IN THE COMMONWEALTH COURT OF PENNSYLVANIA

George B. Thomas, :

Petitioner :

 :

v. : No. 1414 C.D. 2021

 : Submitted: April 6, 2023

Sysco Foods (Workers’ Compensation :

Appeal Board), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge1

HONORABLE ANNE E. COVEY, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: April 26, 2024

George B. Thomas (Claimant) petitions for review of an Order of the 

Workers’ Compensation Appeal Board (Board), which reversed a decision by a 

Workers’ Compensation Judge (WCJ) that denied a Modification Petition filed by 

Sysco Foods (Employer). Claimant argues: (1) the WCJ lacked jurisdiction over 

the Modification Petition because the named employer was not Claimant’s employer 

at the time of the work injury; and (2) to modify benefits based on a labor market 

survey, an employer must show a specific job vacancy existed within the usual 

employment area within the relevant geographical area and timeframe and that 

alternative nonunion employment is unavailable. See St. Joe Container Co. v. 

Workmen’s Comp. Appeal Bd. (Staroschuck), 633 A.2d 128 (Pa. 1993). Upon 

review, we affirm.

1 This matter was reassigned to the author on February 13, 2024.
2

I. BACKGROUND

On July 1, 2016, Claimant suffered an injury to his left leg, for which 

Employer issued a Notice of Compensation Payable accepting the injury as a left leg 

contusion, (WCJ Decision at 4.) The parties subsequently stipulated that Claimant’s 

injury should be expanded to include a lower left leg amputation and an adjustment 

disorder with mixed anxiety and depressed mood, which a WCJ approved in 

September 2018. (Id.) Claimant’s average weekly wage was adjusted to $1,584.83 

with a weekly compensation rate of $978.00. (Id.)

On March 7, 2019, the Modification Petition was filed listing “Sysco Foods” 

as the defendant/employer. (Id.; Reproduced Record (R.R.) at 6a.) The 

Modification Petition sought to reduce Claimant’s weekly benefits to $549.18 based 

on an earning capacity evaluation showing Claimant had an earning capacity of 

$660.00 per week. (WCJ’s Decision at 4; R.R. at 6a.) Claimant filed an answer 

denying same. (R.R. at 8a.)

A. Proceedings before the WCJ

In support of its Modification Petition, Employer presented the deposition 

testimony of Dr. Richard Schmidt, a board-certified orthopedic surgeon who 

examined Claimant, Dr. Gladys Fenichel, a board-certified psychiatrist who 

examined Claimant twice, and John Dieckman, a certified rehabilitation counselor 

and certified disability management specialist who performed a vocational interview 

and analysis of Claimant. Claimant testified in person before the WCJ and presented 

the deposition testimony of Gary Young, a certified rehabilitation counselor and 

certified disability management specialist, and Dr. Kenneth Weiss, who is board

certified in adult psychiatry and forensic psychiatry. Claimant also introduced a 
3

copy of a collective bargaining agreement (CBA) between Sysco Philadelphia, LLC,

and Teamsters Local Union No. 676 (Teamsters). 

Dr. Schmidt testified as follows.2 Dr. Schmidt examined Claimant on October 

1, 2018. Claimant, who was 43 years old, described his work injury to Dr. Schmidt, 

which resulted in his leg being amputated at the knee and a prosthesis with a 

microchip processor being fitted. (WCJ Decision Findings of Fact (FOF) ¶¶ 2(b)-

(c), (e), 5(b)-(c).) While Claimant originally used crutches or a walking stick, he no 

longer does. (Id. ¶¶ 2(c), 5(c).) Claimant can walk quickly but not jog or run. (Id.

¶¶ 2(d), 5(c).) Claimant is also able to bear full weight on his leg and drive a vehicle 

with an automatic transmission. (Id. ¶¶ 2(c), (f), 5(c), (f).) Claimant reported some 

phantom sensation in the leg, for which he takes pain medication as needed. (Id.

¶¶ 2(d), 5(c).) Following a physical examination, Dr. Schmidt diagnosed Claimant 

with a crush injury to the left leg, requiring left leg disarticulation. (Id. ¶¶ 2(e)-(f), 

5(d), (f).) In Dr. Schmidt’s opinion, Claimant could do light-duty work as he had no 

restrictions on sitting, was able to drive an automatic transmission, could walk a total 

of three and stand four hours out of an eight-hour day, and could occasionally lift 

and carry up to 20 pounds, though he could not climb ladders. (Id. ¶¶ 2(g), 5(g).) 

Based upon Dr. Schmidt’s review of the 13 job analyses prepared by Mr. Dieckman, 

Dr. Schmidt believed all 13 positions were within Claimant’s physical capacities.3 

(Id. ¶¶ 2(h), 5(h)-(i).)

2 Dr. Schmidt’s deposition testimony can be found in the Reproduced Record at 416a 

through 449a. The WCJ summarized Dr. Schmidt’s testimony in Findings of Fact 2 and 5. There 

is some overlap between the findings. Accordingly, we cite both findings in such instances.

3 The positions approved included Vector Security-Scheduler 2; Police and Fire Credit 

Union-call center customer service representative; Lucky Vitamin-call center customer service 

representative; Pacifico Auto Group-cashier; Turn 5-customer service representative; Winner 

Airport Parking-customer service representative; First Transit-dispatcher; Ardmore Toyota-

(Footnote continued on next page...)
4

Dr. Fenichel testified as follows.4 Dr. Fenichel first saw Claimant on January 

23, 2018. (Id. ¶ 3(b).) Recounting the work injury to Dr. Fenichel, Claimant was 

upset and tearful. (Id. ¶ 3(e), (p).) After seeing a psychiatrist once or twice in the 

hospital, Claimant started treating with Dr. Barbara Watson weekly in August 2016 

before changing to biweekly visits. (Id. ¶ 3(f), (q).) Before the accident, Claimant 

wanted to see a psychiatrist, and his desire to seek mental health treatment was 

compounded by the work injury. (Id. ¶ 3(g), (ee).) Claimant told Dr. Fenichel he 

felt lost as he did not expect to start over at his age, and because he felt his life was 

placed on hold after the accident, he was worried about the future. (Id. ¶ 3(h), (p).) 

