                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Philadelphia Eagles, LLC,                       :
                  Petitioner                    :
                                                :   No. 1103 C.D. 2015
               v.                               :
                                                :   Submitted: December 11, 2015
Workers’ Compensation Appeal                    :
Board (Harris),                                 :
                Respondent                      :



BEFORE:        HONORABLE DAN PELLEGRINI, President Judge1
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                                  FILED: May 6, 2016


               The Philadelphia Eagles, LLC (Employer) petition for review from the
June 1, 2015 order of the Workers’ Compensation Appeal Board (Board), which
affirmed a Workers’ Compensation Judge’s (WCJ) decision denying Employer’s
petition to modify Antoine Harris’s (Claimant) compensation benefits for failing to
comply with section 306(b) of the Workers’ Compensation Act (Act).2




      1
         This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.

      2
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §512.
                          Facts and Procedural History
            The underlying facts are undisputed. On August 13, 2010, Claimant was
injured during the course of his employment as a professional football player. By
order dated December 12, 2011, a WCJ adopted the parties’ stipulation of facts,
acknowledging that Claimant had sustained a compensable injury to his right foot and
awarded him total disability benefits at a rate of $845.00 per week. On May 12,
2012, Employer filed a petition to modify compensation benefits, alleging that
Claimant possessed an earning power of at least $1,000.00 per week based on a labor
market assessment. Claimant filed an answer denying the material allegations of
Employer’s petition and alleging that work is available with Employer which had not
been offered to him pursuant to section 306(b) of the Act. The matter was assigned
to a WCJ and a series of hearings were held.
            Michael Smychynsky, Employer’s vocational expert, testified that he
performed a labor market analysis in Philadelphia, Pennsylvania and, based on the
information he obtained, opined that Claimant had an expected earning capacity of
$1,000.00 per week. Smychynsky stated that he reviewed a work-release report
issued by James Beskin, M.D., issued Claimant a Notice of Ability to Return to
Work, and contacted Employer to inquire whether it had any employment available
that fit within the scope of the work release. Smychynsky testified that he was
referred to Eric Rousch, Employer’s Human Resources Coordinator, who executed an
affidavit indicating that Employer did not have a specific job vacancy available for
Claimant. (Reproduced Record (R.R.) at 9a-10a, 12a-14a.)
            Smychynsky stated that he conducted a vocational interview with
Claimant on March 16, 2012.       During the interview, Smychynsky learned that
Claimant maintained his permanent address in Lawrenceville, Georgia, and that he



                                          2
had graduated from the University of Louisville with a degree in mass
communication. Smychynsky also learned that Claimant wanted to use his degree for
sports broadcasting or some other sports-related activity; however, Smychynsky
noted that Claimant had no internships, post-graduate education, or training in sports
broadcasting. Smychynsky explained that the only experience Claimant had other
than playing professional football was charity work in Columbus, Ohio, where he
operated a sports camp during the summer for approximately three-hundred children.
(R.R. at 17a-20a.)
              Smychynsky testified that he performed a labor market survey and
identified eighteen jobs in the Philadelphia area that he believed would be
vocationally appropriate for Claimant. Smychynsky noted that the employers he
contacted were willing to provide Claimant with training and employment due to the
fact that he possessed a college degree. He stated that he completed job analyses for
five positions3 and provided them to Dr. Beskin to determine whether the positions
were physically suitable for Claimant.             Smychynsky confirmed that Dr. Beskin
approved the proposed jobs as physically suitable for Claimant. (R.R. at 21a-29a.)
              Smychynsky opined that the eighteen jobs he identified were within
Claimant’s physical capabilities because most of the positions were sedentary and his
understanding of Dr. Beskin’s work release was that Claimant could engage in
virtually any position except for one which would require running, push-off skills, or
quick changes of direction. He stated that the identified jobs were within Claimant’s


       3
         Smychynsky explained that the job analyses he provided to Dr. Beskin for review were: a
dispatcher position with the University of Pennsylvania; a communications officer position with
Philadelphia Community College; a communications officer position with Swarthmore College; a
sales position with Access Security Corporation; and a sales representative position with Global
Sports Publications. (R.R. at 26a.)



