           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gary Koehler,                            :
                         Petitioner      :
                                         :
                   v.                    :     No. 3 C.D. 2017
                                         :     Submitted: May 12, 2017
Workers’ Compensation Appeal             :
Board (SEPTA),                           :
                      Respondent         :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                           FILED: August 28, 2017


      Gary Koehler (Claimant) petitions for review of an Order of the Workers’
Compensation Appeal Board (Board), dated December 6, 2016, that affirmed the
decision of the Workers’ Compensation Judge (WCJ) to grant Southeastern
Pennsylvania    Transportation   Authority’s     (Employer)   petition   to   modify
compensation benefits. Claimant contends Employer did not satisfy its statutory
burden of proving it did not have a position available for Claimant before relying
on an earning power assessment. Claimant also argues Employer failed to produce
sufficient medical evidence to support its petition. For the following reasons, we
affirm.
      Claimant worked for Employer as a transmission repair specialist until May
24, 2006, when he suffered a lumbar herniated disc injury during the course and
scope of his employment. A Notice of Compensation Payable (NCP) was issued
on June 9, 2006.           Following an Independent Medical Examination (IME)
conducted on May 15, 2014, Employer issued a Notice of Ability to Return to
Work on July 1, 2014. On November 26, 2014, Employer filed a modification
petition based on a labor market survey (LMS) showing that vocationally and
physically appropriate work was generally available to Claimant.1 On December
18, 2014, Claimant filed an answer, denying the averments in the modification
petition.
      The matter was assigned to a WCJ who held hearings on the petition. In
support of its petition, Employer presented the deposition testimony of the
vocational expert who conducted the LMS and the physician who performed the
IME. The vocational expert testified that on September 3, 2014, she personally
met with Claimant and learned about his previous job experiences and education
level. During the meeting, Claimant informed her that he takes Percocet three
times a day for pain as prescribed by his treating physician. The vocational expert
did not review any records from Claimant’s treating physician and instead relied
upon a report by the IME physician, who authorized Claimant to return to light-
duty work with a 20-pound lifting restriction. Additionally, the vocational expert
contacted a representative from Employer to inquire as to whether any modified-
duty positions were available with Employer. According to the vocational expert,
the representative replied that Employer was not under a contractual duty to rehire


      1
          Employer previously filed a modification petition in 2006, which was denied.



                                                2
Claimant and that Claimant was dropped from Employer’s rolls after exhausting all
of his leave in 2008.
       Based on her interview with Claimant and the IME, the vocational expert
identified seven available jobs within Claimant’s physical and vocational
capabilities. These jobs include an entry-level sales/customer service position with
Vector Marketing; a service advisor at Ray Price; a front desk agent with Great
Wolf Lodge; a telemarketer at Volt Payments; a picker at Cintas;2 a delivery driver
with Pizza Hut; and an entry-level picker at Corporate Resource Services. She
created a LMS, in which she concluded, based on the identified jobs, that Claimant
had an earning power between $320 and $800 per week.
       The IME physician testified as follows.            He reviewed Claimant’s past
medical history and performed an IME of Claimant on May 15, 2014. According
to the IME physician, Claimant described his daily pain ranging from 2 to 4 on a
scale of 10, which was predominantly in the right leg but occasionally in the left.
A physical examination showed normal strength; however, his left extensor
hallucis longus, the muscle that enervates the big toe, was not working.                   In
addition, the examination showed some right-sided weakness of the peroneal and
extensor hallucis longus muscle, and reflexes were absent at both ankles but were
symmetric and present at both knees. He exhibited a negative straight leg raising
test. After a discectomy at the L4-5 level in June 2006, Claimant described
decreased leg and back pain. A repeat MRI performed in January 2007 showed
interval improvement at the central disc herniation at L3-4, interval resolution of
the disc herniation and extruded fragment at L4-5, and the L5-S1 level remained

       2
       According to the LMS, a picker is responsible for fulfilling customer orders by picking
merchandise that matches customer specifications.



