            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edwin Plotts,                           :
                        Petitioner      :
                                        :
            v.                          :   No. 2277 C.D. 2014
                                        :   Submitted: August 14, 2015
Workers’ Compensation Appeal            :
Board (TriTech Systems, Inc.),          :
                        Respondent      :


BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                            FILED: October 15, 2015

            Petitioner Edwin Plotts (Claimant) petitions for review of an order of
the Workers’ Compensation Appeal Board (Board). Following remand from the
Board, a Workers’ Compensation Judge (WCJ) rendered factual findings regarding
Claimant’s earning power based on a labor market survey submitted into evidence
during the WCJ’s hearings. The Board affirmed the WCJ’s findings. The only
question on appeal to this Court is whether the WCJ erred in crediting the labor
market survey where the survey failed to consider Claimant’s adjudicated mental
health injury in identifying available and suitable jobs. We affirm the Board’s
order.
            On November 30, 2006, Claimant sustained a cervical strain while
working for TriTech Systems, Inc. (Employer), from which he became totally
disabled.   Claimant received benefits pursuant to a Notice of Compensation
Payable (NCP). On March 2, 2007, Claimant returned to work with no loss of
wages, and, pursuant to a supplemental agreement, Employer suspended
Claimant’s disability benefits.       On March 18, 2008, Employer reinstated
Claimant’s benefits because of a recurrence of his disability.
             On August 10, 2009, Claimant filed a claim petition alleging that he
sustained a new work injury on March 18, 2008, involving his neck, upper
extremities, and lower back. On September 9, 2009, Employer filed a modification
petition seeking a reduction in Claimant’s benefits based upon its assertion that,
based upon a labor market survey, Claimant was able to return to work in some
capacity. On September 27, 2010, Claimant filed a review petition, seeking to add
a lower back injury to the injuries identified in the NCP. On December 27, 2010,
Claimant filed another review petition, seeking to add a mental health injury to the
injuries identified in the NCP. On January 24, 2011, Claimant filed a claim
petition, asserting that he sustained a work-related injury to his right shoulder on
January 8, 2008.
             The WCJ, after consolidating the modification, review, and claim
petitions, conducted several hearings. The WCJ concluded that (1) Employer
failed to sustain its burden of proof with regard to its modification petition;
(2) Claimant failed to sustain his burden of proof that he sustained a work-related
low back injury; (3) Claimant sustained his burden of proof that he sustained a
mental health injury as a consequence of his identified work-related injury, but
Claimant did not suffer any disability as a result of that injury; (4) Claimant failed
to sustain his burden of proof as to his alleged January 8, 2008 right shoulder
injury; and (5) the injury that Claimant alleged occurred on March 18, 2008,
constituted a recurrence of his initial work-related injury.


                                           2
             Both Employer and Claimant filed appeals from the WCJ’s decision
with the Board.      Employer contended that the WCJ erred in denying its
modification petition. Claimant contended only that (1) the WCJ erred in finding
that Claimant did not sustain a work-related lower back injury and (2) the WCJ
erred in concluding that (a) Claimant did not sustain his burden of proof regarding
his alleged lower back injury, and (b) the incident on March 18, 2008, resulted in
the recurrence of Claimant’s original work injury. Claimant did not dispute the
WCJ’s finding and conclusion that Claimant’s mental health injury was not
disabling.
             The Board, addressing only the issues raised by the parties, concluded
that the WCJ erred in its evaluation of Employer’s modification petition. The
Board remanded the matter to the WCJ for the sole purpose of rendering new
findings of fact, based upon the existing record, which included Employer’s labor
market survey, regarding the appropriate measure of Claimant’s earning power.
After the WCJ issued new findings and conclusions on that discrete issue,
Claimant again appealed to the Board. In that second appeal, Claimant asserted
that the WCJ did not render a reasoned decision, contending that “the WCJ failed
to consider Claimant’s psychological injuries related to the work incident.”
(Reproduced Record (R.R.) at 465.) Claimant, pointing to the WCJ’s finding that
Claimant will need medication and therapy to treat his mental health injury,
asserted that the WCJ failed to render findings regarding the suitability of the jobs
in the labor market survey in light of Claimant’s mental health injury.
             The Board rejected Claimant’s arguments, reasoning that its remand
order called only for the WCJ to render findings regarding Claimant’s earning
power based upon the labor market survey and to order a corresponding