                                               3
vocational capabilities because they are entry level positions that do not require
previous experience and many of the positions prefer or require a college degree.
(R.R. at 29a-31a.)
             Smychynsky reviewed positions available with Employer and testified
that they were not suitable for Claimant because most of the jobs were intern
positions requiring the applicant to be within one year of graduation. He noted that
Employer had a database manager position and a lead designer position available but
opined that they were not suitable for Claimant because Employer requested a degree
in quantitative business discipline and graphic design respectively, which Claimant
did not possess.     Smychynsky confirmed that Employer had a digital services
coordinator position available but noted that it requested two to three years of digital
or web-based experience. Similarly, Smychynsky stated that Employer had an e-
commerce coordinator position available; however, it also required one to three years
of specific experience. (R.R. at 31a-35a.)
             Smychynsky testified that Employer had other jobs available, including
a part-time event staff position, but noted that they required residence in the
Philadelphia area. Smychynsky acknowledged that all the positions he identified in
his labor market survey would require Claimant to reside in the Philadelphia region.
Smychynsky explained that Employer did not have any positions available in
Lawrenceville, Georgia, where Claimant maintains his permanent residence, and
concluded that Employer’s available positions were not suitable for Claimant because
he did not meet the preferred requirements. He confirmed that Employer did not
make any job offers to Claimant. (R.R. at 31a-35a, 46a-47a.)
             Dr. Beskin, a board certified orthopedic surgeon specializing in foot and
ankle orthopedics, testified that he performed an independent medical examination



                                             4
(IME) of Claimant on January 16, 2012, opined that he had reached maximum
medical improvement from his injuries, and stated that no significant ongoing care
would be needed. Dr. Beskin explained that Claimant suffered a non-contact injury
when he was running, made a cut, and felt a sudden, acute pain in his foot. He noted
that Employer’s team physician diagnosed Claimant with an injury to the Lisfranc
portion of his ligament and, subsequently, a foot and ankle specialist recommended
surgery, which was performed. (R.R. at 155a-60a.)
             Dr. Beskin testified that there were no apparent complications from the
surgery and that Claimant’s recovery was fairly routine; however, he noted that
Claimant complained of persistent pain or aching in the area of the injury and felt that
the activities required in professional football exacerbated his symptoms. Dr. Beskin
opined that Claimant would never be able to play professional football again, but
explained that Claimant had reached maximum medical improvement status as of the
date he performed the IME because no additional intervention would change the
outcome of Claimant’s condition and testified that he would place no restrictions on
Claimant’s ability to walk or climb stairs.        Dr. Beskin further testified that
Smychynsky provided him with five job analyses forms, that he reviewed all of the
jobs set forth in the earning capacity assessment, and that he approved Claimant for
the jobs because the symptoms Claimant described were related to high-energy
situations such as running and cutting and none of the jobs required those types of
activities. Dr. Beskin also opined that Claimant was physically able to perform the
positions that were available with Employer. (R.R. at 161a, 165a-71a.)
             Claimant testified that he was injured in 2010, has resided in
Lawrenceville, Georgia, since 2009, and obtained a bachelor’s degree in
communications from the University of Louisville in 2004. Claimant stated that the



                                           5
only job he had while in high school was at a hardware store performing manual
labor for a single summer. Claimant also stated that he did not perform any work
after he graduated from high school and before starting college but noted that he did
assist his former basketball coach with a sports camp for a weekend during that
period. Claimant further testified that the only job he performed during his college
years was as a security guard for Churchill Downs for one week during a single
summer. (R.R. at 205a-10a.)
             Claimant further testified that he played for both the Tennessee Titans
and Atlanta Falcons before signing with Employer in 2010. He stated that, during the
period before signing with Employer, he did not perform any professional work
outside of football. Claimant noted that he operates a nonprofit football camp for
kids in Ohio but clarified that it is a volunteer activity and not a job. He testified that
he created a limited liability company and received a grant from the National Football
League to operate his camp.        Claimant explained that his camp was a one-day
summer camp, that it ran from 9:00 a.m. to 5:00 p.m., and that he operated the camp
for two years. He further explained that he obtained insurance for over three-hundred
kids; negotiated and procured equipment and facilities, such as venues and hotel
rooms; marketed the camp, including designing logos and generating radio and social
media advertisements; recruited volunteers and paid staff members; created a
secondary plan; obtained sponsorships for food, beverages, clothing, and prizes;
obtained and negotiated talent, i.e., celebrity coaches; and performed event planning,
including booking and coordinating flights, hotels, dinners, and various functions.
(R.R. at 210a-15a.)
             Claimant also testified that he has real estate experience; specifically, he
stated that he purchased a property for his parents in Ohio but noted that he does not