Claimant is sometimes depressed, and his mood fluctuates. (Id. ¶ 3(i).) To stay 

happy and positive, Claimant developed strategies, such as getting out of the house, 

staying busy around the house, reading, watching less television, socializing more, 

participating in amputee support groups in person and online, and wanting to pursue 

swimming, something he had previously done. (Id. ¶ 3(i), (p).) Although he was 

released to physically return to work, Claimant was concerned about going back to 

the warehouse, which he described as the “scene of the crime.” (Id. ¶ 3(j).) In March 

2017, Claimant had attended a work function and while it was nice to see colleagues, 

he felt uncomfortable at the work site and did not want to stay long. (Id. ¶ 3(j).) 

Claimant reported to Dr. Fenichel that he experienced phantom pain, dreams about 

having a leg, and flashbacks, dreams, and nightmares, and felt vulnerable and 

lacking confidence. (Id. ¶ 3(k), (p).) Claimant’s mother, who visited him daily after 

his accident, has since been diagnosed with Stage IV cancer. (Id. ¶ (3(l).) He was 

automotive internet sales; Hertz-customer sales representative; MidAtlantic AAA-retail sales 

associate II; Harrah’s Chester Casino-alarm monitor; SugarHouse Casino-surveillance officer; and 

Beneficial Bank-customer service representative. (FOF ¶ 5(h).) 

4 Dr. Fenichel’s deposition testimony can be found in the Reproduced Record at 332a 

through 394a and is summarized by the WCJ in Finding of Fact 3.
5

inspired by the people who cared for him and has enrolled in community college to 

obtain an associate degree in nursing and intends to enroll in a registered nurse 

program. (Id. ¶ 3(m).) According to Dr. Fenichel, Claimant finds enjoyment hard 

and short-lived, constantly thinks about the injury, and was suicidal without a plan 

or intent and could not imagine hurting himself. (Id. ¶ 3(n), (p).) Previously, 

Claimant filed for bankruptcy, had a home in foreclosure, and was involved in an 

accident in which he struck a pedestrian with his vehicle, all of which were stressors. 

(Id. ¶ 3(o), (ee).) Dr. Fenichel reviewed Claimant’s records from Dr. Watson, which 

recounted much of the same things Claimant told Dr. Fenichel. (Id. ¶ 3(q)-(s).) In 

addition, the records revealed Claimant returned to bartending in March 2017, which 

Claimant reported as a positive experience. (Id. ¶ 3(r).) The records revealed 

Claimant also told Dr. Watson that he took some basic English and writing classes 

at a community college in early 2018 and was working with Dr. Watson to view the 

injury as an opportunity to expand underdeveloped latent skills and to go to school 

to pursue a career. (Id. ¶ 3(s).) Dr. Watson diagnosed Claimant with adjustment 

disorder with mixed anxiety and depressed mood, with which Dr. Fenichel agreed. 

(Id. ¶ 3(q), (s)-(t).) Dr. Fenichel did not believe Claimant suffered from posttraumatic stress disorder (PTSD), nor did Dr. Watson. (Id. ¶ 3(t), (v), (dd).) 

Following her initial evaluation, Dr. Fenichel believed Claimant could return to 

work without any psychiatric restrictions. (Id. ¶ 3(w).) 

Dr. Fenichel evaluated Claimant again on January 9, 2019. (Id. ¶ 3(x).) By 

this time, Claimant had not treated with Dr. Watson since August 2018 and had no 

further appointments with his orthopedic doctors. (Id. ¶ 3(x).) He was assisting his 

mother, who was in remission from cancer. (Id. ¶ 3(x).5) Claimant had earned six 

5 There are two paragraphs 3(x) in the WCJ’s Decision. This was the second. 
6

credits from a community college, earning an A and B, but did not continue as he 

told Dr. Fenichel he wanted to try to return to work, possibly even at Employer. (Id.

¶ 3(y)-(z), (ee).) At the latter examination, Claimant still reported suicidal thoughts 

without plan or intent, feeling depressed and sorry for himself, and lack of 

motivation. (Id. ¶ 3(bb).) Dr. Fenichel’s diagnosis remained unchanged. (Id. ¶ 

3(cc).) Once again, from a psychiatric perspective, Dr. Fenichel did not restrict 

Claimant’s ability to return to work, including the pre-injury position as a forklift 

operator. (Id. ¶ 3(gg).) 

Mr. Dieckman testified as follows.6 Mr. Dieckman is approved by the 

Department of Labor and Industry (L&I) to perform vocational interviews. (Id.

¶ 4(a).) He conducted a vocational analysis and, on October 18, 2018, a vocational 

interview of Claimant. (Id. ¶ 4(b)-(c).) In doing so, he reviewed Dr. Schmidt’s 

October 1, 2018 report, a July 13, 2017 report by a Dr. Ahn releasing Claimant with 

no orthopedic restrictions, the Functional Capacities Evaluation, and Dr. Fenichel’s 

psychiatric assessment. (Id. ¶ 4(b).) Claimant lived in the West Philadelphia area, 

had a driver’s license, and was able to drive a vehicle with an automatic 

transmission. (Id. ¶ 4(d)-(e).) Mr. Dieckman had a favorable initial impression of 

Claimant and was impressed by Claimant’s excellent communication skills. (Id.

¶ 4(f).) Claimant told Mr. Dieckman that Claimant’s symptoms vary from day to 

day, with good and bad days in terms of standing and walking. (Id. ¶ 4(h).) Claimant 

was beginning to learn Microsoft Office programs and knows how to email, search 

the internet, and text using a smartphone. (Id. ¶ 4(i).) Claimant had a limited work 

history, having worked 22 years for Employer as a member of the Teamsters, 15 

years of which were as an order picker and 7 years as a forklift driver. (Id. ¶ 4(j).) 