                                         3
modification of benefits.        The Board concluded that the WCJ “appropriately
confined his decision and order on remand to that specified issue.”                    (Board
Opinion at 4.) The Board also noted that the WCJ had determined that Claimant’s
mental health injury was not disabling. (Id. n.5.)
              Claimant petitioned this Court for review of that order,1 raising the
single question of “[w]hether the Board erred in finding that the jobs contained in
the labor market survey were suitable for the Claimant.” In his brief, Claimant
argues generally that Employer failed to meet part of its burden of proof with
regard to the suitability of jobs reflected in the labor market survey in light of
Claimant’s mental health injury. Although an employer bears the burden of proof
in seeking to obtain a modification of benefits,2 in this case, the WCJ
contemporaneously considered Claimant’s review petition seeking to add the
mental health injury as one of Claimant’s identified injuries and Employer’s
modification petition.      In that regard, Claimant bore the burden of proof to
demonstrate that he sustained a work-related injury that was not identified in the
initial notice of compensation payable or that a new injury had arisen as a
consequence of the original injury.           Aldridge v. Workers’ Comp. Appeal Bd.
(Kmart Corp.), 113 A.3d 861, 867 n.7 (Pa. Cmwlth.), appeal denied, 117 A.3d 298
(Pa. 2015). In order to obtain benefits for a work-related injury, a claimant also


       1
          Our review is limited to considering whether substantial evidence supports necessary
factual finding, and whether an error of law or violation of constitutional rights was committed
below. 2 Pa. C.S. § 704.
       2
         “An employer may obtain a modification . . . of [a] claimant’s benefits based on
evidence of [a claimant’s] earning power alone.” Anderson v. Workers’ Comp. Appeal Bd. (F.O.
Transport), 111 A.3d 238, 246 (Pa. Cmwlth. 2015).



                                               4
must demonstrate that he or she has suffered a loss of earning power because of the
injury. See Zuchelli v. Workers’ Comp. Appeal Bd. (Indiana Univ. of Pa.), 35 A.3d
801, 804 (Pa. Cmwlth. 2011) (citing Potere v. Workers’ Comp. Appeal Bd.
(Kemcorp), 21 A.3d 684, 689-90 (Pa. Cmwlth. 2011) (claimant bears burden to
establish connection between work and injury and that disability arose as
consequence of injury) and Coyne v. Workers’ Comp. Appeal Bd. (Villanova
Univ.), 942 A.2d 939, 945 (Pa. Cmwlth.), appeal denied, 960 A.2d 457 (Pa. 2008)
(burden of proof never shifts to employer to prove disability)).
             Here, the WCJ found that Claimant did sustain a mental health injury
but that the injury did not cause any disability. Claimant did not challenge that
determination in his first appeal to the Board. On remand, then there was no need
for the WCJ to “take into account” the mental health injury that Claimant proved to
be work-related, because the WCJ had already determined that the mental health
injury did not cause any disability.   Consequently, Employer, in its modification
petition, was not required to prove that the jobs in the labor market survey were
suitable to accommodate Claimant’s non-disabling mental health injury.         The
WCJ, therefore, could rely on Employer’s labor market survey on remand, and the
Board did not err in affirming the WCJ’s decision following remand.




                                P. KEVIN BROBSON, Judge




                                          5
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edwin Plotts,                          :
                        Petitioner     :
                                       :
            v.                         :   No. 2277 C.D. 2014
                                       :
Workers’ Compensation Appeal           :
Board (TriTech Systems, Inc.),         :
                        Respondent     :


                                     ORDER


            AND NOW, this 15th day of October, 2015, the order of the Workers’
Compensation Appeal Board is AFFIRMED.




                              P. KEVIN BROBSON, Judge
