           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cynthia Brozman,                    :
                      Petitioner    :
                                    :              No. 1697 C.D. 2016
           v.                       :              Submitted: May 5, 2017
                                    :
Workers’ Compensation Appeal Board, :
(Commonwealth of Pennsylvania),     :
                      Respondent :

BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                               FILED: October 5, 2017

              Cynthia Brozman (Claimant) petitions for review from an order of the
Workers’ Compensation Appeal Board (Board) that affirmed the order of a Workers’
Compensation Judge (WCJ) modifying her workers’ compensation benefits.
Claimant argues the Board erred in construing the burden of proof under Section
306(b)(2) of the Workers’ Compensation Act (Act).1 Specifically, she contends an
employer bears the burden to prove it has no available work internally before it may
conduct a labor market survey. Upon review, we affirm.


                                       I. Background
              For approximately 10 years, Claimant worked for the Pennsylvania
Liquor Control Board (Employer) as a store clerk, a civil service position. She took


       1
        Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §512(2), added by the Act of June 24,
1996, P.L. 350.
a civil service examination dedicated to that position. Her duties included lifting
and carrying between 40 and 60 pounds.


            In September 2005, Claimant sustained an injury when she slipped on
a case of broken wine and fell. A notice of compensation payable (NCP) was issued,
acknowledging work injuries to her lower back, left arm, and left knee. The NCP
provided payment of compensation at a rate of $358.00 based on an average weekly
wage (AWW) of $521.03.


            In 2013, Claimant underwent an independent medical examination
(IME) by Dr. Joshua Auerbach (Dr. Auerbach), who released Claimant to perform
sedentary work. Then, Monique Sheppard (Vocational Expert) performed a labor
market survey (LMS) based on Claimant’s capacity.


            Employer filed a petition to suspend benefits as of March 6, 2014, based
on the LMS. Shortly thereafter, Claimant filed a review petition seeking expansion
of the work injury to include cervical and lumbar-related issues, and a penalty
petition. The three petitions were consolidated and heard by the WCJ.


            In support of its suspension petition, Employer submitted the deposition
testimony of Vocational Expert. Based on Claimant’s capacity and work experience,
she located five positions that were physically and vocationally appropriate for
Claimant. The positions include: sales specialist for Wells Fargo ($14.39 per hour);
dispatcher for DeSales University ($12.32 per hour); surveillance operator for Sands
Casino ($10.00 per hour); teller at Wells Fargo Bank ($10.00 per hour); and, retail



                                         2
sales agent at Enterprise Rent-A-Car ($10.00 per hour). The pay for each of the
positions is based on a 40-hour week.


             Based on these positions, which Dr. Auerbach approved as within
Claimant’s capabilities, Vocational Expert opined Claimant had an earning capacity
of $453.68 per week. Relevant here, she acknowledged Employer did not submit
documentation to her indicating that no positions were available with Employer
before obtaining the LMS.


             Employer also submitted the deposition testimony of two board-
certified orthopedic surgeons, Dr. Auerbach, who examined Claimant in 2013, and
Dr. Roger Componovo (Dr. Componovo), who examined Claimant in 2015
(collectively, Employer’s Medical Experts). Dr. Auerbach testified as to Claimant’s
capabilities based on his 2013 IME and based on his review of her medical records.
Dr. Componovo testified as to Claimant’s capabilities based on his 2015 exam.


             Dr. Auerbach’s examination revealed tenderness throughout the left
knee with internal derangement, post arthroscopy and nerve decompression. He also
noted a lumbar disc herniation at the L4-5 and cervical radiculopathy with right arm
pain, that was possibly related to a separate incident at physical therapy. He testified
Claimant advised him that while undergoing traction for her knee, she had an acute
onset of pain in her back with numbness, tingling and cramping in her leg. However,
Dr. Auerbach did not think it was possible to injure the neck during traction to
improve the knee. He did not relate the neck or back pain to her work injury. He
also did not recommend additional treatment for the knee.



                                           3
             Dr. Componovo testified Claimant related the same history regarding
her injury during physical therapy. His physical examination revealed symptom
magnification during the neck examination. He also noted “a lot of superficial
tenderness to very mild palpation across the knee.” WCJ Op., 1/22/16, Finding of
Fact (F.F.) No. 4 (b). He diagnosed left knee pain post contusion and two surgeries.
He opined Claimant fully recovered from the low back contusion sustained at the
time of the work injury.


             Employer’s Medical Experts did not attribute Claimant’s lumbar or
cervical issues to the work injury.      Employer’s Medical Experts also opined
Claimant was capable of returning to work. Dr. Auerbach opined that, as of 2013,
Claimant could perform sedentary work, based on her lifting restrictions, and
difficulty bending, stooping, twisting, and working on her hands and knees. F.F.
No. 3(i). Dr. Componovo opined that, as of January 2015, Claimant was capable of
medium duty work. F.F. No. 4(h).


             In addition, Employer presented the testimony of Brenda Coakley who
oversaw all hiring (Manager). She testified regarding Employer’s status as a
dominantly civil-service agency. As a result, Employer fills positions through the
State Civil Service Commission. She confirmed that in the geographic area of the
Wine and Spirits store where Claimant was employed, there were no positions other
than Claimant’s pre-injury job. She explained the sole position for which Claimant
was qualified was a store clerk, which required lifting of 40-60 pounds. She testified
there was no work available within Claimant’s medical restrictions. F.F. No. 7(i);
Reproduced Record (R.R.) at 225a.



                                          4
              In support of her review petition, Claimant testified on her own behalf.
She also submitted the deposition testimony of her treating physician, Dr. Kenneth
Zaul, who specializes in pain management (Treating Physician).


              Treating Physician began treating Claimant in November 2013 for
internal derangement of the knee, low back pain, herniated discs in the lumbar spine,
cervical disc displacement, and cervical radiculopathy. He treats Claimant monthly
for renewal of pain medication, including opioids that affect her attention span and
ability to drive. He also performed facet block injections and injections to her knee.
He opined Claimant was not capable of working, and noted her decreased
concentration. F.F. No. 8(g).


              Claimant testified regarding her symptoms, emphasizing her pain
worsened since the work injury. She claimed her left knee constantly hurts, and she
experiences pain in her neck and back. She admitted she did not apply to any of the
positions set forth in the LMS.


              Based on the credited evidence, the WCJ denied Claimant’s review
petition, but awarded penalties for Employer’s late payment of bi-weekly benefits. He
also denied Employer’s suspension petition because the earning capacity did not
exceed Claimant’s AWW. However, the WCJ determined Claimant was capable of
performing sedentary work and had an earning capacity of $400 per week.2 Thus, he
modified her compensation, reducing Claimant’s benefits to $80.68 per week.



       2
        The WCJ arrived at $400, the low end of the wage range, instead of the average of the
wages for the five positions, based on Claimant’s “many years of unemployment.” F.F. No. 13.

                                             5
             The WCJ made specific findings as to each witness’ credibility,
explaining his reasons for crediting one expert over another. He credited the
unrefuted testimony of Manager and Vocational Expert. He credited Claimant’s
testimony only to the extent her complaints related to her left knee. He did not credit
Claimant’s testimony as to her alleged injuries while undergoing physical therapy.
He credited Employer’s Medical Experts, and based on their testimony, he found
Claimant’s lumbar and cervical issues did not relate to the work injury. He also
credited Employer’s Medical Experts’ testimony that Claimant is capable of
sedentary work. The WCJ only found Treating Physician credible “to the extent [his
testimony] [was] consistent with the testimony of [Medical Experts.]” F.F. No. 11.
He discredited Treating Physician’s testimony relating numerous injuries to the
physical therapy incident in 2013, noting it was unsupported by any medical
documentation. He emphasized Treating Physician only began treating Claimant in
2013, several years after the work injury. He also discredited Treating Physician’s
testimony that Claimant is totally disabled from all employment. Id.


             Claimant appealed to the Board,3 arguing the WCJ erred in denying her
review petition. She also asserted Employer did not meet its burden to prove work
was unavailable to Claimant before conducting the LMS. She questioned the
sufficiency of Manager’s testimony to show Employer had no available positions.


             The Board affirmed the WCJ, reasoning his decision was supported by
substantial, credible evidence. Claimant now petitions for review.
                                     II. Discussion

      3
        Employer did not appeal the WCJ’s denial of its suspension petition or the grant of
Claimant’s penalty petition.

                                            6
              On appeal,4 Claimant challenges the modification of benefits. She
contends Employer did not meet its burden to prove a position was not available
with the Commonwealth that Claimant was capable of performing. She also asserts
Employer did not establish the nonexistence of internal light-duty positions.


              The only issue before us is whether Employer met its burden of proof
with regard to modification of Claimant’s benefits.             We begin by examining
Claimant’s premise, “that Employer has not met its preliminary burden to show that
it does not have work generally available within [Claimant’s] present medical
capacities.” Pet’r’s Br. at 15.


              Pursuant to Section 413(a) of the Act, a WCJ may modify or suspend a
claimant’s benefits if the claimant’s disability decreased. 77 P.S. §772. In this
context, disability means the “loss of earning power caused by the work injury.”
Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830, 841 (Pa.
2013) (citation omitted).


              Section 306(b) of the Act recognizes partial disability, providing that
compensation will be based on the difference between a claimant’s pre-injury wages
and her post-injury earning power. 77 P.S. §512. Under Section 306(b)(2) of the
Act “an employer may seek modification of a claimant’s benefits by either[:] [(1)]
offering the claimant a specific job that it has available that [s]he is capable of
performing[;] or [2] establishing earning power through expert opinion evidence.”

       4
         Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact were supported by substantial evidence, and whether constitutional
rights were violated. Dep’t of Transp. v. Workers’ Comp. Appeal Bd. (Clippinger), 38 A.3d 1037
(Pa. Cmwlth. 2011).

                                              7
Kleinhagan v. Workers’ Comp. Appeal Bd. (KNIF Flexpak Corp.), 993 A.2d 1269,
1275 (Pa. Cmwlth. 2010) (emphasis added) (internal quotation marks omitted).


             A claimant may defend against a modification petition by placing prima
facie evidence into the record “that a position was available with employer that [she]
was physically capable of performing” before filing the modification petition.
Kleinhagan, 993 A.2d at 1275. An employer’s burden to prove no position was
available and suitable for a claimant only arises once the claimant puts forth prima
facie evidence that the employer had a vacancy she could fill. Id.; see Reichert v.
Workers’ Comp. Appeal Bd. (Dollar Tree Stores/ Dollar Express & Specialty Risk
Servs., Inc.), 80 A.3d 824 (Pa. Cmwlth. 2013).


                                A. Burden of Proof
             Analyzing an employer’s burden under Section 306(b)(2), an en banc
panel of this Court explained “that the burden of proof may be placed on a party who
must prove existence of a fact rather than on a party who must prove its non-
existence.” Rosenberg v. Workers’ Comp. Appeal Bd. (Pike Cnty.), 942 A.2d 245,
251 (Pa. Cmwlth. 2008) (en banc). Claimant’s contention that Employer bore the
burden to prove the nonexistence of a position in its stores is thus contrary to
established precedent. Rosenberg; Reichert; Kleinhagan.


             Essentially, Claimant disregards that Section 306(b)(2) does not require
an employer to offer a claimant a position. Written in the disjunctive, the statute
directs Employer to offer an available, suitable position to Claimant, only if such a
position exists. As a defense to modification, Claimant had the ability to offer



                                          8
evidence that: (1) Employer had a vacant position available prior to filing its petition;
(2) Claimant was capable of performing that position despite her medical
restrictions; and, (3) Employer did not offer the position to her before seeking
modification.


             Here, Claimant did not submit any evidence to support such a defense.
Claimant did not show Employer had an existing vacancy for a position, much less
a position within her medical restrictions. Rosenberg (an employer’s burden arises
only after claimant makes a prima facie showing of available position). Indeed,
Claimant did not refer to any available positions within her capabilities.
Consequently, the burden never shifted to Employer to establish the nonexistence of
an available, suitable position. Reichert.


             In support of her recitation of Employer’s burden, Claimant cites our
en banc decision in Rosenberg without recognizing a crucial evidentiary distinction
that triggered the burden shift. In Rosenberg, the claimant worked for Pike County
post-injury in a light-duty capacity for several months before her termination. In the
termination letter, the county stated it did not have a permanent light-duty position
to accommodate the claimant’s restrictions. However, the county then replaced the
claimant with a new hire, in what appeared to be the same clerical position. The
claimant offered unrebutted testimony on this point. Because the WCJ did not make
a finding regarding the suitability of the claimant for a full-time position (akin to
that of the new hire), we remanded.
             Relevant here, we concluded the claimant’s testimony regarding her
termination asserted the defense that the employer had an available position she was



                                             9
capable of performing. Id. at 250-51. We held “once the issue is raised by evidence
of a possible opening with employer, [then] the employer has the burden of proof.”
Id. at 251 (emphasis added).5


               Here, Claimant submitted no evidence to trigger a burden shift. Rather,
Claimant contends Employer’s “sheer size … (and the Commonwealth at large as an
employer) signifies the existence of possibly available and viable jobs with
[Employer] or another entity within the Commonwealth that could accommodate
[her] medical restrictions.” Pet’r’s Br. at 18.


               We reject as wholly without merit Claimant’s contention that size alone
“is enough to trigger [Employer’s] legal duty to prove it could not provide viable
work to Claimant prior to seeking an outside assessment.” Id. (italics added, underline
in original). Speculation in a brief does not constitute evidence to sustain a prima
facie showing. Moreover, the Employer in this circumstance is the agency, the
Pennsylvania Liquor Control Board, not the entire workforce receiving a paycheck
from the Commonwealth of Pennsylvania.




                                   B. Substantial Evidence




       5
          On further appeal after remand, we deferred to the WCJ and his credibility determinations
regarding the suitability of the position at issue. Rosenberg v. Workers’ Comp. Appeal Bd. (Pike
Cnty.) (Pa. Cmwlth., No. 1374 C.D. 2009, filed February 5, 2010), 2010 WL 9512688
(unreported). Ultimately, we affirmed the modification of benefits. Id. (availability of position is
not sufficient, the position must also be suitable, meaning within a claimant’s medical restrictions).

                                                 10
             Because Claimant’s arguments are predicated on her flawed
understanding of Employer’s burden of proof, they lack merit. Nonetheless, we
review them briefly.


             We are unpersuaded by Claimant’s implication that the LMS was of no
effect because Employer did not prove the nonexistence of a position before
obtaining the LMS. First, Employer had no such legal burden because Claimant did
not trigger it. Second, a labor surveyor is under no obligation to contact “[Employer]
about open and available positions at its retail stores that Claimant was capable of
performing prior to conducting the labor market survey.” Reichert, 80 A.3d at 831
(emphasis in original).     Claimant’s challenge to the LMS’ validity because
Vocational Expert did not verify nonexistence of a position with Employer first
discounts this Court’s clear authority to the contrary on that point. Id.


             We also reject Claimant’s argument that Manager’s testimony does not
constitute substantial evidence to support modification here. That Manager did not
testify that no light-duty positions were available in all 600 Wine & Spirits stores is
of no moment for two reasons. One, the WCJ found Claimant was capable of
performing sedentary work, not light-duty work. F.F. Nos. 12-13. Two, Manager’s
testimony pertained to the relevant geographic area. Section 306 of the Act is limited
to the “usual employment area,” meaning the “relevant geographic area.”
Phoenixville Hosp., 81 A.3d at 842. Thus, Manager was not required to investigate
employment opportunities at all 600 Wine & Spirit stores.




                                          11
             Nevertheless, the record reflects Employer had no positions within
Claimant’s physical capabilities within the relevant geographic area.        Manager
testified to that fact, which testimony was credited and unrebutted. F.F. Nos. 7(i), 9;
R.R. at 225a. Manager also confirmed Claimant was only qualified to work as a store
clerk, for which the lifting requirements exceeded her physical capabilities. Id.


                                   III. Conclusion
             For the foregoing reasons, we affirm the Board’s order.




                                        ROBERT SIMPSON, Judge




                                          12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cynthia Brozman,                    :
                      Petitioner    :
                                    :   No. 1697 C.D. 2016
           v.                       :
                                    :
Workers’ Compensation Appeal Board, :
(Commonwealth of Pennsylvania),     :
                      Respondent :


                                ORDER

           AND NOW, this 5th day of October, 2017, the order of the Workers’
Compensation Appeal Board is AFFIRMED.




                                  ROBERT SIMPSON, Judge