6 Mr. Dieckman’s deposition testimony can be found in the Reproduced Record at 498a 

through 566a and is summarized by the WCJ in Finding of Fact 4.
7

According to Mr. Dieckman, Claimant’s bartending skills were transferrable to 

customer service and Claimant could perform an even greater number of positions 

with some training. (Id. ¶ 4(k).) Mr. Dieckman focused on more sedentary positions 

and believed Claimant could work as a dispatcher, appointment clerk, cashier, 

security guard, surveillance monitor, general clerk, and street dispatcher. (Id.

¶ 4(k).) Mr. Dieckman referred Claimant to 14 positions and completed 13 job 

analyses. (Id. ¶ 4(k); R.R. at 531a.) The highest paying position had an earning 

capacity of $660 per week, and the average earning capacity of the 14 positions was 

$551.91 per week. (FOF ¶ 4(l).) None of the 14 positions were with the Teamsters. 

(Id. ¶ 4(m).) Mr. Dieckman did not contact anyone to determine Claimant’s union 

status or review the CBA. (Id. ¶ 4(m).) Mr. Dieckman was not certain Claimant 

could maintain employment if he had to call off due to leg pain or problems with his 

prosthesis. (Id. ¶ 4(o).) Mr. Dieckman also testified that he confirmed with Kathleen 

Easley of human resources that there were no positions within Claimant’s 

restrictions but, on cross-examination, stated he did not know with which Sysco 

entity she was employed. (R.R. at 523a, 548a.) 

Claimant testified as follows.7 Claimant originally testified he did not feel 

like he could work and was not looking for work but later testified that he believed 

he could perform work that did not require heavy lifting. (FOF ¶ 1(d).) Dr. Weiss 

encouraged Claimant to return to work. (Id.) Claimant testified his whole life, 

including his outlook and feelings of self-worth changed, and that he no longer feels 

like the same person. (Id. ¶ 1(e).) His depression and anxiety interfere with his 

relationship with his mother, for whom he cares and takes to appointments as 

needed. (Id. ¶ 1(e), (h).) Claimant’s amputated leg is sometimes badly swollen 

7 Claimant’s hearing testimony can be found in the Reproduced Record at 88a through 101a

and is summarized by the WCJ in Finding of Fact 1.
8

when he wakes, such that he cannot wear a prosthesis and must call his prosthetist 

for assistance. (Id. ¶ 1(f).) Claimant also experiences severe shooting nerve pain 

for which he takes medication. (Id. ¶ 1(g).) 

Claimant had not treated with Dr. Watson since March 2019 or Dr. Weiss 

since his initial evaluation, and although Claimant testified he intended to return to 

Dr. Watson, he had not yet made any appointments. (Id. ¶ 1(a).) Claimant has not 

paid union dues since the date of the work injury and was not sure of his seniority 

status. (Id. ¶ 1(b)-(c).) He received a withdrawal card because he was not working 

and thought the card might protect his seniority. (Id. ¶ 1(b).) Other union benefits, 

including health insurance, have been suspended, and Claimant is no longer accruing 

pension benefits. (Id.) 

Mr. Young testified as follows.8 Mr. Young is certified by L&I to conduct 

vocational evaluations and interviewed Claimant at the request of Claimant’s 

counsel on April 24, 2019. (Id. ¶ 6(a).) Claimant was a high school graduate, had a 

mixology degree, and had taken some basic courses at a local community college. 

(Id. ¶ 6(b).) Claimant had worked for Employer since 1994, and as a bartender at 

Xfinity Live since March 2012. (Id.) Mr. Young found Claimant to be very 

personable. (Id.) Mr. Young did not agree with Mr. Dieckman’s labor market 

survey as Mr. Young did not believe Claimant could perform the jobs Mr. Dieckman 

identified as they were physically and vocationally unlike Claimant’s past positions. 

(Id. ¶ 6(c), (h).) In Mr. Young’s opinion, it was impossible to conclude Claimant 

was qualified for any of the identified positions without significant testing. (Id.

¶ 6(c).) Based on Claimant’s psychological problems, Mr. Young did not believe 

Claimant should work in any security-type position. (Id. ¶ 6(d).) Because Claimant 

8 Mr. Young’s deposition testimony can be found in the Reproduced Record at 204a 

through 271a and is summarized by the WCJ in Finding of Fact 6.
9

did not use computers in past employment, Mr. Young thought Claimant was almost 

computer illiterate. (Id. ¶ 6(d).) Mr. Young admitted that bartending is considered 

a customer service position. (Id. ¶ 6(e).) Mr. Young understood Claimant was still 

a member of the Teamsters, in good standing, although Claimant was not required 

to pay dues, was not contributing toward his pension, and was not covered by the 

Teamsters’ health insurance. (Id. ¶ 6(j).) Mr. Young did not know Claimant’s 

seniority status with the Teamsters, although he understood that Claimant would 

retain that status provided he returned to work for Employer, did not reach out to the 

Teamsters or review the CBA, and relied on information provided by Claimant and 

Claimant’s counsel. (Id. ¶ 6(f)-(g), (j).) 

Dr. Weiss testified as follows.9 Dr. Weiss met with Claimant for two hours at 

Claimant’s counsel’s request on November 19, 2018. (Id. ¶ 7 (b)-(c).) Dr. Weiss 

reviewed Claimant’s medical records and obtained a history from Claimant. (Id.) 

Based thereupon and his experience, Dr. Weiss opined Claimant suffered from 

PTSD and explained how Claimant’s symptoms supported that diagnosis. (Id.

¶ 7(c)-(f), (m).) Dr. Weiss did not believe Claimant could return to work for 

Employer because Claimant would be overwhelmed by anxiety because of the 

PTSD. (Id. ¶ 7(i).) However, Dr. Weiss did believe it would be good for Claimant 

to resume working; he did not feel qualified to opine as to the positions identified by 

Mr. Dieckman. (Id. ¶ 7(k).) 

