section 422(a) of the Act. 

Accordingly, the Board affirmed the WCJ’s Decision and Order. Claimant 

now petitions this Court for review. 14

II. DISCUSSION

A. Whether Section 204(a) of the Act is Unconstitutional.

1. Parties’ Arguments

Claimant argues that the WCJ erred in denying the Review Petition because 

Section 204(a)’s automatic 50% offset for the receipt of old age benefits violates the

Equal Protection Clauses of the United States and Pennsylvania Constitutions

because it does not pass the rational relationship test. According to Claimant, 

Section 204(a) creates three classifications of injured workers, those who receive: 

(1) old age benefits, (2) severance benefits, and (3) pension benefits. Unlike 

severance and pension benefits, whose offset is based on the benefits or 

contributions made by the employer directly liable for the payment of WC benefits,

Claimant argues that the offset for injured workers who receive Social Security old 

14 This Court’s scope of review “is limited to determining whether necessary findings of 

fact are supported by substantial evidence, whether an error of law was committed, or whether 

constitutional rights were violated.” Elberson v. Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 936 

A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007).
16

age benefits after the work injury is not bound by how much the employer funds 

those benefits. Claimant argues the interest found to support the severance and 

pension offset, duplicative benefits for the same loss of earnings, is not present 

where, as here, the employee has only worked for an employer for a short time and

the short-term employer was not responsible for funding the bulk of the employee’s 

old age benefits. Claimant argues that Caputo did not consider whether the 

difference between the three types of offset violated equal protection. Claimant

further asserts the amount an employer funds an employee’s Social Security old age 

benefits is readily discernable from an employee’s pay stubs and providing an offset 

equal to that amount provides the desired cost containment result without being 

unduly burdensome on the injured, short-term worker.

Employer responds that there is no equal protection violation because Section 

204(a) does not create a classification for an unequal distribution of benefits or 

imposition of burden, and, without a classification, there can be no equal protection 

violation. McCusker v. Workmen’s Comp. Appeal Bd. (Rushton Mining Co.), 639 

A.2d 776, 778 (Pa. 1994). Employer notes that all three benefit offset provisions 

have been found not to violate the equal protection clause per Kramer v. Workers’ 

Compensation Appeal Board (Rite Aid Corp.), 883 A.2d 518 (Pa. 2005) (severance), 

Caputo, 34 A.3d at 919 (old age benefits), and Mosley v. Workers’ Compensation 

Appeal Board (City of Pittsburgh), 937 A.2d 607 (Pa. Cmwlth. 2007) (pension). 

Employer argues that, assuming arguendo that there is a classification, Claimant’s 

challenge still fails because there is a legitimate state interest met in this case – cost 

containment for employers, and the classification, the 50% offset, is reasonably 

related to the articulated state interest, as the Court held in Caputo. According to 

Employer, Section 204(a) was “[c]arefully crafted, [so that] each offset entitle[s] the 
17

employer to decrease its [WC] liability based on other payments that the injured 

worker would receive based on non-injury considerations,” and “the Legislature 

chose a 50% offset for the [S]ocial [S]ecurity ‘old age’ benefits as a fair 

approximation of an employer’s contribution as noted [in Caputo].” (Employer’s 

Br. at 18.) Employer asserts that severance and pension benefit offsets are, “on the 

other hand, . . . calculated based upon the occasioned employment benefits paid to 

the employer directly liable for payment of compensation” and “[i]t would be unfair 

for an injured worker to go on [WC] a short time before he/she retires and collects 

more on pension, [WC,] and Social Security with absolutely no intentions of 

returning to work.” (Id. at 18-19.) 

2. Analysis

Section 204(a) states, in relevant part: 

Fifty per centum of the benefits commonly characterized as “old age” 

benefits under the Social Security Act (49 Stat. 620, 42 U.S.C. §[§]

301[-1397mm],) shall also be credited against the amount of the 

payments made under sections 108 and 306,[15]except for benefits 

payable under section 306(c): Provided, however, That the Social 

Security offset shall not apply if old age Social Security benefits were 

received prior to the compensable injury. The severance benefits paid 

by the employer directly liable for the payment of compensation and 

the benefits from a pension plan to the extent funded by the employer 

directly liable for the payment of compensation which are received by 

an employe shall also be credited against the amount of the award made 

under sections 108 and 306, except for benefits payable under section 

306(c).

77 P.S. § 71(a). Claimant asserts that employers that take an offset for Social 

Security old age benefits may do so at 50% of those benefits but employers that take 

15 77 P.S. §§ 271, 511-514. Section 108 was added by Section 1 of the Act of October 17, 

1972, P.L. 930.
18

offsets for severance and pension benefits may only do so to the extent that the

employer funded those benefits, which treats claimants differently without a 

legitimate governmental purpose to justify the difference.

In reviewing equal protection challenges, we apply the following principles:

The essence of the constitutional principle of equal protection under the 

law is that like persons in like circumstances will be treated similarly.

However . . . [t]he right to equal protection under the law does not 

absolutely prohibit the Commonwealth from classifying individuals for 

the purpose of receiving different treatment and does not require equal 

treatment of people having different needs. The prohibition against 

treating people differently under the law does not preclude the 

Commonwealth from resorting to legislative classifications 

provided that those classifications are reasonable rather than 

arbitrary and bear a relationship to the object of the legislation.

Kramer, 883 A.2d at 532 (alterations in original) (emphasis added). First, the court 

considers whether the statute creates a classification for the unequal distribution of 

benefits or burdens. Id. 

In Caputo, we addressed an equal protection challenge to the Social Security 

old age benefits offset based on its exclusion of Social Security old age benefits that 

were received prior to the work injury from being offset. Reviewing this provision, 

we determined that Section 204(a) created a legislative classification for the unequal 

distribution of benefits - claimants to whom the offset applies or does not apply -

based on when they began receiving Social Security old age benefits. Caputo, 34 

A.3d at 915. While Employer here asserts that no classification between claimants 

is created, Section 204(a)’s language imposes different offset amounts for different 

claimants based on the claimants’ receipt of a particular type of benefit. These 

offsets affect the amount of WC benefits those claimants receive, just like the 

classification between those claimants whose Social Security old age benefits began 
19

prior to the work injury (no offset) and those whose began after the work injury 

(offset). Thus, we conclude Section 204(a) creates a legislative classification for 

unequal distribution of benefits or burdens. Therefore, we turn to the next step of 

the equal protection analysis, which is to determine the appropriate standard of 

review. McCusker, 639 A.2d at 778. 