                                              3
unchanged. Based upon his examination, the history provided by Claimant, and a
review of medical records, the IME physician believed Claimant could perform
light-duty work. He completed a physical capacities worksheet indicating that
Claimant could return to work with the following restrictions:         1-3 hours of
standing, sitting, sitting/standing, walking, and driving; occasional bending at the
waist, squatting at the knees, climbing stairs, reaching above the shoulder, kneeling
and using feet for foot controls; no climbing ladders or crawling; no restrictions on
upper extremities; and light lifting of 11-20 pounds.        He testified that it is
important for individuals with Claimant’s condition to be able to switch positions
every 1-3 hours and that based on his understanding of the physical requirements
of the seven jobs, in his medical opinion, Claimant could perform all seven of the
jobs listed in the LMS.
      Claimant testified in opposition to the modification petition. He testified
that he receives epidural steroid injections and takes three Percocets per day for
pain, which he described as constant. He also testified that he reviewed the seven
jobs suggested by the vocational expert with his treating physician, and neither he
nor his treating physician believe that he is capable of performing any of them.
Therefore, he did not apply for employment with any of the potential employers
listed in the LMS. Claimant also testified that he believes a light-duty position is
available with Employer because he previously worked such a position in 2006
after his surgery, albeit only for three days. He is not aware of any specific light-
duty position available with Employer after this time.
      Claimant also introduced the deposition testimony of his treating physician,
who testified as follows.    He testified that Claimant has paravertebral spasm
consistently, presents with a positive straight leg raising test, and has poor quad



                                         4
tone on the right lower extremity. According to the treating physician, poor quad
tone and dorsal flexion weakness are evidence of a chronic damaged irritated nerve
in the distribution of the right lower extremity. He diagnosed Claimant with L4-5
disc herniation, status post-surgery and chronic lumbar L5-S1 radiculopathy, all
related to the 2006 work injury. In his opinion, Claimant’s condition has remained
roughly unchanged since he first started treating him in 2010. He testified that
Claimant cannot sit or stand for any length of time but must shift positions
constantly. In his opinion, Claimant is not able to perform any full-time work and
should not lift more than 10 pounds. He also expressed concerns with Claimant
driving because of his medication, as well as getting in and out of a motor vehicle
on a continual basis. He agrees that Claimant could try some sedentary work if he
is able to change positions frequently. Although he thought the position at Great
Wolf Lodge was most helpful to Claimant, he did not believe that Claimant could
perform it or any of the jobs listed in the LMS.
       The WCJ found the vocational expert’s testimony credible and based upon
her testimony, that no work with Employer was available to Claimant. 3                       In
addition, the WCJ credited the IME physician’s testimony in its entirety and
rejected the testimony of Claimant’s treating physician where it differed.4 The
WCJ also found the IME physician’s explanation of the physical requirements of


       3
          The WCJ also admitted, over Claimant’s objection, a copy of a collective bargaining
agreement between Employer and Claimant’s previous union, which Employer introduced in
rebuttal of Claimant’s argument that it must offer him a light-duty position before seeking
modification of his benefits. The WCJ found it substantiated the testimony of the vocational
expert that Employer had no light-duty positions to offer Claimant.
        4
          The WCJ offered an “alternative finding,” in which he gave the treating physician “the
benefit of the doubt” and found that Claimant could lift between 5 and 10 pounds. (WCJ
Decision, Finding of Fact (FOF) ¶ 9.)



                                               5
the Great Wolf Lodge job more credible than the treating physician’s, and found
Claimant could perform that position, which had an earning capacity of $320 per
week.      Based upon this finding, the WCJ modified Claimant’s benefits
accordingly.
         The Board affirmed the WCJ, holding that Employer met its burden of
proving that Claimant’s earning power had increased by the credited testimonies of
the vocational expert and IME physician, and that such credibility determinations
are within the discretion of the WCJ. Though Claimant additionally argued to the
Board that Employer failed to prove it had no available, suitable jobs within itself
for Claimant, the Board ruled that the burden to prove that no such job existed
never shifted to the Employer. The Board relied on this Court’s decision in
Rosenberg v. Workers’ Compensation Appeal Board (Pike County), 942 A.2d 245
(Pa. Cmwlth. 2008), for the proposition that “[i]t was Claimant’s burden to raise
the issue of a specific job availability within [Employer], with evidence, before the
burden shifted to [Employer] to prove that such a job was offered to Claimant.”
(Board Op. at 7.) The Board found that although Claimant provided evidence that
a light-duty position existed with Employer in 2006, a fact known to Claimant
because he had worked in that position for three days, such evidence failed to shift
the burden to Employer because “the regulations specifically outline the time
period in which a claimant’s evidence must show [Employer] had available jobs,
which starts with the filing of the Notice of Ability to Return to Work and ends
with the filing of the Modification Petition.” (Id. (citing 34 Pa. Code § 123.301
(b)).)    Therefore, the Board affirmed the WCJ’s Decision and Order, finding
Claimant failed to raise the issue of specific job availability, with evidence, such
that the burden never shifted to Employer.