9 Dr. Weiss’s deposition was marked as Exhibit C-4 and admitted without objection at the 

May 14, 2020 hearing. (5/14/20 Hearing Transcript at 10, R.R. at 136a.) However, the WCJ 

Decision, despite summarizing Dr. Weiss’s testimony in Finding of Fact 7, indicates the transcript 

was not admitted. (See WCJ Decision at 2, table listing “Claimant/Employee Exhibits.”) The 

transcript does not appear in the Certified Record.
10

Claimant also introduced a copy of the CBA between Sysco Philadelphia, 

LLC, and the Teamsters.10 The CBA provided, among other things, that seniority 

terminates upon resignation, retirement, discharge for cause, layoff exceeding 24 

months, failure to report for 3 consecutive days when recalled, and absence due to 

illness for 24 consecutive months. (Id. ¶ 8(d); see also R.R. at 312a.) 

Based upon the evidence presented, the WCJ credited Claimant’s testimony 

in part and rejected it in part. (FOF ¶ 9.) Specifically, the WCJ found Claimant’s 

testimony about the work injury was uncontradicted. (Id. ¶ 9(a).) However, the 

WCJ found Claimant’s testimony about being able to return to work was inconsistent 

as Claimant initially testified he could not return to any type of work but later 

testified he felt he could return to work in some capacity. (Id. ¶ 9(b).) The WCJ 

further found Claimant’s testimony about the severity of his mental condition and 

the nature and extent of his ongoing pain was inconsistent with the medical 

testimony. (Id. ¶ 9(c)-(d).) 

The WCJ credited both Dr. Schmidt’s and Dr. Fenichel’s testimony and 

rejected Dr. Weiss’s opinions to the extent they conflicted with Dr. Fenichel’s

opinions. (Id. ¶¶ 10-12.) The WCJ also credited Mr. Dieckman’s testimony that the 

jobs he identified were within Claimant’s vocational and physical requirements. (Id.

¶ 13.) The WCJ rejected Mr. Dieckman’s testimony that there were no light-duty 

jobs available with Employer, explaining that there was no testimony from Employer 

about the availability of light-duty jobs and while Ms. Easley was identified, Mr. 

Dieckman did not know with which entity she was employed. (Id. ¶ 13(c).) In 

addition, the WCJ rejected Mr. Young’s testimony to the extent it contradicted Mr. 

Dieckman’s. (Id. ¶ 14.) In doing so, the WCJ explained Claimant’s testimony about 

10 The CBA is Exhibit C-2, can be found in the Reproduced Record at 292a through 324a,

and is summarized by the WCJ in Finding of Fact 8.
11

completing two community college courses and having at least a basic understanding 

of computers did not support Mr. Young’s opinion that Claimant was computer 

illiterate. (Id. ¶ 14(a).) The WCJ also reasoned the credible vocational, medical, 

and psychiatric evidence did not support Mr. Young’s opinion that Claimant was 

incapable of any work. (Id. ¶ 14(b).) As for Mr. Young’s opinion that Claimant 

would not be a reliable employee, the WCJ found that was “purely speculative in 

nature.” (Id. ¶ 14(d).) 

In summary, the WCJ found:

a. Claimant sustained a work-related injury on July 1, 2016, in the 

nature of a leg contusion, lower left leg amputation[,] and an adjustment 

disorder with mixed anxiety and depressed mood[;]

b. Claimant was capable of returning to work within the restrictions 

imposed by Dr. Schmidt and Dr. Fenichel[;]

c. Employer failed to offer credible evidence that there were no 

light[-]duty jobs available for [C]laimant at the time[-]of[-]injury 

employer[; and]

d. Employer failed to meet its burden of proving there were no 

light[-]duty jobs available at the time[-]of[-]injury employer.

(Id. ¶ 15; see also Conclusion of Law ¶ 2 (concluding Employer did not meet its 

burden of proof on the Modification Petition).) Accordingly, the WCJ denied and 

dismissed the Modification Petition. (WCJ Order.)

B. Appeal to Board 

Claimant and Employer cross-appealed to the Board from the WCJ’s decision. 

Relevant here, the Board rejected Claimant’s argument challenging Employer’s 

standing, deeming it waived for failure to raise it on the record before the WCJ. 
12

(Board Opinion (Op.) at 8.)11 The Board further concluded that Section 306(b)(2)

of the Workers’ Compensation Act (Act), 77 P.S. § 512(2),12 while requiring an 

employer to offer a claimant an open position within the claimant’s restrictions, 

“does not necessarily require proof of the absence of specific jobs with [an] employer 

as a prerequisite to expert testimony of earning power.” (Board Op. at 3.) Quoting

Rosenberg v. Workers’ Compensation Appeal Board (Pike County), 942 A.2d 245, 

251 (Pa. Cmwlth. 2008), the Board explained that “once the issue is raised with 

evidence, satisfaction of this element of proof is a prerequisite to [the] employer’s 

reliance on expert testimony of earning power.” (Board Op. at 10-11.) Here, the 

Board determined “Claimant did not raise this issue in his testimony,” and “[t]he 

Rosenberg court held that the claimant had the duty to place into the record prima 

facie evidence that a position was available with the employer the claimant was 

physically capable of performing,” and only “[o]nce the claimant did so [did] the 

employer b[ear] the burden.” (Id. at 11 (citing Kleinhagen v. Workers’ Comp. 

Appeal Bd. (KNIF Flexpak Corp.), 993 A.2d 1269 (Pa. Cmwlth. 2010)).) The Board 

concluded:

In sum, a claimant may defend against a modification petition by 

placing prima facie evidence into the record that a position was 

available with the [employer] that he was physically capable of 

performing before filing the modification petition. [] A[n employer]’s 

burden to prove the lack of a vacancy suitable for a claimant is triggered 

only after the claimant makes a prima facie showing that the vacancy 

existed during the relevant timeframe. . . . Because Claimant did not 

show a specific vacancy with [Employer] existed, it had no burden to 

11 Claimant also argued to the Board “that the WCJ erred in not molding the description of 

[the work] injury as per the evidence.” (Board Opinion at 2.) The Board also rejected this 

argument. (Id. at 9.) Claimant, however, no longer asserts this issue. 