                                            6
charge them to reside there. He also stated that he purchased a property in Atlanta for
rental purposes but clarified that he has never had any tenants. Claimant further
testified that he has not performed any other business ventures, held any job for any
employer, or completed any unpaid internships since his injury in 2010. However, he
indicated that he has performed volunteer work on two occasions since his 2010
injury and added that he is currently pursuing a license to sell insurance. (R.R. at
215a-20a.)
             Claimant confirmed that he resided in temporary housing during his
tenure with Employer and never actually relocated to Philadelphia. He stated that he
never looked for work in Philadelphia after his injury in 2010 but noted that he may
have stayed in Philadelphia if there was an opportunity to do so. Claimant testified
that he wears orthotics in his shoes, occasionally experiences pain if he is on his feet
for a long period of time, and has performed physical therapy for strengthening and
conditioning the muscles in his foot.          He acknowledged that he felt some
improvement in his foot and that his condition has not changed since the IME. (R.R.
at 221a-27a.)
             Claimant testified that he does not receive and has not applied for any
benefits other than workers’ compensation. He stated that he has not done any self-
employment activities and has not applied for any jobs other than the insurance
program since 2010 because he does not have adequate experience.              Claimant
confirmed that he reviewed the job analyses forms Smychynsky provided to Dr.
Breskin and opined that he would likely be able to perform them without issue. He
acknowledged that he never applied for a job with Employer since his injury in 2010
and testified that Employer did not make any job offers to him or advise him of any




                                           7
available openings.     He further testified that he would consider moving to
Philadelphia if he was offered a good job. (R.R. at 228a-33a, 238a-39a.)
            Kristie Pappal (Pappal) testified that she has been Employer’s Director
of Human Resources for approximately six years and is responsible for overseeing
Employer’s hiring. She stated that Employer is a very high profile organization that
receives resumes and inquires year-round regardless of whether a position is available
and testified that, on average, a posted position receives over one-thousand
applications. Pappal explained that Employer can be very selective in its hiring
because it receives a high number of applicants for every position, previous customer
service experience is a baseline for an applicant’s consideration, and workers’
compensation claimants receive no hiring preference. (R.R. at 246a-48a, 254a.)
            Pappal further testified that Employer compiled a list of jobs that were
available during the period between January 25, 2012, and May 12, 2012.            She
reviewed the positions and stated that the only applicants that are considered for
Employer’s internship positions are current college or graduate school students or
students who have graduated in the past twelve months and that Claimant would not
be eligible for any internship positions. Pappal also stated that Employer does not
currently have, nor has it ever had, positions available in the Lawrenceville, Georgia,
or Atlanta, Georgia, areas. (R.R. at 248a-49a.)
            Pappal explained that Claimant was not qualified for any of Employer’s
available positions because he did not have the preferred level of experience.
Specifically, Pappal stated that Claimant was not qualified because: he did not have
previous experience using online catalogues or using online analytics to process
merchandise orders preferred for an e-commerce merchandise coordinator position;
he did not have previous producing and editing experience necessary for a position as