There are three levels of review in an equal protection analysis: strict scrutiny, 

applied where the right involved is fundamental or a suspect classification has been 

made; heightened or intermediate scrutiny, applied where the right involved is 

important, but not fundamental, or a sensitive classification is made; or rational 

basis, applied where the alleged equal protection violations do not implicate the 

other standards. Id. The parties agree that the rational basis standard applies. The 

Court’s review of a government regulation related to social welfare benefits, like 

WC benefits, is deferential. McCusker, 639 A.2d at 779. Legislative classifications 

subject to rational basis scrutiny enjoy a strong presumption of validity. Kramer, 

883 A.2d at 534. When applying the rational basis test,

we determine whether the challenged statute seeks to promote any 

legitimate state interest or public value; and if so, we then determine 

whether the legislative classification is reasonably related to 

accomplishing that articulated state interest . . . . This deferential 

standard recognizes the legislative prerogative to “define the scope and 

the duration of the entitlement to . . . benefits, and to increase, decrease, 

or to terminate those benefits based on its appraisal of the relative 

importance of the recipients’ needs and the resources available to fund 

the program.

Caputo, 34 A.3d at 916 (quoting Bowen v. Guillard, 483 U.S. 587, 598 (1987)). 

Legislation “in this area will not be deemed to violate equal protection merely 

because the classification drawn is imperfect . . . . The classification need only be 

directed at the accomplishment of a legitimate government interest, and to do so in 
20

a manner which is not arbitrary or unreasonable.” Id. (alteration in the original) 

(internal quotations and citations omitted).

In Caputo, we applied the rational basis test to the equal protection challenge

to the Social Security old age benefits offset. Initially, we explained that “[t]he 

legislature has made the policy decision that because the employer helps to fund 

Social Security, it should receive a credit towards [WC] disability.” Id. at 912. We 

observed that under the rational basis standard, “the General Assembly need not 

specifically articulate the purpose or rationale supporting its action”; rather, “[i]t is 

enough that some rationale may conceivably be the purpose and policy underlying 

the enactment.” Id. at 917 n.15. Accordingly, “courts are free to hypothesize reasons 

why the legislature created the particular classification at issue and, if some 

legitimate reason exists, the provision cannot be struck down, even if its soundness 

or wisdom might be deemed questionable.” Id. 

With regard to the legitimate governmental interests at issue in Section 204(a), 

we held

[t]he Supreme Court has . . . identified one legitimate governmental 

interest underlying all of the offsets in Section 204(a): “Reasonable 

[WC] cost containment for employers, and the concomitant competitive 

benefit such cost containment offers for Pennsylvania businesses.”

[Kramer,] . . . 883 A.2d at 535.[] We identify a second legitimate 

governmental interest to this particular offset: to encourage individuals 

collecting Social Security retirement benefits to remain in or reenter the 

workforce.[]

Caputo, 34 A.3d at 917 (footnotes omitted). The Court concluded that the 

challenged legislative classification was reasonably related to the articulated 

governmental interests, reasoning:

[p]ermitting an employer to offset [WC] disability benefits by 50% of 

an employee’s Social Security retirement benefit is reasonably related 
21

to reducing the employer’s [WC] costs. If the employer is self-insured, 

the reduction is obvious because it is direct. Every dollar offset is a 

dollar in savings to the employer. The cost reduction to privately 

insured employers is less direct; however, [WC] insurance premiums 

“are based at least in part on past payment experience.” Kramer, . . . 

883 A.2d at 535-36. Reducing the amount of compensation claims 

ameliorates the employer’s future premiums. . . .

Caputo, 34 A.3d at 917. In rejecting the claimant’s argument that WC benefits and 

Social Security old age benefits were not duplicative, and, therefore, did not 

implicate cost containment, we again found the Supreme Court’s reasoning in 

Kramer, a challenge to the severance offset, persuasive, stating:

there is nothing irrational or arbitrary in offsetting 

severance benefits, irrespective of whether the employer 

is self-insured or privately insured. The worker 

experiences only one loss of earnings at a time, even if 

there is a prospect of compensation for that loss from 

multiple sources. The offset does not disadvantage the 

injured worker vis a vis his uninjured colleagues who also 

receive severance benefits because those workers do not 

receive a double benefit, in the form of [WC] payments, 

from the employer. Because the employment relationship 

is the basis for providing both severance payments and 

[WC] benefits (whether or not the compensation is paid 

through an outside insurer), the employer can avoid paying 

duplicate benefits for the same loss of earnings by using 

the offset. We conclude that the severance benefit offset 

bears a rational relationship to achieving the legislative 

goals.

[Kramer], 883 A.2d at 535 (emphasis added).

The Supreme Court’s above-stated rationale is equally applicable 

to this case. The employment relationship is the basis for providing 

both [WC] benefits and Social Security retirement benefits. The latter 

benefit is traceable to the Social Security tax contribution every 

employer makes toward its employees’ social security retirement. The 

General Assembly recognized that the employer’s contribution is 

only partial by enacting a 50% offset rather than a dollar for dollar 
22

offset. The 50% offset is not a perfect fit because a claimant may 

have a long work history with multiple employers. In such a case, 

the last employer would benefit even though it was not the 

employer that made all of the contributions to the Social Security 

trust fund on behalf of the employee. Legislative classifications are 

not required to be perfect to pass constitutional muster. 

The General Assembly chose a 50% offset as a fair 

approximation of the employer’s contribution because of the burden to 

tailor the offset in each individual case to the actual Social Security tax 

contributions made by an employer for the employee subject to the 

offset. Further, former employers will benefit by having the offset 

apply where they, in turn, have a short history with an employee who 

is injured and then retires. The goal of the 50% offset is to achieve 

fairness to the group of all Pennsylvania employers. Statutory 

regulation of social welfare benefits “does not violate the Equal 

Protection Clause because the classifications drawn are imperfect; if the 

classification has a reasonable basis, it does not offend the 

Constitution.” McCusker, . . . 639 A.2d at 780. It is not for this Court 

to speculate as to whether Section 204(a)’s 50% offset is the wisest or 

best means to accomplish the legitimate legislative goal of cost 

containment. Indeed, there are an infinite array of policy choices the 

legislature could have made with respect to [WC] benefits. It could 

have decided that [WC] disability, which is intended to replace an 

injured worker’s earning power, should end as soon as that employee 

retires. After all, other employees, who are not injured before 

retirement, are limited to their Social Security and retirement pension. 