12 Act of June 2, 1915, P.L. 736, as amended, added by Section 4 of the Act of June 24, 

1996, P.L. 350.
13

prove its non-existence. . . . Given the circumstances, this was an 

erroneous basis upon which to deny the Modification Petition.

(Board Op. at 11 (citations omitted).) Because the WCJ accepted Employer’s 

evidence, the Board determined Employer established the existence of substantial 

gainful employment within Claimant’s restrictions. (Id. at 11-12.) 

To the extent Claimant asserted the positions were not available due to 

Claimant’s union status, the Board noted that, in summarizing the evidence, the WCJ 

found Claimant testified he was uncertain of his union status, but no determination 

was made that Claimant would forfeit any qualitative benefit that would render the 

identified positions unavailable under the law. (Id. at 12 n.4 (citing Newhouse v. 

Workers’ Comp. Appeal Bd. (PJ Dick/Trumbull Corp.), 803 A.2d 828 (Pa. Cmwlth. 

2002); Lowe v. Workers’ Comp. Appeal Bd. (Temple Univ. Hosp.) (Pa. Cmwlth., No. 

1075 C.D. 2012, filed Jan. 16, 2013)).

13) Accordingly, the Board reversed the WCJ’s 

Decision denying the Modification Petition. 

Claimant filed a timely Petition for Review with this Court. Claimant’s 

arguments are two-fold. First, Claimant asserts the wrong employer was named in 

the Modification Petition, and, therefore, the WCJ was without jurisdiction to 

proceed. Second, Claimant argues Employer did not meet its burden of 

demonstrating there were no specific job vacancies within Claimant’s restrictions, 

particularly given Claimant’s union status. We address these issues in turn.

13 Unreported panel decisions of this Court may be cited for their persuasive value pursuant 

to Rule 126(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P 126(b), and Section 

414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
14

II. DISCUSSION

A. Jurisdiction

1. Parties’ Arguments

Claimant asserts the Modification Petition should have been dismissed for 

lack of subject matter jurisdiction as the wrong employer was named. Claimant 

points out that Sysco Foods filed the Modification Petition, although Sysco 

Philadelphia, LLC was the proper employer. Claimant argues counsel attempted to 

substitute the correct employer, albeit after all the evidence was presented, but 

claims “there was no recognition by the WCJ nor was there an [o]rder permitting the 

substitution or a stipulation of the parties.” (Claimant’s Brief (Br.) at 17.)14 While 

the Board concluded Claimant failed to raise the matter with the WCJ and, therefore, 

waived the issue, Claimant argues subject matter jurisdiction cannot be waived. 

Moreover, Claimant asserts that, “throughout the litigation” he raised “that the 

named employer was a non-existent entity and therefore it did not have standing to 

prosecute the [Modification P]etition.” (Id. at 6 n.1.) Claimant maintains the Board 

based its conclusion “upon the WCJ’s failure to mention the issue . . . rather than an 

examination of the record, which demonstrates that Claimant asserted and addressed 

the legal issue in his [b]rief.” (Id.) 

Employer argues Claimant did not previously challenge the ability of 

Employer to litigate the Modification Petition and, therefore, it is waived. Employer 

14 Claimant cites to an Interested Party Update Request Form, which Claimant includes in 

the Reproduced Record at page 632a. The Interested Party Update Request Form is not part of the 

Certified Record and, therefore, the Court cannot consider it. Indemnity Ins. Co. of N. Am. v. 

Bureau of Workers’ Comp. Fee Rev. Hearing Off., 245 A.3d 1158, 1165 (Pa. Cmwlth. 2021) (“This 

Court is confined to th[e] record, and it will not consider extra-record facts or evidence.”). To the 

extent the document should have been included in the Certified Record, “it is the responsibility of 

the [petitioner] to supply this Court with a complete record for purposes of review.” B.K. v. Dep’t 

of Pub. Welfare, 36 A.3d 649, 657-58 (Pa. Cmwlth. 2012) (citation omitted). 
15

argues the issue is one of standing, which Employer “clearly” has as the party 

responsible for paying Claimant’s benefits. (Employer’s Br. at 43.) 

2. Analysis

Preliminarily, Claimant asserts the issue of the wrong employer being named 

is an issue of both standing and subject matter jurisdiction and appears to use those 

terms interchangeably. However, standing and subject matter jurisdiction are two 

very distinct concepts and the consequences of not raising them are vastly different. 

Our Supreme Court has explained that, “[g]enerally, the doctrine of standing is an 

inquiry into whether the petitioner filing suit has demonstrated aggrievement, by 

establishing ‘a substantial, direct and immediate interest in the outcome of the 

litigation.’” Robinson Township, Washington County v. Commonwealth of 

Pennsylvania, 83 A.3d 901, 917 (Pa. 2013) (quoting Fumo v. City of Philadelphia, 

972 A.2d 487, 496 (Pa. 2009)). “[T]he core concept of standing is that a person who 

is not adversely affected in any way by the matter he seeks to challenge is not 

aggrieved thereby and has no standing to obtain a judicial resolution of his 

challenge.” Fumo, 972 A.2d at 496. Standing, like ripeness, is a question that goes

to whether an issue is justiciable. Ivy Hill Congregation of Jehovah’s Witnesses v. 