                                          8
an Eagles Television Network producer; he did not have experience handling large
scale event logistics preferred for a position as an events coordinator; and he did not
have the customer service experience necessary for a sales associate or game-day
staff position. Pappal testified that previous experience is the most important factor
for Employer when considering applicants and confirmed that Employer never
contacted Claimant to advise him of any potential job openings. (R.R. at 250a-52a,
262a, 264a.)
               By decision and order circulated October 25, 2013, the WCJ denied
Employer’s petition for modification of compensation benefits. The WCJ found
Smychynsky and Pappal’s testimony indicating that Claimant was not qualified for a
marketing coordinator position unpersuasive and not credible. (WCJ’s Finding of
Fact No. 9a.)      Specifically, the WCJ noted that Pappal’s testimony regarding
Claimant’s lack of experience handling large scale event logistics was factually
wrong; Pappal incorrectly concluded that Claimant does not possess a college degree;
and the marketing coordinator job description was not attached to Smychynsky’s
deposition.    Accordingly, he determined that Claimant had the educational and
vocational capacity to perform the marketing coordinator position and concluded that
Employer failed to comply with section 306(b)(2) of the Act because it did not notify
or consider Claimant for the marketing coordinator position and, therefore, could not
rely on the labor market survey.
               Employer appealed the WCJ’s decision to the Board, arguing that: the
WCJ’s findings were not supported by sufficient, competent evidence because
Employer was only obligated to offer Claimant an available position within reach of
the Claimant’s current residence; the WCJ failed to apply relevant regulations
providing that an employer’s obligation to offer a specific job vacancy is applied



                                          9
consistent with the employer’s usual business practice; the WCJ erred in using his
opinion as a basis to find that Claimant was qualified for the marketing coordinator
position in the absence of expert testimony; and the WCJ erred when he issued a
decision without identifying and explaining why he rejected certain evidence.
              The Board affirmed the WCJ, reasoning that, although the language in
Motor Coils MFG/WABTEC v. Workers’ Compensation Appeal Board (Bish), 853
A.2d 1082 (Pa. Cmwlth. 2004), indicates that the offered job must be within reach of
the claimant’s residence, a literal application of the language ignores the purpose of
the decision, i.e., to ensure a claimant is offered a position that he is capable of
performing. The Board conceded that the WCJ may have exceeded his authority
when he determined that Claimant was capable of performing the marketing
coordinator position; however, it determined that he ultimately came to the correct
conclusion.     The Board noted that Employer bears the burden to prove the
unavailability of a position when Claimant raises the availability of a suitable job and,
because a WCJ is free to accept or reject the testimony of any witness and rejected
Employer’s witnesses’ testimony, it reasoned that Employer failed to meet its burden
to prove that Claimant could not perform the marketing coordinator position.
              On appeal to this Court,4 Employer argues that the WCJ erred in
rejecting its uncontroverted evidence that Claimant was not qualified to fill its
specific job vacancy pursuant to its usual business practices. Employer also argues
that the WCJ erred when he determined that Employer did not comply with section
306(b) of the Act because it did not offer Claimant a job in Pennsylvania.

       4
          Our standard of review in workers’ compensation appeals is limited to determining
whether an error of law was committed, constitutional rights were violated, or whether necessary
findings of fact are supported by substantial evidence. Fruehauf Trailer Corporation v. Workers’
Compensation Appeal Board (Barnhart), 784 A.2d 874, 876 n.2 (Pa. Cmwlth. 2001).



                                              10
                                      Discussion
             An employer seeking to modify a claimant’s compensation benefits must
either:

             (1) offer to the claimant a specific job that it has available,
             which the claimant is capable of performing, or (2) establish
             “earning power” through expert opinion evidence including
             job listings with employment agencies, agencies of the
             Department of Labor and Industry, and advertisement in a
             claimant’s usual area of employment.
Reichert v. Workers’ Compensation Appeal Board (Dollar Tree Stores/Dollar
Express and Specialty Risk Services, Inc.), 80 A.3d 824, 829 (Pa. Cmwlth. 2013)
(citation omitted).
             Pursuant to the Act:

             “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. . . . If the
             employe does not live in this Commonwealth, then the
             usual employment area where the injury occurred shall
             apply. If the employer has a specific job vacancy the
             employe is capable of performing, the employer shall offer
             such job to the employe. . . .
77 P.S. §512 (emphasis added).
             Additionally, section 123.301 of the regulations of the Bureau of
Workers’ Compensation (Bureau) provides that:

             (a) For claims for injuries suffered on or after June 24,
             1996, if a specific job vacancy exists within the usual
             employment area within this Commonwealth with the liable
             employer, which the employee is capable of performing, the
             employer shall offer that job to the employee prior to


                                           11
             seeking a modification or suspension of benefits based on
             earning power.

                                    *      *     *


             (c) The employer’s duty under subsections (a) and (b) may
             be satisfied if the employer demonstrates facts which may
             include the following:

                                    *      *     *

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

                                    *      *     *

             (e) The employer’s duty under subsections (a) and (b) does
             not require the employer to hold a job open for a minimum
             of 30 days. Job offers shall be made consistent with the
             employer’s usual business practice. . . .
34 Pa. Code §123.301(a)-(e) (emphasis added).
             Employer argues that the WCJ erred when he failed to apply Employer’s
usual business practices in assessing Pappal’s determination that Claimant was not
qualified for any of its specific job vacancies that were available during the relevant
period.
             Section 123.301(e) of the Bureau’s regulations requires that job offers
are made “consistent with the employer’s usual business practice.” Here, Pappal
testified that Employer is a high profile organization, receives over one-thousand
applications for any posted position, and is very selective when making hiring
decisions. Pappal also testified that customer service is a necessary prerequisite for
any applicant’s consideration and that Claimant was not qualified for an events
coordinator position because he did not have experience handling large scale event
logistics. Moreover, Smychynsky testified that Claimant did not meet any of the


                                          12
requirements for Employer’s available positions because he lacked necessary
experience and did not reside in the Philadelphia area. However, the WCJ disagreed
and concluded that Claimant was qualified for a marketing coordinator position with
Employer.     He rejected Employer’s contrary testimony as not credible because:
Pappal’s testimony regarding Claimant’s inexperience handling large-scale events
was factually wrong; Pappal incorrectly concluded that Claimant does not possess a
college degree; and the marketing coordinator job description was not attached to
Smychynsky’s deposition.
             It is well settled that the WCJ “has complete fact-finding discretion as to
the credibility of witnesses and evidentiary weight, and such findings will not be
disturbed if supported by substantial evidence.” Harding v. Workers’ Compensation
Appeal Board (Arrowhead Industrial), 706 A.2d 896, 899-900 (Pa. Cmwlth. 1998).
A WCJ’s “finding can only be reversed if not supported by substantial, competent
evidence or if arbitrary and capricious.”5 Pritchett v. Workers’ Compensation Appeal
Board (Stout), 713 A.2d 1214, 1217 (Pa. Cmwlth. 1998). Indeed, we have previously
held that a court may overturn a WCJ’s credibility determination “only if it is
arbitrary and capricious or so fundamentally dependent on a misapprehension of
material facts, or so otherwise flawed, as to render it irrational.” Casne v. Workers’
Compensation Appeal Board (Stat Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth.
2008). This Court has stated that “[t]he meaning of arbitrary includes ‘founded on
prejudice or preference rather than on reason or fact.’”           Id. at 19 n.5 (citation
omitted). Our Supreme Court has held that a capricious disregard of evidence exists

      5
        “Substantial evidence has been defined as such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Bethenergy Mines, Inc. v. Workmen’s
Compensation Appeal Board (Skirpan), 612 A.2d 434, 436 (Pa. 1992) (citation omitted).




                                             13
“when there is a willful and deliberate disregard of competent testimony and relevant
evidence which one of ordinary intelligence could not possibly have avoided in
reaching a result.” Station Square Gaming L.P v. Pa. Gaming Control Board, 927
A.2d 232, 237 (Pa. 2007).             Similarly, section 422(a) of the Act provides that
“[u]ncontroverted evidence may not be rejected for no reason or for an irrational
reason.” 77 P.S. §834.
                As to the finding that Claimant did not have a college degree, it is clear
that Pappal did not testify that Claimant did not possess a college degree. Rather, she
expressly stated that Claimant did have a college degree.6
                As to the WCJ’s finding that Employer’s testimony was not credible,
specifically, that Smychynsky’s expert testimony was deficient because a job
description for the marketing coordinator position was not attached to his deposition,
the basis for this finding is erroneous. Although the job description was not attached
to Smychynsky’s deposition, the marketing coordinator position was included in the
list of jobs that he was asked to review. (R.R. at 45a, 49a-50a, 69a.)
                Regarding the WCJ’s finding that Pappal’s testimony was factually
wrong because he determined that Claimant had sufficient experience handling large-
scale events such that he was capable of performing the marketing coordinator

       6
           Q: [Claimant] does have a degree, correct?

         A: Again, based on his deposition, yes. If I saw his resume, I would not know that he has a
        degree.
(R.R. at 259a-60a.)

        Q: Let’s look further down [the] page at the qualifications. He does have a Bachelor’s
       degree, does he not?

        A: Based on his deposition, I understand that. Looking at a resume I would not know that.
(R.R. at 260a-61a.)



                                                 14
position, the Board correctly acknowledged that this analysis was improper because
the WCJ exceeded his authority when he made his determination solely based on
Claimant’s testimony and resume. See also 77 P.S. §512(2) (“‘Earning power’ shall
be determined by the work the employe is capable of performing and shall be based
upon expert opinion evidence . . . .”). It is undisputed that Claimant operated a one-
day summer camp on two occasions for approximately three-hundred kids. However,
this evidence is not sufficient expert evidence to serve as a basis for determining what
work Claimant is capable of performing. Although the Board affirmed the WCJ on
other grounds because it determined that credibility determinations are solely the
WCJ’s prerogative, we articulated above why those findings were unsupported by the
record and, consequently, arbitrary and capricious.
              Accordingly, the Board’s order is reversed. The matter is remanded to
the Board with specific instructions to remand to the WCJ to determine whether
Claimant was qualified for any available positions with Employer based on an
accurate reading of the record.7




                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge




       7
         Based on the foregoing disposition, we will not address Employer’s additional argument
that the WCJ erred when he determined that Employer did not comply with section 306(b) of the
Act because it did not offer Claimant a job in Pennsylvania.



                                              15
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Philadelphia Eagles, LLC,                :
                  Petitioner             :
                                         :    No. 1103 C.D. 2015
            v.                           :
                                         :
Workers’ Compensation Appeal             :
Board (Harris),                          :
                Respondent               :


                                     ORDER


            AND NOW, this 6th day of May, 2016, the June 1, 2015 order of the
Workers’ Compensation Appeal Board (Board) is reversed.            The matter is
remanded to the Board with specific instructions to remand to the Workers’
Compensation Judge for further findings consistent with this opinion.
            Jurisdiction relinquished.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Philadelphia Eagles, LLC,                       :
                  Petitioner                    :
                                                :
               v.                               : No. 1103 C.D. 2015
                                                : Submitted: December 11, 2015
Workers’ Compensation Appeal                    :
Board (Harris),                                 :
                Respondent                      :


BEFORE:        HONORABLE DAN PELLEGRINI, President Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


DISSENTING OPINION BY
PRESIDENT JUDGE PELLEGRINI                                   FILED: May 6, 2016


               The issue in this case is whether the Employer satisfied its burden to
modify Antoine Harris’s (Claimant) compensation benefits based on a labor market
survey conducted in accordance with Section 306(b) of the Workers’ Compensation
Act (Act).1 This provision allows an employer to modify compensation benefits
based on a labor market survey that, considering the employee’s residual productive
skill, education, age and work experience, determines what type of substantial gainful
employment exists in the usual employment area and, based on that survey,
determines the claimant’s earning power and modifies compensation accordingly.

      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §512.
Section 306(b)(2) of the Act, though, provides that “[i]f the employer has a specific
job vacancy the employe is capable of performing, the employer shall offer such job
to the employe.” If it does not, benefits may not be modified. I respectfully dissent
because the majority has incorrectly found that an employee-claimant has to have the
qualification exactly listed on the employer’s job description, not just that he must be
capable of performing such a job.


             In this case, the Workers’ Compensation Judge (WCJ) accepted
Philadelphia Eagles, LLC’s (Employer) labor market survey that would allow for
Claimant’s employment in various positions, including a marketing coordinator
position, with a starting wage of approximately $1,000 per week. The WCJ rejected,
however, the testimony of Employer’s Director of Human Resources that Claimant
did not meet the requirements of the posted positions, including that of a “ticket
taker” or a “tour guide,” because he had no customer service experience. Based on
the positions that Employer’s labor market survey found that Claimant was capable of
performing, the WCJ found that Claimant was capable of performing the market
coordinator position and the WCJ denied Employer’s request to modify benefits.


             The majority reverses the WCJ’s decision because it finds the WCJ’s
rejection of Employer’s Director of Human Resources and the person who conducted
the labor market survey testimonies to the extent that Claimant was not capable of
performing the job to be unpersuasive and not credible and was arbitrary, capricious
and unsupported by the record. It so found because the WCJ based his credibility
findings on the fact that the Director of Human Resources testified that Claimant did
not have a college degree when she, in fact, testified that Claimant did have a college



                                       DRP - 2
degree; that the person that conducted the labor market survey was deficient because
a job description for the marketing coordinator position was not attached to his
deposition when the marketing coordinator position was included in the list of jobs
that he was asked to review; and the WCJ’s finding that the Director of Human
Resources’ testimony was wrong because Claimant had experience handling large-
scale events.


                The WCJ did make an error in finding that Employer’s Director of
Human Resources testified that Claimant did not have a college degree. However,
the WCJ’s finding that the person who conducted the labor market survey did not
review the marketing coordinator position because it was not attached to his
deposition is not so clear. Simply because it was included in the list of jobs he was
asked to review does not mean that he did, especially when Employer’s Director of
Human Resources did not discuss the marketing coordinator positon in her testimony
even though she specifically mentioned other positions. This is a matter for the WCJ
to determine, not this court. As to whether he had experience handling large-scale
events, it is undisputed that Claimant operated a one-day summer camp on two
occasions for approximately 300 children. Whether that was sufficient experience is
for the factfinder, in this case, the WCJ, to make.


                None of the above is crucial, though, to the outcome because the fatal
flaw in the majority’s position is its assumption that if a claimant does not meet the
exact description contained in the employer’s job listing, an employer is not required
to offer the job to the employee-claimant. That is not what the law provides. Under
Section 306(b)(2) of the Act, a claimant is not required to be the best qualified person



                                        DRP - 3
for the position and to meet all the requirements in the job posting; all that this
provision requires is that the employee-claimant be offered an available position that
“the employe is capable of performing.” In finding of fact #9a, the WCJ found that
“the position of Philadelphia Eagles marketing coordinator was vacant and available
... and that [Claimant] had the educational and vocational capacity to perform this
position.”2


               There is substantial competent evidence to support that finding, given
that the person who conducted the labor market survey found that Claimant is capable
of being a market coordinator, as well as evidence that he has organized events.

       2
         The majority seems to take the position that an employer is free to be as selective as it
wants to in filling the position. In making that argument, it relies on Section 123.301(e) of the
Bureau of Workers’ Compensation’s regulations which provides:

               The employer’s duty under subsections (a) and (b) does not require
               the employer to hold a job open for a minimum of 30 days. Job offers
               shall be made consistent with the employer’s usual business practice.
               If the making of job offers is controlled by the provisions of a
               collective bargaining agreement, the offer shall be made consistent
               with those provisions.

34 Pa. Code §123.301(e).

        As can be seen, this goes to how long “job offers” have to be held open; it does not give
carte blanche to an employer to add “squishy” job requirements that are freely waivable, only
acting as a shield to avoid its obligations under the Act and other laws. All that Section 306(b)(2)
of the Act requires is that the person be “capable” of performing the job. Even if we were to accept
the majority’s interpretation of the regulations, “the power of an administrative agency to prescribe
rules and regulations under a statute is not the power to make law, but only the power to adopt
regulations to carry into effect the will of the Legislature as expressed by the statute.” Volunteer
Firemen’s Relief Association of the City of Reading v. Minehart, 227 A.2d 632, 635-636 (Pa. 1967).
When an agency adopts regulations at variance with the statute, the regulations, and not the statute,
fall by the wayside. See Xerox Corporation v. City of Pittsburgh, 327 A.2d 206 (Pa. Cmwlth.
1974); George A. Fuller Co. v. City of Pittsburgh, 327 A.2d 191 (Pa. Cmwlth. 1974).



                                             DRP - 4
Moreover, neither the person who conducted the labor market survey nor the Director
of Human Resources ever testified that Claimant was incapable of performing any of
the positions – including the “ticket taker” position. Those positions had a salary
range well above Claimant’s presumed earning power of $1,000 a week. This does
not show that the job required someone with more qualifications, only that they
wanted someone that had more experience than Claimant.


            Accordingly, for the foregoing reasons, I respectfully dissent.



                                      ____________________________________
                                      DAN PELLEGRINI, Senior Judge




                                      DRP - 5