In its wisdom, however, the legislature has decided that [WC] should 

continue post-retirement, recognizing that many retirees wish to work 

well into their retirement. So long as a work injury deprives the 

claimant of the opportunity to earn income, compensation benefits 

continue. 

Caputo, 34 A.3d at 917-18 (bold emphasis added). Thus, this Court found that the 

legislative classification satisfied the rational basis test and rejected the claimant’s 

equal protection challenge.

Claimant asserts that Caputo did not address the same challenge as that raised 

here and, therefore, is not binding. While Caputo did not address an equal protection 

challenge to the different offsets based on the type of benefit a claimant receives, we 
23

conclude its reasoning nonetheless supports the same result here. Claimant’s 

challenge is based on the belief that the amount an employer funds a particular 

employee’s Social Security old age benefits can be discerned from the employee’s 

wage statements, pointing to his own four weeks of pay stubs as evidence. If those

amounts are discernible, Claimant contends, they should be treated the same as 

severance and pension benefits, which would satisfy the legitimate government 

interest of cost containment and avoid an equal protection violation. While the 

Legislature could have used the same language for calculating the Social Security 

old age benefit offset as it did for the other offsets had it wanted the parties to have 

to engage in the mathematical exercise Claimant posits is possible and should be 

performed, it did not. 

As we explained in Caputo, the use of the 50% offset was in recognition of an 

employer’s partial contribution to the Social Security trust fund, and, while “not a 

perfect fit,” it was “a fair approximation of the employer’s contribution” made to 

avoid “the burden to tailor the offset in each individual case to the actual Social 

Security tax contributions made by an employer for the employee subject to the 

offset.”16 Id. at 917-18. “Legislative classifications are not required to be perfect

to pass constitutional muster.” Id. at 918 (emphasis added). Using the 50% offset 

was an effort to achieve fairness for all Pennsylvania employers by acknowledging 

that there may be some situations where an employer benefits from the offset and 

some where they would not, depending on the length of the employment 

relationship. Id. The same issue is generally not present in the severance or pension 

offset situation, which focuses on the relationship between a particular employer and 

16 Given this statement in Caputo, we question Claimant’s premise, based on the four-week 

work experience here, that every employer’s contributions to every employee’s Social Security 

old age benefits would be so easily discernable.
24

its injured employee and how that particular employer funded the employerprovided benefit. As the Court may hypothesize a reason for why a particular 

legislative classification was created that is legitimate, we conclude the above 

reasons support the difference here. Id. at 917 n.15. For these reasons, we discern 

no violation of Claimant’s equal protection rights by Employer’s taking the Section 

204(a) offset for Claimant’s Social Security old age benefits. Accordingly, the WCJ 

did not err in denying Claimant’s Petitions.

B. Whether the WCJ Improperly Considered Smychynsky’s Testimony and 

Report in Granting the Modification Petition.

1. Parties’ Arguments

Claimant argues that Smychynsky and/or Employer did not comply with the 

Regulations and therefore, Smychynsky’s earning assessment and deposition should 

not have been considered. Specifically, Claimant asserts that Smychynsky testified 

that the vocational report was sent only to Employer’s insurer, not to Claimant and 

Claimant’s counsel, and there is no indication that Smychynsky had generated a 

written initial report detailing the expert’s involvement in the litigation and 

conclusions from the interview within 30 days, in violation of Section 123.204(b), 

(c) of the Regulations, 34 Pa. Code § 123.204(b), (c). Claimant testified he did not 

receive any assessments in the mail or letters from Smychynsky that identified jobs. 

Claimant further argues that Smychynsky admitted to being unaware of whether 

Employer had forwarded a financial interest disclosure to Claimant as required by 

Section 123.205 of the Regulations, 34 Pa. Code § 123.205, and that no such 

document is in Claimant’s file. Claimant further asserts that, contrary to the Board’s 

conclusion, these arguments are not waived because they were raised in the Answer 

to the Modification Petition, as well as during Smychynsky’s deposition and 

Claimant’s testimony. 
25

Employer replies that the Board properly found these objections to be waived 

as a result of Claimant’s failure to preserve them in writing as required by Section 

131.66(b) of the WCJ Rules, by which Claimant’s counsel agreed to abide at the 

beginning of Smychynsky’s deposition. For this reason and the fact that Claimant 

did not otherwise articulate the substance of the objections, Employer contends, the 

WCJ did not address them and properly considered Smychynsky’s report and 

deposition. Even if preserved, Employer argues that the record reflects that there 

were no violations because Smychynsky’s report shows Claimant and Claimant’s 

counsel were copied on the report, and the testimony upon which Claimant relies 

related to the job analysis forms sent to Dr. Mendez and Dr. Sweet, which is not 

subject to the Regulation. Further, Employer asserts there was no financial interest 

at issue and, therefore, no disclosure was required.

2. Analysis

We address the waiver argument first. Section 131.66 of the WCJ Rules 

governs the “[a]dmissibility of oral depositions,” and subsection (b) provides that 

“[o]bjections shall be made and the basis for the objections stated at the time of the 

taking of the depositions” and “[o]nly objections which are identified in a separate 

writing, introduced prior to the close of the evidentiary record, . . . stating the specific 

nature of the objections and the pages where they appear in the deposition . . . will 

be preserved for ruling.” 34 Pa. Code § 131.66(b). Any “[o]bjections not so 

preserved are waived.” Id.; see also Degraw, 926 A.2d at 1001 (finding any issue 

not preserved as required by Section 131.66(b) was waived).

While the record confirms that Claimant did not submit a separate, written list 

of the objections to Smychynsky’s testimony and earnings analysis, Claimant 

expressly raised the alleged violation of the Regulations in the Answer to the 
26

Modification Petition. Therein, Claimant stated: “[i]t is believed and therefore 

averred that the [WCJ] may not consider the results of . . . Smychynsky’s Earning 

Power Assessment as [Smychynsky] failed to comply with Section 123.204 of the 

Regulations, and the involved [WC] Carrier failed to comply with Section 123.205 

of said Regulations.” (Answer to Modification Petition, C.R. Item No. 6.) 

Claimant’s challenge to the consideration of Smychynsky’s earning power 

assessment was not related to anything particular to Smychynsky’s testimony or the

deposition, but was a defense to the Modification Petition based on the alleged 

noncompliance with the Regulations. Thus, it is not clear whether this provision, 

which focuses on the admissibility of oral deposition, applies here. Second, this 

objection (defense) was brought to the WCJ’s, as well as Employer’s, attention at 

the earliest moment in this matter, was repeated during Smychynsky’s deposition, 

and Claimant’s counsel indicated at the final hearing that there were objections to 

Smychynsky’s materials contained therein. (WCJ Hearing Transcript (Hr’g Tr.), 

Feb. 15, 2018, at 4, C.R. Item 24.) Under these circumstances, particularly where 

Claimant raised this defense to the Modification Petition itself - Employer’s reliance 

on Smychynsky’s earning power assessment - in writing in Claimant’s Answer, we 

conclude Claimant sufficiently preserved his challenge based on the alleged 

noncompliance with Sections 123.204 and 123.205 of the Regulations. However, 

upon review of the record, we, like the Board, discern no violation of these 

provisions that would require reversal.

Section 123.203(c) of the Regulations provides that a WCJ “may not consider 

the results of an earning power assessment interview if the [WCJ] finds that the 

vocational expert has not complied with [Section] 123.204 . . . or that the insurer has 

not complied with [Section] 123.205.” 34 Pa. Code § 123.203(c). Claimants “bear 
27

the responsibility of raising the issue of a vocational expert’s alleged failure to 

comply with” the Regulations “as a defense to a modification before the WCJ.” 

Kleinhagan v. Workers’ Comp. Appeal Bd. (KNIF Flexpak Corp.), 993 A.2d 1269, 

1275-76 (Pa. Cmwlth. 2010). “Once this is done, the burden should shift to the 

employer to establish” compliance with the Regulations. Id. at 1276.

Section 123.204(b) provides that “[a] vocational expert who conducts an 

earning power assessment interview shall generate a written initial report detailing 

the expert’s involvement in the litigation and conclusions from the interview,” and 

“shall serve a copy of the initial report on the employee and counsel, if known, within 

30 days of the date of the interview.” 34 Pa. Code § 123.204(b). Although Claimant 

cites testimony that Smychynsky only sent reports and job analysis forms to 

Employer’s TPA and/or Dr. Mendez and Dr. Sweet to review, (Smychynsky’s Dep. 

Part 1 at 93; Smychynsky’s Dep. Part 2 at 114), the record reflects otherwise. Both 

Claimant’s counsel and Claimant were carbon copied, along with Employer’s 

counsel, on the Earning Capacity Assessment, which set forth Smychynsky’s role in 

the litigation, conclusions from the interview, review of the medical materials, and

the LMS, including a list of the 23 positions identified. (Smychynsky’s Dep. Part 2, 

Ex. Smychynsky-4.) Claimant’s receipt of the Earning Capacity Assessment is 

confirmed by Claimant’s own testimony and Claimant’s Exhibit C-04, which show 

that Claimant received the materials and followed through with applying for many 

of those positions. (FOF ¶ 18(h); Feb. 25, 2018 Hr’g Tr., Ex. C-04.) While the 

Earning Capacity Assessment may have been sent more than 30 days after 

Claimant’s interview,

17 it was sent immediately following the completion of 

17 Employer asserts there is no violation because Claimant’s attorney “received a February 

24, 2017 report from [Smychynsky] as he was supposed to have sent [to Claimant] within 30 days 

(Footnote continued on next page...)
28

Smychynsky’s search for available positions. Under these circumstances, and 

because Claimant does not assert any prejudice from the delay, we discern no error 

in the WCJ’s consideration of Smychynsky’s materials on this basis.

Section 123.204(c) provides that “[a] vocational expert who authors 

additional written reports, including earning power assessments or labor market 

surveys, shall simultaneously serve copies of these written reports upon the 

employee and counsel, if known, when the expert provides the written reports to the 

insurer or its counsel.” 34 Pa. Code § 123.204(c). Claimant argues that Smychynsky 

violated this provision, again citing Smychynsky’s testimony that reports and job 

analyses were sent only to Employer’s TPA and/or for Dr. Mendez and Dr. Sweet to 

review. (Smychynsky’s Dep. Part 1 at 93; Smychynsky’s Dep. Part 2 at 114.) 

However, as discussed above, the Earning Capacity Assessment reflects that it was 

sent to Claimant and Claimant’s counsel, and Claimant admitted to receiving that 

report. (Smychynsky’s Dep. Part 2, Ex. Smychynsky-4; FOF ¶ 18(h); Feb. 25, 2018 

Hr’g Tr., Ex. C-04.) As for the job analysis forms and accompanying letters that 

were sent to Dr. Mendez and Dr. Sweet, these are not subject to this Regulation

because they are not “written reports,” 34 Pa. Code § 123.204(c), authored by 

Smychynsky, but were inquiries sent to the IME physicians to determine whether 

the identified positions were consistent with those physicians’ work releases for 

Claimant. (Smychynsky’s Dep. Part 2, Exs. Smychynsky-5, C-Smychynsky-3.) 

Accordingly, we discern no error in the WCJ’s consideration of Smychynsky’s 

testimony and reports on this basis.

of the vocational interview[,]” which “was appropriately copied to Claimant and his attorney.” 

(Employer’s Br. at 26-27.) However, we cannot consider this factual statement because the record 

does not include this alleged report. Indem. Ins. Co. of N. Am. v. Bureau of Workers’ Comp. Fee 

Rev. Hearing Off. (Insight Pharm.), 245 A.3d 1158, 1165 (Pa. Cmwlth. 2021).
29

Finally, Section 123.205(b) of the Regulations state that “[b]efore an insurer 

refers an employee for an earning power assessment interview, the insurer shall 

disclose to the employee, in writing, any financial interest the insurer has with the 

person or entity conducting the earning power assessment interview.” 34 Pa. Code 

§ 123.205(b) (emphasis added). This regulation must be read consistently with 

Section 306(b)(2.1) of the Act, which provides that “[i]f an insurer refers an employe 

for an earning power assessment and the insurer has a financial interest with the 

person or in the entity that receives the referral, the insurer shall disclose that 

financial interest to the employe prior to the referral.” 77 P.S. § 512(2.1) (emphasis 

added). This language supports Employer’s argument that if there is no financial 

interest present, there is nothing to be disclosed.18 Here, based on Smychynsky’s 

testimony, the WCJ found that there was no financial interest between Employer or 

its representative and Smychynsky or his business. (FOF ¶ 15(a).) As such, no 

disclosure was required prior to the interview. For these reasons, the WCJ was not 

precluded from considering Smychynsky’s materials on this basis. 

C. Whether the WCJ Should Have Considered Claimant’s Conviction in 

Determining Claimant’s Residual Productive Skill and Whether the 

Identified Positions were Actually Open and Available to Claimant.