Dep’t of Hum. Servs., 310 A.3d 742, 755 (Pa. 2024). On the other hand, 

“[j]urisdiction relates solely to the competence of a particular court or administrative 

body to determine controversies of the general class to which the case presented for 

consideration belongs.” Id. Because standing is nonjurisdictional, it is waivable. In 

re Condemnation by Urban Redevelopment Auth. of Pittsburgh, 913 A.2d 178, 181 

n.6 (Pa. 2006). In contrast, “the question of [] subject matter jurisdiction . . . is 
16

nonwaivable, and, indeed, our Court is empowered to raise the issue sua sponte.” In 

re J.M.Y., 218 A.3d 404, 415 (Pa. 2019).

Here, there can be no reasonable dispute that the WCJ had subject matter 

jurisdiction over the Modification Petition. As we explained in Overhead Door 

Company of Lewistown, Inc. v. Workers’ Compensation Appeal Board (Gill), “[i]t is 

clear under Pennsylvania law that the Act provides the sole means by which an 

employee can recover from an employer or a named insurance carrier.” 819 A.2d 

635, 638 (Pa. Cmwlth. 2003). See also Section 303 of the Act, 77 P.S. § 481 

(providing the Act is the exclusive remedy for injured employees against their 

employers). Moreover, Section 413 of the Act provides, in relevant part, that a WCJ 

“may, at any time, review and modify or set aside a notice of compensation payable

and an original or supplemental agreement . . . .” 77 P.S. § 771. Thus, we reject 

Claimant’s argument that the WCJ lacked subject matter jurisdiction and, therefore, 

was without authority to act on the Modification Petition.

As to Claimant’s standing argument, we, like the Board, cannot discern where 

Claimant raised this issue before the WCJ to preserve it for appellate review by the 

Board and subsequently this Court. Claimant claims he raised the issue “throughout 

the litigation,” but the only place Claimant specifically identifies as having raised 

this issue before the WCJ is in Claimant’s brief to the WCJ. (Claimant’s Br. at 6 

n.1.) However, those briefs are not part of the Certified Record, and it is Claimant’s 

responsibility to ensure the record is complete. B.K. v. Dep’t of Pub. Welfare, 36 

A.3d 649, 657-58 (Pa. Cmwlth. 2012). Moreover, having reviewed the transcripts 

and filings, we found no record evidence of this issue having been raised in the 

proceedings before the WCJ. Before this Court, Claimant relies on the CBA as 

evidence that the proper employer should be Sysco Philadelphia, LLC. Claimant 
17

introduced the CBA, but it does not appear from a review of the hearing transcript 

at which the CBA was introduced, that the purpose for introducing the CBA was to 

question the identity of the proper employer; rather, it was introduced to support 

Claimant’s argument about job availability based on his union status. (See 1/23/20 

Hearing Transcript at 10, R.R. at 113a (“This is part of the St. Joe’s [C]ontainer

argument we were making throughout the proceedings.”).) In short, because there 

is no record evidence that Claimant properly preserved this issue in front of the WCJ 

and because standing is nonjurisdictional, In re Condemnation by Urban 

Redevelopment Auth. of Pittsburgh, 913 A.2d at 181 n.6, we agree with the Board 

that the issue has been waived.15 

B. Labor Market Survey

1. Parties’ Arguments

Claimant argues that under Section 306(b)(2) of the Act, an employer is 

obligated to offer a specific job vacancy to a claimant if the claimant can perform it. 

Claimant further argues an employer bears the burden of establishing job 

availability. According to Claimant, the WCJ found Employer did not offer credible 

evidence that there were no light-duty jobs available with Employer and, 

accordingly, did not meet its burden. Claimant argues the WCJ found there was no 

15 Even if the issue had not been waived, we note that Sysco Foods was identified as the 

employer/defendant in the September 17, 2018 WCJ decision, which granted Claimant’s review 

and modification petitions based upon the parties’ stipulation. (R.R. at 325a-31a.) In the parties’ 

stipulation that was approved and incorporated by the WCJ in that decision, Sysco Foods was 

identified as the employer. (Id. at 329a.) In addition, during the litigation of the Modification 

Petition, in response to Employer’s supersedeas request, Claimant submitted a statement

identifying his employer as Sysco Foods. (See R.R. at 160a (“I worked for Sysco Foods, since 

June of 1994 . . . .”).) Thus, it is disingenuous of Claimant to accept Sysco Foods as the proper 

employer when it is to his benefit but disavow Sysco Foods as the proper employer when it does 

not. 
18

evidence from Employer that would support the testimony of Mr. Dieckman that 

Employer had no light-duty jobs available. Specifically, the WCJ found that while 

Mr. Dieckman identified Ms. Easley as confirming this, Mr. Dieckman did not know 

with which entity Ms. Easley was employed. Claimant asserts the Board’s reversal 

of the WCJ’s decision constitutes an unlawful reweighing of the facts and credibility 

determinations, which are outside the Board’s purview. Moreover, according to 

Claimant, the WCJ found Claimant’s testimony relating to his union status credible. 

Despite this, Claimant asserts the Board inaccurately concluded the WCJ did not 

make any dispositive findings related to Claimant’s union status, and instead was 

merely summarizing Claimant’s testimony regarding same. Claimant points to 

Finding of Fact 6(i) for support that the WCJ did, in fact, find Claimant would be 

negatively impacted by applying for the positions recommended by Mr. Dieckman. 

Because Employer never submitted any evidence to show Claimant’s union status 

was no longer valid, Claimant argues the WCJ’s conclusion that Employer did not 

meet its burden was correct. Claimant asks the Court to vacate the Board’s order, 

reinstate the WCJ’s decision, and remand the matter for the WCJ to consider the 

reasonableness of the contest. 

Employer responds that while Section 306(b)(2) provides, if an employer has 

a specific job vacancy, it must offer it to the claimant, that Section “does not 

necessarily require proof of the absence of specific jobs with [an] employer as a 

prerequisite to expert testimony of earning power.” (Employer’s Br. at 32; see also 

id. at 34-35.) Nor does the Act require an employer to prove no such position exists. 

Employer asserts that Mr. Dieckman confirmed with Employer that no position was 

available, testimony to which Claimant did not object, and the WCJ found Mr. 