                                         6
       On appeal to this Court,5 Claimant again argues that (1) Employer failed to
prove that it met its statutory burden to show that it had no in-house position to
offer Claimant before relying on the LMS, and (2) Employer failed to present
sufficient medical evidence necessary to support its petition to modify Claimant’s
benefits. We address those issues in turn.


I.     In-House Position
       We first address Claimant’s argument that Employer’s modification petition
should be denied because Employer failed to prove that it did not have an available
job within itself suitable for Claimant. Claimant contends that Employer has a
statutory burden to prove the nonexistence of an available suitable job for Claimant
before it can rely on an earning power assessment or labor market survey.
Claimant argues that the Board’s view, requiring Claimant to first present evidence
of a specific job availability with Employer between the time when the Notice of
Ability to Return to Work was issued and the filing of Employer’s modification
petition in order to trigger Employer’s burden to prove it had no suitable in-house
positions available, is too severe and contravenes the aims and goals of the
Workers’ Compensation (WC) Act.6               Claimant argues that because Employer
employs thousands of people in varying capacities, ranging from custodial to office
work, “it is difficult to fathom that no light-duty, sedentary or modified duty work
whatsoever was available for [Claimant,]” and that “[a]lternative work is probably


       5
          This Court’s scope of review in workers’ compensation appeals is limited to
determining whether necessary findings of fact are supported by substantial evidence, whether an
error of law was committed, or whether constitutional rights were violated. Elberson v.
Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 936 A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007).
       6
         Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.



                                               7
available every day.” (Claimant’s Br. at 16.) Furthermore, Claimant interprets
Rosenberg for the proposition that “[w]here the claimant presents some evidence
suggesting the existence of a possibly available and viable job with the employer,
the employer then has the rebuttal burden of proving the absence of any
appropriate position before the employer can rely on an earning power
assessment.” (Id. at 13.) According to Claimant, the fact that he worked a light-
duty position with Employer in 2006 for three days is sufficient evidence to shift
the burden to Employer to show no such position was available.
      Pursuant to Section 306(b)(2) of the Act,7 if a claimant receiving WC
benefits is able to 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).
Regulations dictate the time period in which an employer bears this obligation to
offer a suitable job to the employee: “The employer’s obligation to offer a specific
job vacancy to the employee commences when the insurer provides the notice [of
ability to return to work] . . . and shall continue for 30 days or until the filing of a
Petition for Modification or Suspension, whichever is longer.”            34 Pa. Code
§ 123.301(b).8 The WC Act and applicable regulations are silent, however, 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 claimant, or with
the claimant to prove employer does have such a job.



      7
         Added by Section 4 of the Act of June 24, 1996, P.L. 350.
      8
         Here, the relevant time period would be between July 1, 2014, when the Notice of
Ability to Return to Work was issued, and November 26, 2014, when Employer filed its
modification petition.