1. Parties’ Arguments

Claimant argues that the WCJ erred in not considering the conviction, and the 

resulting employment restrictions, which made some of the positions identified not 

actually open and available to Claimant, as part of Claimant’s residual productive 

skill. Claimant asserts that the term “residual productive skill,” as used in Section 

306(b)(2), should be read broadly to include factors other than a claimant’s physical 

18 While not binding, it appears that the Board interprets Section 123.205(b) the same way. 

See Ware v. Pa. State Sys. of Higher Educ. (Pa. Work. Comp. App. Bd., A14-0323, filed Sept. 24, 

2015), 2015 WL 5898562, at *8-9.
30

restrictions associated with the work-related injury. According to Claimant, Section 

306(b)(2) required the WCJ to examine his “condition at the time ‘earning capacity’ 

is being challenged[,]” to determine Claimant’s residual productive skill, which here 

includes Claimant’s status as a Class II felon. (Claimant’s Br. at 46.) Claimant 

likens this matter to Kolenkiewicz v. Workers’ Compensation Appeal Board (SKF 

USA, Inc.), 730 A.2d 1054, 1057 (Pa. Cmwlth. 1999), in which Claimant contends 

this Court held that an employer had to show that a criminal conviction would not 

prevent a position from being available. Claimant asserts Smychynsky

acknowledged that the security guard positions were not appropriate given the 

conviction and that any position that required a background check was more likely 

than not unavailable to Claimant and, therefore, should not have been considered. 

Employer argues there was no error in the WCJ’s conclusion that Claimant’s 

conviction, which occurred after the work injury, was not relevant to Claimant’s 

residual productive skill and whether the jobs identified were open and available to 

Claimant. According to Employer, it need not show that any of the prospective jobs 

would accommodate any of Claimant’s non-work-related physical limitations to 

meet its burden, Markle, 661 A.2d at 1358, and the same principle should be applied 

to other non-physical factors or limitations that occurred after and are unrelated to 

the work injury. Further, Employer argues, the mere fact that a criminal background 

check is required does not necessarily mean that a position is automatically 

unavailable to Claimant. For these reasons, Employer asserts it should not be 

additionally burdened to identify employment within the limitations associated with 

Claimant’s post-work injury, criminal conviction.
31

2. Analysis

Section 413 of the Act authorizes an employer to modify a claimant’s WC 

benefits if it proves that “the disability of an injured employe has increased, 

decreased, recurred, or has temporarily or finally ceased.” 77 P.S. § 772. Pursuant 

to this section, “when an employer seeks to modify a claimant’s benefits by a 

reduction, suspension, or termination of such benefits, the employer must first come 

forward with medical evidence of a change in the claimant’s physical condition that 

correspondingly establishes a change in the claimant’s ‘disability[,]’” which means 

the loss of earning power. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. 

(Shoap), 81 A.3d 830, 841 (Pa. 2013). 

Section 306(b)(2) of the Act addresses earning power and partial disability, 

and 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 employe 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 employe 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.

77 P.S. § 512(2) (emphasis added). “Earning power under Section 306(b) is 

unmistakably based on the employer’s evidence of the claimant’s ability to engage 

in existing ‘substantial gainful employment’ within his or her physical, medical, and 
32

vocational restrictions or skills, not on whether he or she actually receives a job 

offer.” Phoenixville Hosp., 81 A.3d at 842. Unless the employer has an appropriate 

position, Section 306(b)(2) “does not require that the claimant be offered a job in 

order to establish the claimant’s earning power.” Id. However, in determining 

whether an employer meets its burden of proof, “[t]he jobs identified by the 

employer’s expert witness that the claimant is ‘capable of performing’ must thus be 

those jobs that are actually open and potentially available, not simply jobs that are 

already filled with existing employees.” Id. This may be established through the 

testimony of a vocational expert. 77 P.S. § 512(2). 

Here, the WCJ found that Employer met its burden of proof based on 

Smychynsky’s credited expert opinion that Claimant had an earning power of 

$520.00 per week, which was based on a 40-hour work week at the highest paid 

position available to Claimant, which was the G4S Security Services position that 

was vocationally appropriate and open and available. (FOF ¶¶ 15(k), (hh), (ii), (jj),

27(e); COL ¶ 2.) Claimant challenges the reliance on any of the security positions 

because they were not “available” due to his conviction, which is now a part of his 

“residual productive skill.” 77 P.S. § 512(2). Accordingly, the question before the 

Court is what role, if any, Claimant’s Class II felony conviction plays in determining 

whether Employer met its burden of proving that there were appropriate, available

jobs within Claimant’s “physical, medical, and vocational restrictions or skills.” 

Phoenixville Hosp., 81 A.3d at 842. The WCJ and Board held the conviction has no 

impact on what Employer must prove because it occurred after the work injury and 

was not related thereto. We agree. 

Claimant relies on the phrase “residual productive skill” as used in Section 

306(b)(2), 77 P.S. § 512(2), which he contends must take into account his Class II 
33

felony conviction. This phrase is not defined by the Act and is a separate 

consideration from a claimant’s “education” and “work experience.” Id. A

claimant’s “productive skill” is modified by the word “residual,” which is undefined 

by the Act but may be defined as meaning “remaining; leftover.” Black’s Law 

Dictionary 1424 (9th ed. 2009).19 We read “residual” to refer to the productive skill 

that remains or is leftover as a result of a claimant’s work-related injury and 

without consideration of any non-work-related factors that arose after the work 

injury. This reading is consistent with precedent, which focus on the workrelatedness of any limitations, as well as on the timing of the events that may affect 

a claimant’s ability to return to work.

In Sheehan v. Workmen’s Compensation Appeal Board (Supermarkets 

General), 600 A.3d 633, 636 (Pa. Cmwlth. 1991), we rejected a claimant’s argument 

that the referee20 erred in refusing to consider the medical limitations related to the 

claimant’s subsequent, non-work-related heart attack in granting the employer’s 

modification petition. We explained that the inquiry into the appropriateness and 

availability of a position for the purposes of a modification petition reviews only the 

limitations that are the result of the work injury and does not “include those 

physical limitations resulting from a non-work-related injury with no [causal]

connection to the prior work-related injury []or which are related to physical 

limitations existing prior to the injury.” Id. at 632. To hold otherwise “would require 

the employer to compensate an employee for injuries occurring away from the job 

during the period that the employee is recovering from his or her work-related 

19 Under Section 1903(a) of the Statutory Construction Act of 1972, words shall be given 

their common and approved usage, 1 Pa.C.S. § 1903(a), and where words are undefined by the 

statute, the courts may look to dictionary definitions to do so, Cox v. Johnstown Housing.

Authority, 212 A.3d 572, 580 (Pa. Cmwlth. 2019).

20 Prior to 1996, WCJs were called referees.
34

injury,” and “[t]he intent of [t]he . . . Act is to compensate only work-related injuries 

or those [causally] connected thereto.” Id. (emphasis added). 

In Markle, our Supreme Court applied Sheehan to consider whether an 

employer had to consider a preexisting medical condition, unrelated to the work 

injury, in meeting its burden of proving job availability. There, the claimant 

sustained a work-related back injury, was cleared to return to restricted work, and 

the employer assigned the claimant to a position with no loss of earnings but in a 

different area of the employer’s facility. However, due to a preexisting, non-workrelated condition, the claimant could not work in the assigned area, refused the 

position, and sought reinstatement of his WC benefits. The referee denied 

reinstatement, finding that the employer had made a position within the work-related 

restrictions available, which the claimant had rejected. The Board and this Court 

affirmed. The Supreme Court also affirmed, observing that WC was intended to 

replace “common law tort actions between employees and employers as a means for 

obtaining compensation for injuries,” and that “claimant[s] may only collect for 

those injuries arising out of [their] employment.” 661 A.2d at 1357. Finding that 

the employer had met its burden of proving job availability, so as to defeat 

reinstatement, the Supreme Court explained, citing Sheehan, that while a claimant’s 

physical limitations are a factor to be considered, only those limitations causally 

related to the work injury and that did not preexist can be used to determine job 

availability under the Act. Id. at 1358. The Supreme Court agreed with Sheehan

that holding otherwise would be inconsistent with the Act by requiring an employer 

to compensate a claimant for non-work-related conditions while the claimant was 

recovering from the work-related injuries. Id. The Supreme Court found further 
35

support for its conclusion in Section 413(a) of the Act,21 which allowed for 

reinstatement of benefits “unless it be shown that the loss of earnings does not result 

from the disability due to the injury.” Id. at 1360. Because the employer had made 

a job within the claimant’s work-related restrictions and with no loss of earnings

available, the claimant’s loss of earnings was not the result of the work injury and 

he was not entitled to WC benefits. Id.

The Supreme Court later, in Schneider, Inc. v. Workers’ Compensation 

Appeal Board (Bey), 747 A.2d 845 (Pa. 2000), described an employer’s burden of 

proving job availability for purposes of the suspension of benefits as follows. “If an 

employer can establish that there is a job available that complies with an 

employee’s remaining work-related physical injuries, and the employee fails to 

return to or accept this position because of non[-]work-related factors, the 

employer has proven that the employee’s loss of earnings is attributable to something 

other than the work-related injury.” Id. at 849 n.9 (emphasis added). In that case, 

the claimant was cleared to return to sedentary work from the work injury but was 

unable to perform any work because of a devastating non-work-related injury

sustained after the work injury. Under that situation, the Supreme Court held the 

employer did not have to establish job availability within the claimant’s work-related 

restrictions because it would be futile given the claimant’s non-work-related injuries.

21 Section 413 of the Act provides, in pertinent part, that:

A [WCJ] designated by the department may, at any time, modify, reinstate, 

suspend, or terminate a notice of compensation payable, an original or supplemental 

agreement or an award of the department or its [WCJ], upon petition filed by either 

party with the department, upon proof that the disability of an injured employe has 

increased, decreased, recurred or has temporarily or finally ceased.

77 P.S. § 772.
36

Although these cases did not involve a modification pursuant to an LMS, the 

common theme throughout is that, for a limitation on a claimant’s ability to work 

generally or on the availability of a particular position to be considered by a WCJ,

the limitation must be related to the work injury, particularly if the limitation 

arises from events occurring after the work injury. Applying this analysis to 

Claimant’s argument that “residual productive skill” requires consideration of his 

post-injury conviction renders that argument without merit. Requiring that for a 

limitation to be considered a part of a claimant’s “residual productive skill” it must 

be related to the claimant’s work injury and not occur after the work injury gives 

meaning to the word “residual” by ensuring that the productive skill being 

considered is that which remains or is left over from the work injury. Otherwise, 

Employer would be responsible for compensating Claimant for his inability to obtain 

higher paying work based on limitations that arose after the work injury and were 

unrelated to that injury. Imposing such an obligation on Employer would be 

inconsistent with the Act’s intent as set forth by this Court in Sheehan and approved 

by the Supreme Court in Markle. Applying this limitation to modifications pursuant 

to an LMS is consistent with these cases and the Act’s intent. Here, it is not disputed 

that the cited limitations to Claimant’s employment prospects relate to his Class II 

felony conviction that occurred after the work injury and that are completely 

unrelated to the work injury. As the claimed limitations are not causally related to 

Claimant’s work injuries, but to his own after-the-fact actions, we agree with the 

Board that this conviction “has no bearing on the [LMS] and earning power 

assessment performed by” Employer. (Board Op. at 18.)

Although Claimant relies on Kolenkiewicz, that case does not require a 

different result. First, unlike here, the claimant there had been convicted of a crime 
37

in 1969, decades before he sustained a work injury in 1988 and left work in 1995,

for which the claimant received wage loss benefits. Thus, if a conviction was to be

considered a part of the claimant’s “productive skill,” the conviction in that case

existed prior to the work injury and, consequently, could be viewed as part of the 

claimant’s “remaining” productive skill after the work injury. Second, the Court did 

not clearly hold, as Claimant argues, that an employer must show that a conviction 

does not automatically bar the claimant from the position relied upon by the 

employer because it requires a background check. Rather, we explained that 

“[a]ssuming, arguendo, that the [e]mployer had the burden to prove [that the 

c]laimant’s conviction did not automatically bar [the c]laimant from being 

considered for the job,” the employer’s evidence “was sufficient . . . to establish that 

the job was available to [the c]laimant” because it indicated that a criminal 

conviction did not automatically exclude an applicant from consideration. 730 A.2d 

at 1056-57 (emphasis added). Thus, we held that if the employer had to show this, 

the employer had, in fact, met its burden. Accordingly, Kolenkiewicz does not 

require reversal.

Because requiring the WCJ to consider non-work-related injury limitations

that were the result of actions that occurred after the work-related injury as part of 

Claimant’s “residual productive skill” in determining whether a position identified 

by an employer is appropriate and/or open and available is inconsistent with the 

caselaw and the Act’s intent, we discern no error in the WCJ’s decision not to do so 

here.
38

D. Whether the WCJ’s Decision is Reasoned as Required by Section 422(a) 

of the Act.

1. Parties’ Arguments

Claimant raises two arguments that claim the WCJ did not issue a reasoned 

decision as required by Section 422(a) of the Act. First, Claimant argues that there 

is an inconsistency in Dr. Mendez’s testimony and opinions, citing Findings of Fact 

13 and 21, in which the WCJ summarized and credited Dr. Mendez’s testimony 

regarding Claimant’s full recovery and ability to return to the time-of-injury, heavyduty position, and Finding of Fact 15(m), (o), in which the WCJ found that Dr. 

Mendez had disapproved 2 of the positions identified for Claimant by Smychynsky

because they required lifting of over 20 pounds and 1 position required Claimant to 

stand for more than 4 hours. Claimant argues the WCJ never addressed the 

inconsistency in Dr. Mendez finding Claimant fully recovered and releasing 

Claimant for full duty, while simultaneously disapproving positions as not being 

physically appropriate for Claimant to perform. According to Claimant, that Dr. 

Sweet opined that Claimant could not lift more than 20 pounds occasionally, did not, 

as the Board reasoned, support Dr. Mendez’s limitation based on standing for more 

than 4 hours. 

Second, Claimant argues the WCJ’s explanations for rejecting Dieckman’s 

testimony, that he had not contacted the potential employers until eight months after 

the LMS had been completed and that the positions did not meet Dr. Mendez’s 

restrictions where, according to the WCJ, no such restrictions existed, do not satisfy 

the reasoned decision requirements of Section 422(a). Claimant maintains that the 

timing of Dieckman’s inquiry “does not render the opinion of suitability for 

[Claimant] less credible, nor should it render the [t]estimony any less credible if it 

was determined that the jobs NEVER existed, as described in the” LMS. 
39

(Claimant’s Br. at 51.) Additionally, Claimant points out that, notwithstanding Dr. 

Mendez’s opinion of full recovery, Dr. Mendez did not approve 2 of the 5 identified 

positions because they required lifting of more than 20 pounds and 1 position 

because it required standing for more than 4 hours, an inconsistency that invalidates

the WCJ’s rejection of Dieckman’s testimony.

Employer argues the WCJ’s Decision is reasoned and disputes that Dr. 

Mendez’s opinions were “diametrically opposed.” (Employer’s Br. at 28.) 

Employer asserts that Dr. Mendez’s restrictions were consistent with the reviewed 

medical reports and records in that the lifting restrictions were imposed by Dr. 

Sweet, and the standing restriction was supported by Claimant’s non-work-related 

surgery on the left knee. Such restriction, Employer maintains, is not inconsistent 

with Dr. Mendez’s opinion that Claimant was fully recovered from the non-upper 

extremity injuries, which were to Claimant’s right side. Employer further points out 

that Dr. Mendez never testified regarding the job analyses, beyond saying Claimant 

had no restrictions related to the non-upper extremity injuries; rather, those 

approvals or approvals with modification were introduced during Smychynsky’s

testimony and exhibits. With Dr. Mendez not testifying on these points or 

authenticating the notes on the job analyses forms as his own, Employer contends 

the WCJ was not required to consider those notes as creating an inconsistency, 

particularly where a decision does not require a line-by-line analysis of the evidence 

presented in order to be reasoned. 

As for the WCJ’s rejection of Dieckman’s testimony, Employer asserts there 

was no error or violation of the reasoned decision requirements. Employer argues 

that the WCJ explained the reasons for rejecting that testimony and it is uncontested 

that Dieckman did not contact the identified employers until eight months after 
40

Smychynsky completed the LMS. Employer further contends that this was but one 

of the reasons the WCJ gave for rejecting Dieckman’s testimony, and the other 

reasons, including that Dieckman relied on Dr. Shapiro’s restriction and on 

Claimant’s Class II felony conviction, were supported by the record. According to 

Employer, the WCJ’s detailed explanations of the credibility determinations are not 

arbitrary or capricious and are supported by the record and, therefore, satisfied the 

reasoned decision requirement, which is not intended to allow parties to challenge 

or second-guess the WCJ’s credibility determinations. (Id. at 35-36.)

2. Analysis

Section 422(a) of the Act provides that all parties in a WC case are “entitled 

to a reasoned decision containing findings of fact and conclusions of law based upon 

the evidence as a whole which clearly and concisely states and explains the rationale 

for the decisions so that all can determine why and how a particular result was 

reached.” 77 P.S. § 834. A decision of a WCJ is “reasoned” if it allows for 

meaningful appellate review without further elucidation. Daniels v. Workers’ Comp.

Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1052 (Pa. 2003). “[W]hile summaries 

of testimony alone would be insufficient to satisfy the reasoned 

decision requirement, where a WCJ summarizes testimony and also objectively 

explains [the WCJ’s] credibility determinations, the decision will satisfy 

the requirement.” Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods), 37

A.3d 72, 76 (Pa. Cmwlth. 2012). In addition, a WCJ cannot simply ignore 

uncontroverted evidence but, rather, must adequately explain the reasons why the 

WCJ has rejected such evidence. 77 P.S. § 834. The reasoned decision requirement

“does not require the WCJ to give a line-by-line analysis of each statement by each 

witness, explaining how a particular statement affected the ultimate decision.” 
41

Gumm v. Workers’ Comp. Appeal Bd. (J. Allan Steel), 942 A.2d 222, 228 (Pa. 

Cmwlth. 2008) (quoting Acme Mkts., Inc. v. Workers’ Comp. Appeal Bd. (Brown), 

890 A.2d 21, 26 (Pa. Cmwlth. 2006)). A reasoned decision challenge “does not 

permit a party to challenge or second-guess the WCJ’s reasons for credibility 

determinations,” and those determinations will be upheld on appeal unless they were 

made arbitrarily or capriciously. Hershgordon v. Workers’ Comp. Appeal Bd. 

(Pepboys, Manny, Moe & Jack), 14 A.3d 922, 928 (Pa. Cmwlth. 2011) (quoting 

Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 195 

(Pa. Cmwlth. 2006)). This is because “the WCJ is the ultimate fact finder and is

empowered to determine witness credibility and evidentiary weight. The WCJ, 

therefore, is free to accept or reject, in whole or in part, the testimony of any witness, 

including medical witnesses.” Id. (quoting Griffiths v. Workers’ Comp. Appeal Bd. 

(Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000)). Reviewing the WCJ’s 

Decision, we conclude it is reasoned because it clearly and concisely states and 

explains the WCJ’s rationale, objectively explains the credibility determinations, 

which are supported by the record and are not arbitrary and capricious, and allows 

for meaningful appellate review.

With regard to Dr. Mendez’s testimony, the WCJ provided multiple reasons 

for finding Dr. Mendez more credible than Dr. Shapiro, (FOF ¶¶ 21, 24), but 

Claimant challenges that determination based on what he contends is an 

inconsistency in Dr. Mendez’s “imposed” restrictions. We discern no inconsistency 

that would render the WCJ’s Decision not reasoned as required by the Act. Dr. 

Mendez unequivocally testified that Claimant was fully recovered from the workrelated non-upper extremity injuries and could return to work without restrictions

related to those injuries and completed an affidavit of recovery for those injuries. 
42

(Mendez’s Dep. at 32-34, 61-62; FOF ¶ 13(j), (k).) Dr. Mendez’s September 15, 

2016 Physical Capacities Form for Claimant clearly recognized that additional 

restrictions could be imposed by another physician for the upper extremity injuries. 

(Mendez’s Dep., Ex. D-Mendez-3.) Dr. Sweet imposed those restrictions, and Dr. 

Mendez’s recognition of the 20-pound lifting restriction in his review of the job 

analyses was not inconsistent with his finding Claimant fully recovered from the 

non-upper extremity work injuries. (Smychynsky’s Dep. Part 2, Ex. Smychynsky5.) As for the alleged four-hour-per-day standing limitation for the Flagger Force 

position, unlike the other four positions, the WCJ did not find that Dr. Mendez 

approved the position. (Compare FOF ¶ 15(k), (o), (bb), (cc), with ¶ 15(m).) Dr. 

Mendez was not questioned about the notations on the job analysis forms during his 

deposition, which were attributed to him during Smychynsky’s deposition. Given 

the lack of finding, it does not appear that the WCJ considered, or credited, any of 

the alleged restrictions on the Flagger Force position attributed to Dr. Mendez. 

Further, as Employer points out, and the WCJ found, Dr. Mendez noted at the 

September 15, 2016 IME that Claimant recently had non-work-related surgery on 

the left knee, which caused a limited range of motion, an antalgic gate, and a slight 

limp. (FOF ¶ 13(i); Mendez’s Dep. at 26-27, 29.) Given Dr. Mendez’s recognition 

of Claimant’s left knee surgery, assuming that the written notation on the job 

analysis form is Dr. Mendez’s, it is not “diametrically” opposed to and inconsistent 

with Dr. Mendez’s finding of full recovery from the right-sided work injuries, such 

that the WCJ was ignoring uncontroverted evidence that the restriction was related 

to the work injury thereby rendering the WCJ’s credibility determination arbitrary 

and capricious. Absent an arbitrary and capricious credibility finding, the WCJ’s 

credibility determination will be upheld on appeal. Hershgordon, 14 A.3d at 928. 
43

Accordingly, this is not a basis upon which to conclude that the WCJ’s Decision was 

not reasoned.

As for Claimant’s challenge to the rejection of Dieckman’s testimony, the 

WCJ offered many reasons for finding Dieckman less credible than Smychynsky, 

(FOF ¶ 25), but Claimant challenges only the WCJ’s reliance on the facts that 

Dieckman performed his LMS eight months later and disqualified some positions 

based on “Dr. Mendez’s restrictions,” where the WCJ found that Dr. Mendez had 

placed no restrictions on Claimant’s return to work. (Id.) Claimant argues that the 

eight-month difference between the LMSs is not a basis for rejecting Dieckman’s 

testimony. For this Court to overturn a credibility determination, it must be arbitrary 

and capricious. Hershgordon, 14 A.3d at 928. Many of Dieckman’s criticisms of 

Smychynsky’s LMS were based on his being unable to contact the same individuals 

at the identified employers and questioning and/or identifying exactly what positions 

were available and when. These criticisms relate, at least in part, to the timing of 

the inquiries because positions that may have been available in March and April 

2017, when Smychynsky performed his LMS, may have not been available or had 

changed in November 2017, when Dieckman performed his LMS. That the two 

vocational experts performed their studies months apart is not an arbitrary and 

capricious reason for rejecting Dieckman’s testimony.

As for the rejection of Dieckman’s testimony based on his reliance on Dr. 

Mendez’s restrictions where no such restrictions were imposed, we read this reason 

as being related to restrictions imposed for the non-upper extremity injuries, the only 

specific injuries about which Dr. Mendez had testified. The WCJ found that Dr. 

Mendez did not impose any restrictions based on the non-upper extremity injuries 

because Claimant was fully recovered therefrom. (FOF ¶ 13(g).) This is supported 
44

by Dr. Mendez’s testimony, report, and affidavit of recovery. While the record 

contains some reference to Dr. Mendez setting forth other restrictions, which appear 

to be unrelated to the non-upper extremity injuries, the WCJ is not required to 

perform a line-by-line analysis of all of the evidence presented. Taken as a whole, 

we are not left to guess the reasons why the WCJ rejected Dieckman’s testimony, 

which are supported by the record and are not arbitrary and capricious. 

Because the WCJ’s Decision clearly and concisely explains the WCJ’s

rationale, provides objective reasons for the credibility determinations, which are 

supported by the record and not arbitrary and capricious, and allows for meaningful 

appellate review, it is reasoned for purposes of Section 422(a). Accordingly, this is 

not a basis for reversing.

III. CONCLUSION

In sum, Section 204(a) of the Act does not violate the Equal Protection 

Clauses of the United States and Pennsylvania Constitutions because it is rationally 

related to a legitimate government interest - cost containment - and is a reasonable 

means of achieving that interest. The WCJ did not err in considering Smychynsky’s 

testimony and report or in not finding that Claimant’s Class II felony conviction had 

to be considered in determining whether Employer met its burden of showing that 

the identified jobs were appropriate and/or open and available to Claimant. Finally, 

the WCJ’s Decision satisfied the reasoned decision requirement of Section 422(a) of 

the Act. Accordingly, the Board’s Order is affirmed.

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carl Sadler, :

Petitioner :

 :

v. : No. 1294 C.D. 2020

 : 

Philadelphia Coca-Cola (Workers’ :

Compensation Appeal Board), :

Respondent :

O R D E R

NOW, January 7, 2022, the Order of the Workers’ Compensation Appeal 

Board, entered in the above-captioned matter, is AFFIRMED.

_____________________________________

RENÉE COHN JUBELIRER, Judge