Dieckman credible. Even had Claimant objected to such testimony, Employer 
19

asserts any hearsay would have been corroborated by other evidence, specifically 

“the unrebutted medical opinion of Dr. Schmidt, and the psychiatric opinions of Dr. 

Fenichel and Dr. Weiss.” (Id. at 34.) For instance, Employer argues that Dr. Weiss’s 

testimony encouraging Claimant to return to work elsewhere “supported that there 

would be no positions ‘available’ to Claimant at [Employer] from a psychiatric 

perspective.” (Id.) Based on the evidence presented, Employer asserts it met its 

burden of proving Claimant could return to work. 

To the extent Claimant argues the positions identified were unavailable to 

Claimant due to Claimant’s union status, Employer asserts there is no evidence to 

support this. In particular, Employer points out that Claimant himself testified he 

was uncertain of his union status except that it had been suspended. Employer 

asserts it is clear from the CBA that seniority terminates for any employee absent 

from work for at least 24 consecutive months, which Claimant has been. According 

to Employer, Claimant also admitted he received a withdrawal card from the union, 

his union benefits, including receipt of health insurance and accrual of pension 

benefits, ceased, and he has not paid union dues. Moreover, Employer points out 

that prior to the work injury, Claimant did work a non-union position as a bartender

and even testified he considered returning there. Employer asks that the Board’s 

Order be affirmed. 

2. Analysis

Pursuant to Section 306(b)(2) of the Act, if a claimant receiving WC benefits 

can participate in substantial gainful employment and “the employer has a specific 

job vacancy the [claimant] is capable of performing, the employer shall offer such 

job to the [claimant].” 77 P.S. § 512(2) (emphasis added); see also 34 Pa. Code § 
20

123.301(a). L&I regulations provide that an employer can satisfy this duty by 

showing: 

(1) The employee was notified of a job vacancy and failed to respond.

(2) A specific job vacancy was offered to the employee, which the 

employee refused.

(3) The employer offered a modified job to the employee, which the 

employee refused.

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

34 Pa. Code § 123.301(c). The regulation further provides:

If the employer has presented evidence that no job vacancy exists, the 

employee may rebut the employer’s evidence by demonstrating facts 

which may include the following:

(1) During the period in which the employer has or had a duty to 

offer a specific job, the employer is or was actively recruiting for a 

specific job vacancy that the employee is capable of performing.

(2) During the period in which the employer has or had a duty to 

offer a specific job, the employer posted or announced the existence of 

a specific job vacancy, that the employee is capable of performing, 

which the employer intends to fill.

34 Pa. Code § 123.301(f). 

The Act and applicable regulations are silent as to whether the burden of proof 

in a modification petition first lies with an employer to prove the nonexistence of an 

available in-house job suitable for the claimant, or with the claimant to prove the 

employer does have such a job. We resolved that issue in Rosenberg. There, the

claimant provided uncontradicted evidence that a specific job within her capabilities 

existed with the employer after the claimant received a notice of ability to return to 
21

work and before the employer filed its modification petition. Specifically, the 

claimant actually worked for the employer in a light-duty position until the employer 

terminated the claimant, stating it did not have a provision for permanent light-duty 

work. The employer subsequently hired a new employee to fill the position in which 

the claimant had been working. We stated while the Act was silent as to the 

presentation of evidence, we were “mindful that the burden of proof may be placed 

on a party who must prove existence of a fact rather than on a party who must prove 

its non-existence.” Rosenberg, 942 A.2d at 251. This Court held that “once the 

issue is raised by evidence of a possible opening with employer, the employer has 

the burden of proof.” Id. (emphasis added). Because the claimant in Rosenberg

provided evidence that a suitable job with her employer was available, the Court 

found that the burden had shifted to the employer to prove that no such job existed 

and remanded the case accordingly. Id. at 252.

We reiterated this holding in Reichert v. Workers’ Compensation Appeal 

Board (Dollar Tree Stores), wherein we summarized the holding in Rosenberg as 

follows:

[A]n employer does not have the burden to prove the non-existence of 

available work at its own facility as a necessary element of the 

modification petition. Rather, a claimant may present evidence that 

‘[d]uring the period in which the employer . . . had a duty to offer a 

specific job,’ the employer had a specific job vacancy that it intended 

to fill that the claimant was capable of performing. The burden then

shifts to the employer to rebut the claimant’s evidence. 

80 A.3d 824, 829-30 (Pa. Cmwlth. 2013) (emphasis in original) (citations and 

quotation marks omitted). In that case, we found the claimant did not present 

evidence that the employer was actively recruiting for a specific job vacancy or that 

the employer had posted the existence of a specific vacancy. Id. at 830. The only 
22

evidence of job vacancies was presented by the claimant’s vocational expert, who 

testified that employer was recruiting for various positions through its website. 

However, his testimony was not credited by the WCJ because the vocational expert 

visited the website after the modification petition was filed. Id. 

Claimant, here, presented no evidence of a specific job opening with 

Employer between the filing of the Notice of Ability to Return to Work and 

Employer’s Modification Petition. Claimant did not even suggest this was the case 

or testify that he believed this to be so. Absent some evidence that an employer has 

an open and available position within the claimant’s work restrictions, an employer 

does not need to prove it does not have such a position available. Reichert, 80 A.3d 

at 829-30; Rosenberg, 942 A.2d at 251. Therefore, that the WCJ did not credit Mr. 

Dieckman’s testimony that Ms. Easley told him there were no openings with 

Employer because it was unclear for which Sysco entity Ms. Easley was employed 

is of no moment because Employer had no burden of showing no such position 

existed based upon Rosenberg and Reichert. Thus, the Board was correct in its 

holding reversing the WCJ on this ground.

Finally, to the extent Claimant argues the positions in the labor market survey 

were not “available” because they would result in him forfeiting union benefits, 

which is contrary to the Supreme Court’s holding in St. Joe Container, we again 

disagree. 

In St. Joe Container, the claimant, a union member, suffered a work-related 

injury and the employer subsequently offered the claimant a non-union position

within the claimant’s physical limitations. 633 A.2d at 129. The claimant refused 

the position, asserting he would lose his union benefits if he accepted a non-union 

position for more than six months. Id. The employer sought to modify the 
23

claimant’s benefits based on the refused job offer, which a referee16 granted 

concluding the claimant’s refusal was unreasonable because the employer offered to 

return the claimant to union status if the claimant was dissatisfied after six months. 

Id. The Board reversed in part, concluding the claimant should only be limited to 

partial disability benefits for the first six months and then returned to total disability 

benefits thereafter, and we affirmed. Id. The Supreme Court, on appeal, explained:

Given “the salutary purpose of work[ers]’ compensation to provide 

relief due to injuries caused in the workplace,” [] and the ultimate goal 

of making the injured employee whole, we believe that the extent of the 

injury caused in the workplace may reasonably include the loss of 

qualitative benefits associated with the claimant’s former position 

under certain limited circumstances.

Id. at 130 (quoting Kachinski v. Workmen’s Comp. Appeal Bd. (Vepco Constr. Co.), 

532 A.2d 374, 379 (Pa. 1987)). The Supreme Court held that the loss of union 

benefits would be one such circumstance, reasoning that while there, the claimant 

would not lose vacation, retirement, or health and life insurance benefits that the 

employer promised to maintain in the non-union position, the claimant would still 

lose other “protection and benefits provided by the union contract,” such as seniority, 

overtime, and bidding rights, to name a few. Id. at 131. The Supreme Court 

reasoned that “[a]ll other things being essentially equal, this is a clearly definable 

qualitative loss simply not recouped through [the] acceptance of the [non-union] 

position.” Id. As a result, the Supreme Court held the non-union position was not 

“available” for modification purposes.17 Id. 

16 WCJs were formerly known as referees. 

17 Because the employer had promised to reinstate the claimant’s union status after six 

months had the claimant accepted and disliked the nonunion position, the Supreme Court affirmed 

this Court’s decision finding the refusal was unreasonable for that period. St. Joe Container, 633 

A.2d at 132.
24

This Court applied the St. Joe Container reasoning in Newhouse, 803 A.2d 

828. There, the claimant, a heavy equipment operator, suffered a work injury, and 

was eventually offered a modified-duty position with the employer. Id. at 830. A 

WCJ granted the employer’s suspension petition, which the Board affirmed. Id. The 

claimant argued the Board erred as the modified-duty position was a non-union 

position, and “as a matter of law,” under the precedent, such a position was not 

considered an “available” position to a union member because of the loss of union 

benefits. Id. at 831. This Court rejected the claimant’s argument that St. Joe 

Container created a “bright[-]line test,” explaining that “we specifically adopted a 

‘subjective analysis of the entire array of benefits available through union 

membership when assessing the availability of a non-union position to a unionized 

claimant. . . .’” Id. (quoting ABF Freight Sys., Inc. v. Workers’ Comp. Appeal Bd.

(Iten), 744 A.2d 348, 352 (Pa. Cmwlth. 2000)). Because the claimant in Newhouse

“failed to cite to any evidence of record showing that [the c]laimant would lose any 

union benefit or status, or would be harmed in any way whatsoever by accepting the 

non-union position,” we concluded the Board did not err. Id.

In the instant matter, Claimant testified he received a withdrawal card from 

the Teamsters because he was not working and while he thought the card might 

protect his seniority, he was not sure. (FOF ¶ 1(b)-(c).) Claimant admitted he had 

not paid union dues since he was injured, was not accruing pension benefits, and was 

not covered by Teamsters’ health insurance, or receiving other union benefits. (Id.

¶ 1(b).) Claimant contends the Board wrongly concluded the WCJ did not make any 

dispositive findings about Claimant’s union status, pointing to Finding of Fact 6(i) 

as evidence that the WCJ did. Finding of Fact 6(i) states “Claimant did not apply 

for any of the jobs Mr. Dieckman found as none of them are represented by the 
25

Teamsters’ Union. These positions would have a negative impact on his union 

membership benefits.” (FOF ¶ 6(i).) However, this Finding of Fact, is merely 

summarizing the testimony of Mr. Young, who also admitted he did not know 

Claimant’s seniority status as he had not contacted the Teamsters or reviewed the 

CBA and, instead, was relying on information provided to him by Claimant and 

Claimant’s counsel. (Id. ¶ 6(f)-(g), (j).) Further, the WCJ did not credit Mr. Young’s 

testimony. (Id. ¶ 14.) In addition, the WCJ, in reviewing the CBA, found seniority 

would have terminated in the event of 24 consecutive months of absence. (Id. ¶ 

8(d).) Thus, similar to the claimant in Newhouse, Claimant here did not cite any 

evidence he would lose any union benefits or status, and “Claimant’s failure to 

produce or enter any such evidence results in a failure to establish the non-union 

position[s identified in the labor market survey] as unavailable.” Newhouse, 803 

A.2d at 831. See also Washington v. Workers’ Comp. Appeal Bd. (US Airways, Inc.)

(Pa. Cmwlth., No. 2368 C.D. 2011, filed June 1, 2012), slip op. at 7 (“It was [the 

c]laimant’s burden . . . to show that the jobs identified in the labor market survey 

would cause h[im] to lose union status or benefits.”)

III. CONCLUSION

Based on the foregoing reasons, we conclude the Board did not err in reversing 

the Decision of the WCJ and, accordingly, affirm.

RENÉE COHN JUBELIRER, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

George B. Thomas, :

Petitioner :

 :

v. : No. 1414 C.D. 2021

 : 

Sysco Foods (Workers’ Compensation :

Appeal Board), :

Respondent :

O R D E R

NOW, April 26, 2024, the Order of Workers’ Compensation Appeal Board, 

dated November 22, 2021, is AFFIRMED.

RENÉE COHN JUBELIRER, President Judge