                                           8
      This Court first addressed this issue in Rosenberg. There, the claimant
provided uncontradicted evidence that a specific job within her capabilities existed
with the employer after claimant received a notice of ability to return to work and
before the employer filed its modification petition. We noted that the WC Act was
silent as to the presentation of evidence, but 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). The
Court further noted that “[t]he time period in question starts with the notice of
ability to return to work and continues until the filing of a petition for
modification.”   Id. (citing 34 Pa. Code § 123.301(b)).      Because the claimant
provided evidence that a suitable job with her employer was available within this
time frame, 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


                                         9
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 evidence of job vacancies was presented by 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 he visited the
website after the modification petition was filed. Id.
      Unlike Rosenberg or Reichert, Claimant, here, did not present 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.          The only evidence
Claimant presented that supports the existence of such a position was his testimony
that he worked a light-duty position with Employer in 2006.         However, this
substantially predates the relevant time period by approximately eight years. Due
to the frequency with which large employers re-organize and implement new
policies, the fact that a suitable job for Claimant existed with Employer in 2006
does not reasonably suggest that a specific job within Claimant’s capabilities was
available between July 1, 2014, when the Notice of Ability to Return to Work was
issued, and November 26, 2014, when Employer filed its modification petition.
Additionally, Claimant’s assertion that a job is “probably available” because of
Employer’s size, without any attempt to provide evidence of a specific opening,
does not satisfy Claimant’s initial burden. Therefore, the Board was correct in
holding that the burden never shifted to Employer to show that it had no in-house
position within Claimant’s capabilities.

II.   Sufficiency of Evidence
      We next address Claimant’s argument that the Board erred in affirming the
WCJ’s grant of Employer’s modification petition because Employer failed to


                                           10
present sufficient evidence.   Section 306(b)(2) of the WC Act allows for
modification of benefits based on a claimant’s earning power. 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 which includes job
listings with agencies of the department, private job placement agencies and
advertisements in the usual employment area.” Id.
      Here, Employer provided the testimony of a vocational expert who
concluded, based on her in-person meeting with Claimant, personal visits to
various job sites, and an IME, that Claimant had an earning power of between
$320 and $800 per week. The WCJ specifically credited both the vocational
expert’s testimony and the IME physician’s testimony. Although Claimant states
in his brief that he does not ask this Court to re-weigh the WCJ’s credibility
determinations, he nevertheless argues that the LMS was flawed because it was
based on an IME, which conflicts with the testimony of Claimant and his treating
physician regarding Claimant’s capabilities. Essentially, Claimant asks us to re-
weigh the IME physician’s credibility to determine whether the LMS, which relies
on the IME, should be considered valid. However, it is well-established that
credibility determinations in workers’ compensation matters are within the
discretion of the WCJ, not the Board or this Court. Vols v. Workmen’s Comp.
Appeal Bd. (Alperin, Inc.), 637 A.2d 711, 714 (Pa. Cmwlth. 1994). Furthermore,
the testimony of a single medical expert can be a reasonable basis upon which a
WCJ may arrive at a finding of fact despite conflicting medical evidence.
Robertshaw Controls Co. v. Workers’ Comp. Appeal Bd. (Raffensperger), 710
A.2d 1232, 1234 (Pa. Cmwlth. 1998).




                                       11
       Here, the WCJ credited the testimony of the vocational expert and IME
physician and rejected the testimony of Claimant’s treating physician. Because
this testimony provides substantial evidence to support the conclusion that
Claimant is capable of earning $320 per week, the Board properly affirmed the
WCJ’s Decision based on these credibility determinations despite the presence of
conflicting testimony provided by Claimant and his treating physician.9
       Accordingly, we affirm.




                                            _____________________________________
                                            RENÉE COHN JUBELIRER, Judge




       9
         To the extent Claimant argues the LMS is defective because the vocational expert did
not seek input from Claimant’s treating physician, we note that Employer did so at its own risk.
Had the WCJ found the treating physician’s testimony more credible than the IME physician’s
testimony, the LMS that was based upon the IME physician’s restrictions would have lacked a
foundation, rendering it meaningless.



                                              12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gary Koehler,                          :
                       Petitioner      :
                                       :
                 v.                    :   No. 3 C.D. 2017
                                       :
Workers’ Compensation Appeal           :
Board (SEPTA),                         :
                      Respondent       :


                                    ORDER


     NOW, August 28, 2017, the Order of the Workers’ Compensation Appeal
Board, dated December 6, 2016, granting Employer Southeastern Pennsylvania
Transportation Authority’s Modification Petition, is AFFIRMED.




                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge
