C. Sadler v. Philadelphia Coca-Cola (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carl Sadler, :
Petitioner :
:
v. : No. 1294 C.D. 2020
: Submitted: June 4, 2021
Philadelphia Coca-Cola (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: January 7, 2022
Carl Sadler (Claimant) petitions for review of the December 1, 2020 Order of
the Workers’ Compensation Appeal Board (Board) affirming the May 31, 2019
Decision of a Workers’ Compensation Judge (WCJ) that granted the Petitions for
Modification (Modification Petition) and Termination (Termination Petition) filed
by Philadelphia Coca-Cola (Employer) and denied and dismissed the Petitions for
Modification, Penalty, Reinstatement, and Review Benefit Offset filed by Claimant.
As a result, the WCJ modified Claimant’s benefits to reflect that Claimant had an
earning capacity of $520.00 per week and partially terminated Claimant’s workers’
compensation (WC) benefits for work-related injuries from which the WCJ found
Claimant had fully recovered. As for Claimant’s Petitions, the WCJ concluded that
Employer had not improperly taken or handled an offset of Claimant’s WC benefits
for his receipt of Social Security old age benefits. On appeal, Claimant argues:1
1
We have rearranged and consolidated Claimant’s arguments for ease of discussion.
(1) Section 204(a) of the Workers’ Compensation Act2 (Act), 77 P.S. § 71(a), which
sets forth an offset for the receipt of Social Security old age benefits, is
unconstitutional; (2) the WCJ erred in relying on the labor market survey (LMS),
earning assessment, and deposition testimony of Employer’s vocational expert,
Michael Smychynsky; (3) the WCJ erred in not considering Claimant’s status as a
Class II felon when determining whether a position was appropriate and/or open and
available to Claimant; and (4) the WCJ’s Decision did not meet the reasoned
decision requirements of Section 422(a) of the Act, 77 P.S. § 834.
I. BACKGROUND
A. Current Petitions
On July 2, 2012, after working for Employer for just four weeks, Claimant
sustained the following work-related injuries, which Employer accepted: “a right
pinky finger amputation,” “distal radioulnar joint subluxation, ECU tendinopathy,
pisotriquetral joint arthritis resulting in pisiform excision, right wrist DRUJ
resection” (upper extremity injuries), and “right transverse process fractures of L2-
3 and L4, contusion to the right gluteal region/right hip, fracture of the right 6th rib
and right leg radiculitis, . . . and low back sprain” (non-upper extremity injuries).
(WCJ’s Decision, Findings of Fact (FOF) ¶¶ 1-2.) Claimant received “temporary
disability benefits in the amount of $652.00 based on an average weekly wage
[(AWW)] of $978.00.”3 (Id. ¶ 1.)
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 71(a).
3
Claimant would later file a Petition to Review challenging the calculation of the AWW,
and Employer would later file a Petition to Suspend Claimant’s WC benefits for a period to account
for the 525 days during which Employer paid Claimant while he was incarcerated prior to trial due
to his inability to post bail, was convicted, and sentenced to time served. In Sadler v. Workers’
Compensation Appeal Board (Philadelphia Coca-Cola), 210 A.3d 372, 379, 383-84 (Pa. Cmwlth.
(Footnote continued on next page…)
2
Employer filed the Termination Petition on November 9, 2016, asserting that
Claimant was fully recovered from the non-upper extremity injuries based on a
September 15, 2016 Independent Medical Examination (IME) by Armando Mendez,
M.D. Employer later filed the Modification Petition on April 27, 2017, averring that
based on Smychynsky’s vocational interview and earning power assessment
“Claimant had a weekly earning capacity of $520.00 as of March 31, 2017.” (Id.
¶ 4.) Claimant filed an Answer to the Modification Petition, denying all of the
material allegations, maintaining that Claimant remained totally disabled, and
asserting that the results of Smychynsky’s earning capacity assessment could not be
considered because Smychynsky and Employer’s carrier did not comply with the
Bureau of Workers’ Compensation Regulations (Regulations). (Id. ¶ 4; Certified
Record (C.R.) Item 6.)
On October 30, 2017, Employer’s third-party administrator (TPA) issued an
Amended Notice of Workers’ Compensation Benefit Offset (Amended Notice of
Offset)4 advising that an “offset would be taken due to Claimant’s receipt of Social
Security old age benefits,” which would include a period of recoupment to recover
an overpayment of WC benefits. (Id. ¶ 9.) Claimant filed various petitions,
including the Petition to Review Benefit Offset (Review Petition), asserting that the
offset violates the Act, Employer failed to exercise due diligence when it did not
2019) (Sadler I), this Court reversed the WCJ’s decision granting the suspension petition and
remanded for consideration of Claimant’s probable overtime. The Supreme Court affirmed in
Sadler v. Workers’ Compensation Appeal Board (Philadelphia Coca-Cola Co.), 244 A.3d 1208(Pa. 2021) (Sadler II). While Employer was unsuccessful in obtaining the suspension of
Claimant’s WC benefits, litigation on Claimant’s challenge to the AWW is ongoing.
4
The TPA issued a prior notice of offset, to which Claimant filed multiple petitions in
response. (FOF ¶¶ 5, 7.) Employer later acknowledged that the offset amounts were incorrect,
which led to the issuance of the Amended Notice of Offset. (Id. ¶ 5.)
3
“send Claimant LIBC Employment Verification forms” periodically, and Section
204(a) of the Act is unconstitutional. (Id. ¶ 10.) Employer denied the allegations.
B. Proceedings Before the WCJ
All of the Petitions were assigned to the WCJ, who held hearings at which
Employer and Claimant presented the following evidence.
1. Employer’s Evidence
Dr. Mendez, who is a board-certified orthopedic spine surgeon, performed
IMEs on Claimant on May 22, 2015, and September 15, 2016, and testified by
deposition as follows.5 Dr. Mendez examined Claimant’s non-upper extremity
injuries, reviewed Claimant’s medical records and diagnostic records, and observed
no objective evidence to support Claimant’s ongoing complaints. Thus, Dr. Mendez
opined that Claimant’s non-upper extremity injuries had resolved and required no
further treatment, and Claimant could return to work at the same capacity as before
the relevant work injuries. (Id. ¶ 13(g), (j).) In addition, “Dr. Mendez would not
impose any restrictions on Claimant’s ability to return to work with regard to [those]
diagnoses[.]” (Id. ¶ 13(j).) Accordingly, Dr. Mendez completed an Affidavit of
Recovery for the non-upper extremity injuries. (Id. ¶ 13(k).) Dr. Mendez noted, on
Claimant’s physical capacities form, that there could be restrictions placed on
Claimant by other physicians for the upper extremity injuries. In addition, Dr.
Mendez observed that Claimant had a slightly antalgic gait at the September IME,
which Dr. Mendez attributed to Claimant’s “left knee not fully extending” and that
Claimant reported having “unrelated left knee arthroplasty.” (Id. ¶ 13(i).)
Dr. Mendez’s deposition testimony is found at Item 34 of the Certified Record and is
5
summarized in Finding of Fact 13.
4
Stephanie Sweet, M.D., “a board-certified orthopedic surgeon with an added
qualification in surgery of the hand,” testified by deposition in support of
Employer’s Modification Petition as follows.6 (Id. ¶ 14(a).) Dr. Sweet performed
two IMEs on Claimant. The June 23, 2015 IME revealed recent right-hand surgery
related to the work injury from which Claimant was still recovering. Dr. Sweet
opined that therapy for the hand was proper at that time, Claimant was continuing to
improve, and light-duty work was appropriate. (Id. ¶ 14(e).) At the August 2, 2016
IME, Claimant advised Dr. Sweet that the surgery had helped, Claimant had been
discharged from the care of the hand surgeon, and Claimant could use the right hand
to do things so long as it was not overused. Based upon the physical examinations
and a review of updated medical records, Dr. Sweet concluded that Claimant had
reached maximum medical improvement for the upper-extremity injuries and
“permanent light-duty status was appropriate.” (Id. ¶ 14(h).) Dr. Sweet described
Claimant’s physical capacities as being “up to 20 pounds of either lifting or carrying
on an occasional basis and 10 pounds regularly” and being able to “push and pull
about 10 pounds with anything that is repetitive of force with the right hand.” (Id.)
Dr. Sweet also testified about reviewing the job analyses provided by Smychynsky,
as set forth below.
Smychynsky, “a vocational rehabilitative consultant[,] . . . forensic vocational
economist,” and certified rehabilitation counselor with 28 years of experience,
testified by deposition.7 (Id. ¶ 15(a).) Prior to Smychynsky testifying, Claimant
objected to the results of that earning power assessment being considered based on
6
Dr. Sweet’s deposition testimony is found at Item 35 of the Certified Record and is
summarized in Finding of Fact 14.
7
Smychynsky’s deposition testimony is found at Items 32 and 33 of the Certified Record
and is summarized in Finding of Fact 15.
5
various alleged violations of the Regulations. (Smychynsky’s Deposition (Dep.) at
5.) Smychynsky then testified as follows. There is no financial interest between
Smychynsky and Smychynsky’s company and Employer or the TPA. Smychynsky
“provided to Claimant a disclosure form indicating the purpose of the evaluation and
. . . notify[ing] Claimant of the lack of counselor-client relationship, as required by
the . . . Act.” (Id. ¶ 15(d).) In assessing whether work with Claimant’s medical
releases and vocational abilities was available, Smychynsky reviewed the medical
reports of Dr. Mendez and Dr. Sweet and the Notices of Ability to Return to Work
that Employer subsequently sent. In addition, Smychynsky interviewed Claimant
and obtained information about Claimant’s medical condition and treatment,
education, military service, work history, computer skills, driving ability, and
hobbies, including those which required use of the injured right hand. Following the
interview, Smychynsky completed a transferable skills analysis and determined that
Claimant’s vocational alternatives “were cashier jobs and jobs like that of a security
guard, a traffic control worker[,] and some assembly positions.” (Id. ¶ 15(i).)
Smychynsky checked with Employer to see if there were any positions within
Claimant’s restrictions and abilities available and there were none. Smychynsky
performed the LMS to find appropriate positions, identified 23 specific positions,
and performed specific job analyses for 5 of those positions to determine if they were
consistent with Claimant’s work releases.
These five positions were as follows: (1) a full-time, light-duty position as “a
security gate attendant with G4S Security Services” paying $13.00 per hour, which
allowed for standing, sitting, walking, and driving, change of position as needed, and
minimal use of upper extremities; (2) a full-time, light-duty flagger position with
Flagger Force paying $11.50 per hour, which required lifting of up to 25 pounds and
6
walking and standing during the workday; (3) a full-time, light-duty position as a
production associate with US Vision/Recaf Optical (US Vision) paying between
$12.00 and $14.00 per hour, which had minimal lifting and was mostly sitting, and
could be modified to reduce the lifting requirements from 25 pounds to 20 pounds;
(4) a full-time or part-time, sedentary position as an offsite cashier and van
dispatcher for Smart Park paying $10.00 per hour; and (5) a full-time or part-time,
sedentary to light-duty position as a gate attendant with St. Joseph’s University
paying $12.00 per hour that required some standing and walking and allowed for the
employee to change positions, but also required a security clearance, which,
Smychynsky acknowledged, could affect Claimant’s ability to obtain this position
due to Claimant’s post-work-injury conviction of a Class II felony. (FOF ¶ 15(k),
(o), (bb), (cc); Smychynsky’s Dep. Part 1 at 39-40, 42-43, 45-46, 48, 51.)
Smychynsky sent job analysis forms for the five positions to Dr. Mendez and Dr.
Sweet. Smychynsky received the forms back from Dr. Mendez, of which the WCJ
found that Dr. Mendez had approved the GS4 Security Services, St. Joseph’s
University, and Smart Park positions, but approved the US Vision position only if
modified to reduce lifting from 25 pounds to 20 pounds. (FOF ¶ 15(k), (o), (bb),
(cc); Smychynsky’s Dep. Part 1 at 39-40, 42-43, 45-46, 48, 51; Smychynsky’s Dep.
Part 2, Ex. Smychynsky-5.) Dr. Sweet testified that the positions were within
Claimant’s restrictions, except that the positions with US Vision and Flagger Force
required modification to reduce the lifting requirement from 25 pounds to 20 pounds.
(FOF ¶ 14(i)-(m).)
Smychynsky observed the positions, directly communicated with the five
employers, and confirmed the continued availability of the positions between March
28, 2017, and April 12, 2017. In Smychynsky’s opinion, these positions were
7
“vocationally appropriate given Claimant’s education and vocational history” and
were open and available at the time of the earning capacity evaluation. (Id.
¶ 15(hh).) Based on the identified positions, “Smychynsky opined that Claimant
ha[d] an entry-level earning capacity of up to $520.00 per week” using the “highest
paying position for 40 hours per week.” (Id. ¶ 15(ii).) Smychynsky acknowledged,
however, that if Claimant’s conviction was considered, “the security positions would
likely not be appropriate for Claimant.” (Id. ¶ 15(jj).)
2. Claimant’s Evidence
Claimant offered the deposition testimony of Jed Shapiro, M.D., a board-
certified anesthesiologist with whom Claimant treats for pain management, who
testified as follows.8 Dr. Shapiro provides outpatient chronic pain management and
approximately half of Dr. Shapiro’s practice is the treatment of lumbar spine injuries.
Dr. Shapiro began treating Claimant on August 20, 2015, has continued to do so
through August 2017, and “considers himself Claimant’s primary treating physician
for Claimant’s lumbar spine injury of July 2, 2012.” (Id. ¶ 16(b).) At the initial
evaluation, Claimant complained of neck and low back pain, as well as pain from
the low back into the right leg and ankle that Dr. Shapiro opined were consistent
with injuries to the L4-5 nerve roots. The physical examination results indicated
nerve root irritation and problems with the lower lumbar spine. Dr. Shapiro
evaluated Claimant multiple times between August 2015 and August 2017, with
Claimant continuing to complain of low back pain and similar results during the
physical examinations. Based on the examinations and review of Claimant’s
medical records and diagnostic testing of the lumbar and cervical spine, Dr. Shapiro
Dr. Shapiro’s deposition testimony is found at Item 27 of the Certified Record and is
8
summarized in Finding of Fact 16.
8
opined that Claimant was not fully recovered from the non-upper extremity injuries,
continued treatment was needed for those injuries, and Claimant could not return to
the time-of-injury position with Employer. Dr. Shapiro released Claimant “to work
with restrictions to avoid prolonged sitting and standing, frequent bending, pushing,
pulling[,] and to refrain from . . . lifting greater than 10 pounds.” (Id. ¶ 16(m).) Of
the five positions, Dr. Shapiro would only approve the Smart Park cashier position,
provided that Claimant worked two to four hours per day a few days a week to start
and then gradually increased the hours as Claimant could tolerate.
Claimant also offered the deposition testimony of John Dieckman, “the
assistant director of vocational services at Proto-Worx, a disability management
company,” and certified rehabilitation counselor and disability management
specialist, who testified as follows.9 (Id. ¶ 17(a).) Dieckman reviewed
Smychynsky’s evaluation and the identified positions approximately eight or nine
months after that LMS. Dieckman interviewed Claimant on October 31, 2017,
discussing Claimant’s background, felony conviction, work history, ability to drive,
and limitations due to the multiple surgeries on Claimant’s right hand. Citing Dr.
Shapiro’s reports and restrictions and Claimant’s interview, Dieckman believed
Claimant had a limited ability to work and “need[ed] a position where [Claimant
could] sit and stand and change positions” and “could probably lift 10 pounds but
not more than that.” (Id. ¶ 17(e).) Dieckman reviewed the positions identified by
Smychynsky, contacted the employers’ representatives (some of which were
unavailable or had left), and concluded that the positions were inappropriate,
inconsistent with the restrictions of Dr. Shapiro and Dr. Mendez, or would be
unavailable because of Claimant’s conviction. Dieckman additionally questioned
9
Dieckman’s deposition testimony is found at Item 28 of the Certified Record and is
summarized in Finding of Fact 17.
9
whether some of these positions’ physical requirements were as Smychynsky
described, would have been available at the pay levels asserted, and/or were
permanent or guaranteed positions.
Claimant testified before the WCJ on February 15, 2018, as follows.10
Claimant described the July 2, 2012 work incident, the injuries sustained, the related
ongoing medical treatment, and his ongoing problems with the low back, right hip,
right leg, and right foot and ankle, as well as the right wrist and hand. Claimant
acknowledged having received Dr. Mendez’s and Dr. Sweet’s return to work
releases and the Notices of Ability to Return to Work. Claimant discussed returning
to work with Dr. Shapiro, who, according to Claimant, placed a 10-pound carrying
restriction and limited Claimant’s use of the right hand. Upon receiving
Smychynsky’s LMS, even though he did not feel the jobs were consistent with Dr.
Shapiro’s restrictions, Claimant applied and received some responses, but no job
offers. (Id. ¶ 18(h); Ex. C-4.) Claimant also applied for other full-time positions at
that time, despite being uncertain that they could be performed without
accommodation by the employers and received no job offers from these attempts.
Claimant acknowledged he was incarcerated after the work injury and pleaded guilty
to a Class II felony. (Id. ¶ 18(k).) Claimant advised the potential employers of this
conviction, which imposes “restrictions on how close he can be to certain public
facilities and he is not permitted to be around certain types of people.” (Id.)
Claimant is receiving Social Security old age benefits, which have reduced his WC
benefits. Claimant also submitted paystubs showing Employer’s withholding for
Social Security and Medicare. (Id. ¶ 19; Ex. C-3.)
10
The February 15, 2018 hearing transcript is found at Item 24 of the Certified Record,
and Claimant’s testimony is summarized in Finding of Fact 18.
10
C. The WCJ’s Decision
In addition to the above findings of fact, the WCJ made the following
credibility determinations. The WCJ found Dr. Mendez’s testimony credible and
persuasive and supported the finding that “Claimant is capable of gainful
employment and is fully recovered from [the] non-upper[]extremity . . . injuries,”
citing Dr. Mendez’s credentials, comprehensive medical evaluations, the lack of
objective findings in Claimant’s physical examination making Claimant’s
complaints of pain inconsistent, and the lack of support in the objective testing.
(FOF ¶ 21.) The WCJ also found Dr. Sweet’s testimony credible and persuasive and
supported the finding that “Claimant is capable of gainful employment within [Dr.
Sweet’s] restrictions concerning Claimant’s right upper extremity injury,” citing Dr.
Sweet’s credentials, comprehensive examinations, and the fact that those opinions
were unrebutted. (Id. ¶ 22.) In contrast, the WCJ found Dr. Shapiro’s testimony
less credible than that offered by Dr. Mendez and Dr. Sweet, citing the facts that Dr.
Shapiro does not treat and could offer no opinion on Claimant’s upper extremity
injuries, is a pain management physician who relies on his patients’ subjective
complaints of pain, provided work restrictions that changed when presented with
positions that met the original restrictions, and the additional restrictions were not
mentioned even by Claimant as having been imposed. (Id. ¶ 24.)
As for the vocational experts, the WCJ found Smychynsky’s testimony
“credible in its entirety,” noting Smychynsky’s comprehensive interview of
Claimant, review of the medical records, personal observation of the identified
positions, and concession when certain of the positions identified were not consistent
with Claimant’s medical restrictions. (Id. ¶ 23.) Thus, the WCJ accepted
Smychynsky’s opinion “that Claimant is capable of earning $520.00 per week.”
11
(Id.) The WCJ did not find Dieckman’s testimony credible or persuasive, stating
that although “Dieckman criticized [] Smychynsky’s evaluation,” Dieckman “did
not contact the identified employers until eight months after the [LMS] was
performed,” relied on Dr. Shapiro’s two- to four-hour per day restriction, “which is
not realistic for most employers,” and on Dr. Mendez’s restrictions but “Dr. Mendez
provided no restrictions on Claimant’s ability to return to work.” (Id. ¶ 25.) Finally,
the WCJ noted that Dieckman focused on Claimant’s felony conviction when that
conviction occurred after the work injury and that “Employer should not be hindered
by Claimant’s subsequent behavior and conviction.” (Id.)
The WCJ found Claimant’s testimony “not credible or persuasive on the
relevant issues.” (Id. ¶ 26.) According to the WCJ, notwithstanding Claimant’s
release to work by Dr. Shapiro, he “only applied for jobs during the month
immediately following [the] issuance of the [LMS]” and cited the “conviction as to
why many of the positions are not available.” (Id.) The WCJ explained “[i]t is not
Employer [that] should be hindered by that conviction which occurred after the work
injury,” “[t]he consequences of this felony belong to Claimant.” (Id.)
Based on these credibility determinations, the WCJ found, in pertinent part:
d) As of March 31, 2017, there were numerous employment positions
available that fit within Claimant’s physical and vocational
capabilities as outlined by . . . Smychynsky.
e) Claimant’s earning power, based on the positions identified by . . .
Smychynsky, is $520.00 per week.
f) Claimant has fully recovered from [the non-upper extremity] . . .
injuries . . . .
g) Employer has been appropriately taking a credit for Claimant’s
receipt of Social Security old age benefits.
12
h) There is no bar to Employer’s right to a credit for Claimant’s receipt
of Social Security old age benefits due to Claimant only working for
Employer for four weeks.
(Id. ¶ 27(d)-(h).) For these reasons, the WCJ concluded that Employer had met its
burdens of proof on the Modification and Termination Petitions and Claimant did
not establish that the offset for Claimant’s receipt of Social Security old age benefits
was inappropriate or handled improperly. (WCJ’s Decision, Conclusions of Law
(COL) ¶¶ 2-4.) Thus, the WCJ granted the Modification and Termination Petitions
and denied Claimant’s Review Petition.11
D. The Board’s Opinion
Claimant appealed to the Board, asserting many of the same arguments as he
makes before this Court. The Board rejected Claimant’s argument that “Section
204(a) violates the [e]qual [p]rotection [c]lause of the Pennsylvania Constitution,12
explaining that it presumed the Act’s provisions are constitutional and that this Court
previously held that Section 204(a)’s Social Security old age benefits offset did not
violate equal protection. (Board Opinion (Op.) at 5 (citing Caputo v. Workers’
Comp. Appeal Bd. (Commonwealth of Pa.), 34 A.3d 908, 919 (Pa. Cmwlth. 2012)).)
The Board also held that the WCJ did not err in finding the conviction not
relevant because “[l]imitations from non-job-related injuries are not a factor to be
considered” to establish earning power under Section 306(b) of the Act, 77 P.S.
§ 512. (Id. at 18 (citing Markle v. Workmen’s Comp. Appeal Bd. (Caterpillar
11
The WCJ also denied Claimant’s other Petitions, which Claimant does not challenge.
12
The Fourteenth Amendment to the United States Constitution provides, in pertinent part,
that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
U.S. CONST. amend. XIV. Article I, section 1 of the Pennsylvania Constitution states that “[a]ll
men are born equally free and independent, and have certain inherent and indefeasible rights,
among which are those of enjoying and defending life and liberty, of acquiring, possessing and
protecting property and reputation, and of pursuing their own happiness.” PA. CONST. art. I, § 1.
13
Tractor Co.), 661 A.2d 1355, 1358 (Pa. 1995)).) The Board also rejected Claimant’s
argument that Smychynsky’s testimony and earning power assessment should not
have been considered due to a violation of the Regulations, finding Claimant did not
preserve this issue by submitting it in a separate writing to the WCJ as required by
Section 131.66(b) of the Special Rules of Administrative Practice and Procedure
Before WCJs (WCJ Rules), 34 Pa. Code § 131.66(b), as Claimant’s counsel had
agreed to do during the deposition. (Id. at 19-20 (citing Degraw v. Workers’ Comp.
Appeal Bd. (Redner’s Warehouse Mkts., Inc.), 926 A.2d 997, 1001 (Pa. Cmwlth.
2007)).)13
Finally, the Board rejected Claimant’s argument that the WCJ’s Decision was
not reasoned because the Decision summarized the evidence, made credibility
determinations that were explained and did not leave the WCJ’s reasoning up to the
imagination, made the necessary findings and conclusions to support the ultimate
decision, and viewing the credibility determinations as a whole, such determinations
were not arbitrary and capricious. The Board found no error in rejecting Dieckman’s
testimony because it was based on the later-conducted LMS, and not made during
the time period relevant to the Modification Petition. The Board also disagreed with
Claimant’s argument that there was inconsistency in Dr. Mendez’s testimony that
Claimant was fully recovered from the non-upper extremity injuries and the on-the-
job analyses forms, which noted that several jobs did not meet Claimant’s physical
restrictions. The Board held that Dr. Mendez clearly opined that Claimant was fully
recovered from the non-upper extremity injuries and could return to work with no
restrictions related thereto but also recognized that “[s]ome restrictions may be
placed by other physicians for upper extremity injuries,” which is what occurred
13
Nonetheless, the Board stated that it would not consider this to be an error. (Board Op.
at 21 n.9.)
14
here. (Id. at 24 (quoting Ex. D-Mendez-3).) The Board stated that Dr. Mendez did
not testify about any of the positions and that, other than the notes on the job
analyses, all other evidence supported full recovery. The Board disagreed that the
WCJ had to explain how these notes fit into the credibility determinations because
the WCJ is not required to give a line-by-line analysis of each piece of evidence and
statement made. Based on the findings made and the explanations given, the Board
held that the WCJ’s Decision provided for effective appellate review and, therefore,
satisfied the requirements of Section 422(a) of the Act.
Accordingly, the Board affirmed the WCJ’s Decision and Order. Claimant
now petitions this Court for review. 14
II. DISCUSSION
A. Whether Section 204(a) of the Act is Unconstitutional.
1. Parties’ Arguments
Claimant argues that the WCJ erred in denying the Review Petition because
Section 204(a)’s automatic 50% offset for the receipt of old age benefits violates the
Equal Protection Clauses of the United States and Pennsylvania Constitutions
because it does not pass the rational relationship test. According to Claimant,
Section 204(a) creates three classifications of injured workers, those who receive:
(1) old age benefits, (2) severance benefits, and (3) pension benefits. Unlike
severance and pension benefits, whose offset is based on the benefits or
contributions made by the employer directly liable for the payment of WC benefits,
Claimant argues that the offset for injured workers who receive Social Security old
14
This Court’s scope of review “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).
15
age benefits after the work injury is not bound by how much the employer funds
those benefits. Claimant argues the interest found to support the severance and
pension offset, duplicative benefits for the same loss of earnings, is not present
where, as here, the employee has only worked for an employer for a short time and
the short-term employer was not responsible for funding the bulk of the employee’s
old age benefits. Claimant argues that Caputo did not consider whether the
difference between the three types of offset violated equal protection. Claimant
further asserts the amount an employer funds an employee’s Social Security old age
benefits is readily discernable from an employee’s pay stubs and providing an offset
equal to that amount provides the desired cost containment result without being
unduly burdensome on the injured, short-term worker.
Employer responds that there is no equal protection violation because Section
204(a) does not create a classification for an unequal distribution of benefits or
imposition of burden, and, without a classification, there can be no equal protection
violation. McCusker v. Workmen’s Comp. Appeal Bd. (Rushton Mining Co.), 639
A.2d 776, 778 (Pa. 1994). Employer notes that all three benefit offset provisions
have been found not to violate the equal protection clause per Kramer v. Workers’
Compensation Appeal Board (Rite Aid Corp.), 883 A.2d 518 (Pa. 2005) (severance),
Caputo, 34 A.3d at 919 (old age benefits), and Mosley v. Workers’ Compensation
Appeal Board (City of Pittsburgh), 937 A.2d 607 (Pa. Cmwlth. 2007) (pension).
Employer argues that, assuming arguendo that there is a classification, Claimant’s
challenge still fails because there is a legitimate state interest met in this case – cost
containment for employers, and the classification, the 50% offset, is reasonably
related to the articulated state interest, as the Court held in Caputo. According to
Employer, Section 204(a) was “[c]arefully crafted, [so that] each offset entitle[s] the
16
employer to decrease its [WC] liability based on other payments that the injured
worker would receive based on non-injury considerations,” and “the Legislature
chose a 50% offset for the [S]ocial [S]ecurity ‘old age’ benefits as a fair
approximation of an employer’s contribution as noted [in Caputo].” (Employer’s
Br. at 18.) Employer asserts that severance and pension benefit offsets are, “on the
other hand, . . . calculated based upon the occasioned employment benefits paid to
the employer directly liable for payment of compensation” and “[i]t would be unfair
for an injured worker to go on [WC] a short time before he/she retires and collects
more on pension, [WC,] and Social Security with absolutely no intentions of
returning to work.” (Id. at 18-19.)
2. Analysis
Section 204(a) states, in relevant part:
Fifty per centum of the benefits commonly characterized as “old age”
benefits under the Social Security Act (49 Stat. 620, 42 U.S.C. §[§]
301[-1397mm],) shall also be credited against the amount of the
payments made under sections 108 and 306,[15] except for benefits
payable under section 306(c): Provided, however, That the Social
Security offset shall not apply if old age Social Security benefits were
received prior to the compensable injury. The severance benefits paid
by the employer directly liable for the payment of compensation and
the benefits from a pension plan to the extent funded by the employer
directly liable for the payment of compensation which are received by
an employe shall also be credited against the amount of the award made
under sections 108 and 306, except for benefits payable under section
306(c).
77 P.S. § 71(a). Claimant asserts that employers that take an offset for Social
Security old age benefits may do so at 50% of those benefits but employers that take
15
77 P.S. §§ 271, 511-514. Section 108 was added by Section 1 of the Act of October 17,
1972, P.L. 930.
17
offsets for severance and pension benefits may only do so to the extent that the
employer funded those benefits, which treats claimants differently without a
legitimate governmental purpose to justify the difference.
In reviewing equal protection challenges, we apply the following principles:
The essence of the constitutional principle of equal protection under the
law is that like persons in like circumstances will be treated similarly.
However . . . [t]he right to equal protection under the law does not
absolutely prohibit the Commonwealth from classifying individuals for
the purpose of receiving different treatment and does not require equal
treatment of people having different needs. The prohibition against
treating people differently under the law does not preclude the
Commonwealth from resorting to legislative classifications
provided that those classifications are reasonable rather than
arbitrary and bear a relationship to the object of the legislation.
Kramer, 883 A.2d at 532 (alterations in original) (emphasis added). First, the court
considers whether the statute creates a classification for the unequal distribution of
benefits or burdens. Id.
In Caputo, we addressed an equal protection challenge to the Social Security
old age benefits offset based on its exclusion of Social Security old age benefits that
were received prior to the work injury from being offset. Reviewing this provision,
we determined that Section 204(a) created a legislative classification for the unequal
distribution of benefits - claimants to whom the offset applies or does not apply -
based on when they began receiving Social Security old age benefits. Caputo, 34
A.3d at 915. While Employer here asserts that no classification between claimants
is created, Section 204(a)’s language imposes different offset amounts for different
claimants based on the claimants’ receipt of a particular type of benefit. These
offsets affect the amount of WC benefits those claimants receive, just like the
classification between those claimants whose Social Security old age benefits began
18
prior to the work injury (no offset) and those whose began after the work injury
(offset). Thus, we conclude Section 204(a) creates a legislative classification for
unequal distribution of benefits or burdens. Therefore, we turn to the next step of
the equal protection analysis, which is to determine the appropriate standard of
review. McCusker, 639 A.2d at 778.
There are three levels of review in an equal protection analysis: strict scrutiny,
applied where the right involved is fundamental or a suspect classification has been
made; heightened or intermediate scrutiny, applied where the right involved is
important, but not fundamental, or a sensitive classification is made; or rational
basis, applied where the alleged equal protection violations do not implicate the
other standards. Id. The parties agree that the rational basis standard applies. The
Court’s review of a government regulation related to social welfare benefits, like
WC benefits, is deferential. McCusker, 639 A.2d at 779. Legislative classifications
subject to rational basis scrutiny enjoy a strong presumption of validity. Kramer,
883 A.2d at 534. When applying the rational basis test,
we determine whether the challenged statute seeks to promote any
legitimate state interest or public value; and if so, we then determine
whether the legislative classification is reasonably related to
accomplishing that articulated state interest . . . . This deferential
standard recognizes the legislative prerogative to “define the scope and
the duration of the entitlement to . . . benefits, and to increase, decrease,
or to terminate those benefits based on its appraisal of the relative
importance of the recipients’ needs and the resources available to fund
the program.
Caputo, 34 A.3d at 916 (quoting Bowen v. Guillard, 483 U.S. 587, 598 (1987)).
Legislation “in this area will not be deemed to violate equal protection merely
because the classification drawn is imperfect . . . . The classification need only be
directed at the accomplishment of a legitimate government interest, and to do so in
19
a manner which is not arbitrary or unreasonable.” Id. (alteration in the original)
(internal quotations and citations omitted).
In Caputo, we applied the rational basis test to the equal protection challenge
to the Social Security old age benefits offset. Initially, we explained that “[t]he
legislature has made the policy decision that because the employer helps to fund
Social Security, it should receive a credit towards [WC] disability.” Id. at 912. We
observed that under the rational basis standard, “the General Assembly need not
specifically articulate the purpose or rationale supporting its action”; rather, “[i]t is
enough that some rationale may conceivably be the purpose and policy underlying
the enactment.” Id. at 917 n.15. Accordingly, “courts are free to hypothesize reasons
why the legislature created the particular classification at issue and, if some
legitimate reason exists, the provision cannot be struck down, even if its soundness
or wisdom might be deemed questionable.” Id.
With regard to the legitimate governmental interests at issue in Section 204(a),
we held
[t]he Supreme Court has . . . identified one legitimate governmental
interest underlying all of the offsets in Section 204(a): “Reasonable
[WC] cost containment for employers, and the concomitant competitive
benefit such cost containment offers for Pennsylvania businesses.”
[Kramer,] . . . 883 A.2d at 535.[] We identify a second legitimate
governmental interest to this particular offset: to encourage individuals
collecting Social Security retirement benefits to remain in or reenter the
workforce.[]
Caputo, 34 A.3d at 917 (footnotes omitted). The Court concluded that the
challenged legislative classification was reasonably related to the articulated
governmental interests, reasoning:
[p]ermitting an employer to offset [WC] disability benefits by 50% of
an employee’s Social Security retirement benefit is reasonably related
20
to reducing the employer’s [WC] costs. If the employer is self-insured,
the reduction is obvious because it is direct. Every dollar offset is a
dollar in savings to the employer. The cost reduction to privately
insured employers is less direct; however, [WC] insurance premiums
“are based at least in part on past payment experience.” Kramer, . . .
883 A.2d at 535-36. Reducing the amount of compensation claims
ameliorates the employer’s future premiums. . . .
Caputo, 34 A.3d at 917. In rejecting the claimant’s argument that WC benefits and
Social Security old age benefits were not duplicative, and, therefore, did not
implicate cost containment, we again found the Supreme Court’s reasoning in
Kramer, a challenge to the severance offset, persuasive, stating:
there is nothing irrational or arbitrary in offsetting
severance benefits, irrespective of whether the employer
is self-insured or privately insured. The worker
experiences only one loss of earnings at a time, even if
there is a prospect of compensation for that loss from
multiple sources. The offset does not disadvantage the
injured worker vis a vis his uninjured colleagues who also
receive severance benefits because those workers do not
receive a double benefit, in the form of [WC] payments,
from the employer. Because the employment relationship
is the basis for providing both severance payments and
[WC] benefits (whether or not the compensation is paid
through an outside insurer), the employer can avoid paying
duplicate benefits for the same loss of earnings by using
the offset. We conclude that the severance benefit offset
bears a rational relationship to achieving the legislative
goals.
[Kramer], 883 A.2d at 535 (emphasis added).
The Supreme Court’s above-stated rationale is equally applicable
to this case. The employment relationship is the basis for providing
both [WC] benefits and Social Security retirement benefits. The latter
benefit is traceable to the Social Security tax contribution every
employer makes toward its employees’ social security retirement. The
General Assembly recognized that the employer’s contribution is
only partial by enacting a 50% offset rather than a dollar for dollar
21
offset. The 50% offset is not a perfect fit because a claimant may
have a long work history with multiple employers. In such a case,
the last employer would benefit even though it was not the
employer that made all of the contributions to the Social Security
trust fund on behalf of the employee. Legislative classifications are
not required to be perfect to pass constitutional muster.
The General Assembly chose a 50% offset as a fair
approximation of the employer’s contribution because of the burden to
tailor the offset in each individual case to the actual Social Security tax
contributions made by an employer for the employee subject to the
offset. Further, former employers will benefit by having the offset
apply where they, in turn, have a short history with an employee who
is injured and then retires. The goal of the 50% offset is to achieve
fairness to the group of all Pennsylvania employers. Statutory
regulation of social welfare benefits “does not violate the Equal
Protection Clause because the classifications drawn are imperfect; if the
classification has a reasonable basis, it does not offend the
Constitution.” McCusker, . . . 639 A.2d at 780. It is not for this Court
to speculate as to whether Section 204(a)’s 50% offset is the wisest or
best means to accomplish the legitimate legislative goal of cost
containment. Indeed, there are an infinite array of policy choices the
legislature could have made with respect to [WC] benefits. It could
have decided that [WC] disability, which is intended to replace an
injured worker’s earning power, should end as soon as that employee
retires. After all, other employees, who are not injured before
retirement, are limited to their Social Security and retirement pension.
In its wisdom, however, the legislature has decided that [WC] should
continue post-retirement, recognizing that many retirees wish to work
well into their retirement. So long as a work injury deprives the
claimant of the opportunity to earn income, compensation benefits
continue.
Caputo, 34 A.3d at 917-18 (bold emphasis added). Thus, this Court found that the
legislative classification satisfied the rational basis test and rejected the claimant’s
equal protection challenge.
Claimant asserts that Caputo did not address the same challenge as that raised
here and, therefore, is not binding. While Caputo did not address an equal protection
challenge to the different offsets based on the type of benefit a claimant receives, we
22
conclude its reasoning nonetheless supports the same result here. Claimant’s
challenge is based on the belief that the amount an employer funds a particular
employee’s Social Security old age benefits can be discerned from the employee’s
wage statements, pointing to his own four weeks of pay stubs as evidence. If those
amounts are discernible, Claimant contends, they should be treated the same as
severance and pension benefits, which would satisfy the legitimate government
interest of cost containment and avoid an equal protection violation. While the
Legislature could have used the same language for calculating the Social Security
old age benefit offset as it did for the other offsets had it wanted the parties to have
to engage in the mathematical exercise Claimant posits is possible and should be
performed, it did not.
As we explained in Caputo, the use of the 50% offset was in recognition of an
employer’s partial contribution to the Social Security trust fund, and, while “not a
perfect fit,” it was “a fair approximation of the employer’s contribution” made to
avoid “the burden to tailor the offset in each individual case to the actual Social
Security tax contributions made by an employer for the employee subject to the
offset.”16 Id. at 917-18. “Legislative classifications are not required to be perfect
to pass constitutional muster.” Id. at 918 (emphasis added). Using the 50% offset
was an effort to achieve fairness for all Pennsylvania employers by acknowledging
that there may be some situations where an employer benefits from the offset and
some where they would not, depending on the length of the employment
relationship. Id. The same issue is generally not present in the severance or pension
offset situation, which focuses on the relationship between a particular employer and
16
Given this statement in Caputo, we question Claimant’s premise, based on the four-week
work experience here, that every employer’s contributions to every employee’s Social Security
old age benefits would be so easily discernable.
23
its injured employee and how that particular employer funded the employer-
provided benefit. As the Court may hypothesize a reason for why a particular
legislative classification was created that is legitimate, we conclude the above
reasons support the difference here. Id. at 917 n.15. For these reasons, we discern
no violation of Claimant’s equal protection rights by Employer’s taking the Section
204(a) offset for Claimant’s Social Security old age benefits. Accordingly, the WCJ
did not err in denying Claimant’s Petitions.
B. Whether the WCJ Improperly Considered Smychynsky’s Testimony and
Report in Granting the Modification Petition.
1. Parties’ Arguments
Claimant argues that Smychynsky and/or Employer did not comply with the
Regulations and therefore, Smychynsky’s earning assessment and deposition should
not have been considered. Specifically, Claimant asserts that Smychynsky testified
that the vocational report was sent only to Employer’s insurer, not to Claimant and
Claimant’s counsel, and there is no indication that Smychynsky had generated a
written initial report detailing the expert’s involvement in the litigation and
conclusions from the interview within 30 days, in violation of Section 123.204(b),
(c) of the Regulations, 34 Pa. Code § 123.204(b), (c). Claimant testified he did not
receive any assessments in the mail or letters from Smychynsky that identified jobs.
Claimant further argues that Smychynsky admitted to being unaware of whether
Employer had forwarded a financial interest disclosure to Claimant as required by
Section 123.205 of the Regulations, 34 Pa. Code § 123.205, and that no such
document is in Claimant’s file. Claimant further asserts that, contrary to the Board’s
conclusion, these arguments are not waived because they were raised in the Answer
to the Modification Petition, as well as during Smychynsky’s deposition and
Claimant’s testimony.
24
Employer replies that the Board properly found these objections to be waived
as a result of Claimant’s failure to preserve them in writing as required by Section
131.66(b) of the WCJ Rules, by which Claimant’s counsel agreed to abide at the
beginning of Smychynsky’s deposition. For this reason and the fact that Claimant
did not otherwise articulate the substance of the objections, Employer contends, the
WCJ did not address them and properly considered Smychynsky’s report and
deposition. Even if preserved, Employer argues that the record reflects that there
were no violations because Smychynsky’s report shows Claimant and Claimant’s
counsel were copied on the report, and the testimony upon which Claimant relies
related to the job analysis forms sent to Dr. Mendez and Dr. Sweet, which is not
subject to the Regulation. Further, Employer asserts there was no financial interest
at issue and, therefore, no disclosure was required.
2. Analysis
We address the waiver argument first. Section 131.66 of the WCJ Rules
governs the “[a]dmissibility of oral depositions,” and subsection (b) provides that
“[o]bjections shall be made and the basis for the objections stated at the time of the
taking of the depositions” and “[o]nly objections which are identified in a separate
writing, introduced prior to the close of the evidentiary record, . . . stating the specific
nature of the objections and the pages where they appear in the deposition . . . will
be preserved for ruling.” 34 Pa. Code § 131.66(b). Any “[o]bjections not so
preserved are waived.” Id.; see also Degraw, 926 A.2d at 1001 (finding any issue
not preserved as required by Section 131.66(b) was waived).
While the record confirms that Claimant did not submit a separate, written list
of the objections to Smychynsky’s testimony and earnings analysis, Claimant
expressly raised the alleged violation of the Regulations in the Answer to the
25
Modification Petition. Therein, Claimant stated: “[i]t is believed and therefore
averred that the [WCJ] may not consider the results of . . . Smychynsky’s Earning
Power Assessment as [Smychynsky] failed to comply with Section 123.204 of the
Regulations, and the involved [WC] Carrier failed to comply with Section 123.205
of said Regulations.” (Answer to Modification Petition, C.R. Item No. 6.)
Claimant’s challenge to the consideration of Smychynsky’s earning power
assessment was not related to anything particular to Smychynsky’s testimony or the
deposition, but was a defense to the Modification Petition based on the alleged
noncompliance with the Regulations. Thus, it is not clear whether this provision,
which focuses on the admissibility of oral deposition, applies here. Second, this
objection (defense) was brought to the WCJ’s, as well as Employer’s, attention at
the earliest moment in this matter, was repeated during Smychynsky’s deposition,
and Claimant’s counsel indicated at the final hearing that there were objections to
Smychynsky’s materials contained therein. (WCJ Hearing Transcript (Hr’g Tr.),
Feb. 15, 2018, at 4, C.R. Item 24.) Under these circumstances, particularly where
Claimant raised this defense to the Modification Petition itself - Employer’s reliance
on Smychynsky’s earning power assessment - in writing in Claimant’s Answer, we
conclude Claimant sufficiently preserved his challenge based on the alleged
noncompliance with Sections 123.204 and 123.205 of the Regulations. However,
upon review of the record, we, like the Board, discern no violation of these
provisions that would require reversal.
Section 123.203(c) of the Regulations provides that a WCJ “may not consider
the results of an earning power assessment interview if the [WCJ] finds that the
vocational expert has not complied with [Section] 123.204 . . . or that the insurer has
not complied with [Section] 123.205.” 34 Pa. Code § 123.203(c). Claimants “bear
26
the responsibility of raising the issue of a vocational expert’s alleged failure to
comply with” the Regulations “as a defense to a modification before the WCJ.”
Kleinhagan v. Workers’ Comp. Appeal Bd. (KNIF Flexpak Corp.), 993 A.2d 1269,
1275-76 (Pa. Cmwlth. 2010). “Once this is done, the burden should shift to the
employer to establish” compliance with the Regulations. Id. at 1276.
Section 123.204(b) provides that “[a] vocational expert who conducts an
earning power assessment interview shall generate a written initial report detailing
the expert’s involvement in the litigation and conclusions from the interview,” and
“shall serve a copy of the initial report on the employee and counsel, if known, within
30 days of the date of the interview.” 34 Pa. Code § 123.204(b). Although Claimant
cites testimony that Smychynsky only sent reports and job analysis forms to
Employer’s TPA and/or Dr. Mendez and Dr. Sweet to review, (Smychynsky’s Dep.
Part 1 at 93; Smychynsky’s Dep. Part 2 at 114), the record reflects otherwise. Both
Claimant’s counsel and Claimant were carbon copied, along with Employer’s
counsel, on the Earning Capacity Assessment, which set forth Smychynsky’s role in
the litigation, conclusions from the interview, review of the medical materials, and
the LMS, including a list of the 23 positions identified. (Smychynsky’s Dep. Part 2,
Ex. Smychynsky-4.) Claimant’s receipt of the Earning Capacity Assessment is
confirmed by Claimant’s own testimony and Claimant’s Exhibit C-04, which show
that Claimant received the materials and followed through with applying for many
of those positions. (FOF ¶ 18(h); Feb. 25, 2018 Hr’g Tr., Ex. C-04.) While the
Earning Capacity Assessment may have been sent more than 30 days after
Claimant’s interview,17 it was sent immediately following the completion of
17
Employer asserts there is no violation because Claimant’s attorney “received a February
24, 2017 report from [Smychynsky] as he was supposed to have sent [to Claimant] within 30 days
(Footnote continued on next page…)
27
Smychynsky’s search for available positions. Under these circumstances, and
because Claimant does not assert any prejudice from the delay, we discern no error
in the WCJ’s consideration of Smychynsky’s materials on this basis.
Section 123.204(c) provides that “[a] vocational expert who authors
additional written reports, including earning power assessments or labor market
surveys, shall simultaneously serve copies of these written reports upon the
employee and counsel, if known, when the expert provides the written reports to the
insurer or its counsel.” 34 Pa. Code § 123.204(c). Claimant argues that Smychynsky
violated this provision, again citing Smychynsky’s testimony that reports and job
analyses were sent only to Employer’s TPA and/or for Dr. Mendez and Dr. Sweet to
review. (Smychynsky’s Dep. Part 1 at 93; Smychynsky’s Dep. Part 2 at 114.)
However, as discussed above, the Earning Capacity Assessment reflects that it was
sent to Claimant and Claimant’s counsel, and Claimant admitted to receiving that
report. (Smychynsky’s Dep. Part 2, Ex. Smychynsky-4; FOF ¶ 18(h); Feb. 25, 2018
Hr’g Tr., Ex. C-04.) As for the job analysis forms and accompanying letters that
were sent to Dr. Mendez and Dr. Sweet, these are not subject to this Regulation
because they are not “written reports,” 34 Pa. Code § 123.204(c), authored by
Smychynsky, but were inquiries sent to the IME physicians to determine whether
the identified positions were consistent with those physicians’ work releases for
Claimant. (Smychynsky’s Dep. Part 2, Exs. Smychynsky-5, C-Smychynsky-3.)
Accordingly, we discern no error in the WCJ’s consideration of Smychynsky’s
testimony and reports on this basis.
of the vocational interview[,]” which “was appropriately copied to Claimant and his attorney.”
(Employer’s Br. at 26-27.) However, we cannot consider this factual statement because the record
does not include this alleged report. Indem. Ins. Co. of N. Am. v. Bureau of Workers’ Comp. Fee
Rev. Hearing Off. (Insight Pharm.), 245 A.3d 1158, 1165 (Pa. Cmwlth. 2021).
28
Finally, Section 123.205(b) of the Regulations state that “[b]efore an insurer
refers an employee for an earning power assessment interview, the insurer shall
disclose to the employee, in writing, any financial interest the insurer has with the
person or entity conducting the earning power assessment interview.” 34 Pa. Code
§ 123.205(b) (emphasis added). This regulation must be read consistently with
Section 306(b)(2.1) of the Act, which provides that “[i]f an insurer refers an employe
for an earning power assessment and the insurer has a financial interest with the
person or in the entity that receives the referral, the insurer shall disclose that
financial interest to the employe prior to the referral.” 77 P.S. § 512(2.1) (emphasis
added). This language supports Employer’s argument that if there is no financial
interest present, there is nothing to be disclosed.18 Here, based on Smychynsky’s
testimony, the WCJ found that there was no financial interest between Employer or
its representative and Smychynsky or his business. (FOF ¶ 15(a).) As such, no
disclosure was required prior to the interview. For these reasons, the WCJ was not
precluded from considering Smychynsky’s materials on this basis.
C. Whether the WCJ Should Have Considered Claimant’s Conviction in
Determining Claimant’s Residual Productive Skill and Whether the
Identified Positions were Actually Open and Available to Claimant.
1. Parties’ Arguments
Claimant argues that the WCJ erred in not considering the conviction, and the
resulting employment restrictions, which made some of the positions identified not
actually open and available to Claimant, as part of Claimant’s residual productive
skill. Claimant asserts that the term “residual productive skill,” as used in Section
306(b)(2), should be read broadly to include factors other than a claimant’s physical
18
While not binding, it appears that the Board interprets Section 123.205(b) the same way.
See Ware v. Pa. State Sys. of Higher Educ. (Pa. Work. Comp. App. Bd., A14-0323, filed Sept. 24,
2015), 2015 WL 5898562, at *8-9.
29
restrictions associated with the work-related injury. According to Claimant, Section
306(b)(2) required the WCJ to examine his “condition at the time ‘earning capacity’
is being challenged[,]” to determine Claimant’s residual productive skill, which here
includes Claimant’s status as a Class II felon. (Claimant’s Br. at 46.) Claimant
likens this matter to Kolenkiewicz v. Workers’ Compensation Appeal Board (SKF
USA, Inc.), 730 A.2d 1054, 1057 (Pa. Cmwlth. 1999), in which Claimant contends
this Court held that an employer had to show that a criminal conviction would not
prevent a position from being available. Claimant asserts Smychynsky
acknowledged that the security guard positions were not appropriate given the
conviction and that any position that required a background check was more likely
than not unavailable to Claimant and, therefore, should not have been considered.
Employer argues there was no error in the WCJ’s conclusion that Claimant’s
conviction, which occurred after the work injury, was not relevant to Claimant’s
residual productive skill and whether the jobs identified were open and available to
Claimant. According to Employer, it need not show that any of the prospective jobs
would accommodate any of Claimant’s non-work-related physical limitations to
meet its burden, Markle, 661 A.2d at 1358, and the same principle should be applied
to other non-physical factors or limitations that occurred after and are unrelated to
the work injury. Further, Employer argues, the mere fact that a criminal background
check is required does not necessarily mean that a position is automatically
unavailable to Claimant. For these reasons, Employer asserts it should not be
additionally burdened to identify employment within the limitations associated with
Claimant’s post-work injury, criminal conviction.
30
2. Analysis
Section 413 of the Act authorizes an employer to modify a claimant’s WC
benefits if it proves that “the disability of an injured employe has increased,
decreased, recurred, or has temporarily or finally ceased.” 77 P.S. § 772. Pursuant
to this section, “when an employer seeks to modify a claimant’s benefits by a
reduction, suspension, or termination of such benefits, the employer must first come
forward with medical evidence of a change in the claimant’s physical condition that
correspondingly establishes a change in the claimant’s ‘disability[,]’” which means
the loss of earning power. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd.
(Shoap), 81 A.3d 830, 841 (Pa. 2013).
Section 306(b)(2) of the Act addresses earning power and partial disability,
and provides, in relevant part:
“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.
Disability partial in character shall apply if the employe is able to
perform his previous work or can, considering the employe’s residual
productive skill, education, age and work experience, engage in any
other kind of substantial gainful employment which exists in the usual
employment area in which the employe lives within this
Commonwealth. . . . If the employer has a specific job vacancy the
employe is capable of performing, the employer shall offer such job to
the employe. In order to accurately assess the earning power of the
employe, the insurer may require the employe to submit to an interview
by a vocational expert who is selected by the insurer and who meets the
minimum qualifications established by the department through
regulation.
77 P.S. § 512(2) (emphasis added). “Earning power under Section 306(b) is
unmistakably based on the employer’s evidence of the claimant’s ability to engage
in existing ‘substantial gainful employment’ within his or her physical, medical, and
31
vocational restrictions or skills, not on whether he or she actually receives a job
offer.” Phoenixville Hosp., 81 A.3d at 842. Unless the employer has an appropriate
position, Section 306(b)(2) “does not require that the claimant be offered a job in
order to establish the claimant’s earning power.” Id. However, in determining
whether an employer meets its burden of proof, “[t]he jobs identified by the
employer’s expert witness that the claimant is ‘capable of performing’ must thus be
those jobs that are actually open and potentially available, not simply jobs that are
already filled with existing employees.” Id. This may be established through the
testimony of a vocational expert. 77 P.S. § 512(2).
Here, the WCJ found that Employer met its burden of proof based on
Smychynsky’s credited expert opinion that Claimant had an earning power of
$520.00 per week, which was based on a 40-hour work week at the highest paid
position available to Claimant, which was the G4S Security Services position that
was vocationally appropriate and open and available. (FOF ¶¶ 15(k), (hh), (ii), (jj),
27(e); COL ¶ 2.) Claimant challenges the reliance on any of the security positions
because they were not “available” due to his conviction, which is now a part of his
“residual productive skill.” 77 P.S. § 512(2). Accordingly, the question before the
Court is what role, if any, Claimant’s Class II felony conviction plays in determining
whether Employer met its burden of proving that there were appropriate, available
jobs within Claimant’s “physical, medical, and vocational restrictions or skills.”
Phoenixville Hosp., 81 A.3d at 842. The WCJ and Board held the conviction has no
impact on what Employer must prove because it occurred after the work injury and
was not related thereto. We agree.
Claimant relies on the phrase “residual productive skill” as used in Section
306(b)(2), 77 P.S. § 512(2), which he contends must take into account his Class II
32
felony conviction. This phrase is not defined by the Act and is a separate
consideration from a claimant’s “education” and “work experience.” Id. A
claimant’s “productive skill” is modified by the word “residual,” which is undefined
by the Act but may be defined as meaning “remaining; leftover.” Black’s Law
Dictionary 1424 (9th ed. 2009).19 We read “residual” to refer to the productive skill
that remains or is leftover as a result of a claimant’s work-related injury and
without consideration of any non-work-related factors that arose after the work
injury. This reading is consistent with precedent, which focus on the work-
relatedness of any limitations, as well as on the timing of the events that may affect
a claimant’s ability to return to work.
In Sheehan v. Workmen’s Compensation Appeal Board (Supermarkets
General), 600 A.3d 633, 636 (Pa. Cmwlth. 1991), we rejected a claimant’s argument
that the referee20 erred in refusing to consider the medical limitations related to the
claimant’s subsequent, non-work-related heart attack in granting the employer’s
modification petition. We explained that the inquiry into the appropriateness and
availability of a position for the purposes of a modification petition reviews only the
limitations that are the result of the work injury and does not “include those
physical limitations resulting from a non-work-related injury with no [causal]
connection to the prior work-related injury []or which are related to physical
limitations existing prior to the injury.” Id. at 632. To hold otherwise “would require
the employer to compensate an employee for injuries occurring away from the job
during the period that the employee is recovering from his or her work-related
19
Under Section 1903(a) of the Statutory Construction Act of 1972, words shall be given
their common and approved usage, 1 Pa.C.S. § 1903(a), and where words are undefined by the
statute, the courts may look to dictionary definitions to do so, Cox v. Johnstown Housing.
Authority, 212 A.3d 572, 580 (Pa. Cmwlth. 2019).
20
Prior to 1996, WCJs were called referees.
33
injury,” and “[t]he intent of [t]he . . . Act is to compensate only work-related injuries
or those [causally] connected thereto.” Id. (emphasis added).
In Markle, our Supreme Court applied Sheehan to consider whether an
employer had to consider a preexisting medical condition, unrelated to the work
injury, in meeting its burden of proving job availability. There, the claimant
sustained a work-related back injury, was cleared to return to restricted work, and
the employer assigned the claimant to a position with no loss of earnings but in a
different area of the employer’s facility. However, due to a preexisting, non-work-
related condition, the claimant could not work in the assigned area, refused the
position, and sought reinstatement of his WC benefits. The referee denied
reinstatement, finding that the employer had made a position within the work-related
restrictions available, which the claimant had rejected. The Board and this Court
affirmed. The Supreme Court also affirmed, observing that WC was intended to
replace “common law tort actions between employees and employers as a means for
obtaining compensation for injuries,” and that “claimant[s] may only collect for
those injuries arising out of [their] employment.” 661 A.2d at 1357. Finding that
the employer had met its burden of proving job availability, so as to defeat
reinstatement, the Supreme Court explained, citing Sheehan, that while a claimant’s
physical limitations are a factor to be considered, only those limitations causally
related to the work injury and that did not preexist can be used to determine job
availability under the Act. Id. at 1358. The Supreme Court agreed with Sheehan
that holding otherwise would be inconsistent with the Act by requiring an employer
to compensate a claimant for non-work-related conditions while the claimant was
recovering from the work-related injuries. Id. The Supreme Court found further
34
support for its conclusion in Section 413(a) of the Act,21 which allowed for
reinstatement of benefits “unless it be shown that the loss of earnings does not result
from the disability due to the injury.” Id. at 1360. Because the employer had made
a job within the claimant’s work-related restrictions and with no loss of earnings
available, the claimant’s loss of earnings was not the result of the work injury and
he was not entitled to WC benefits. Id.
The Supreme Court later, in Schneider, Inc. v. Workers’ Compensation
Appeal Board (Bey), 747 A.2d 845 (Pa. 2000), described an employer’s burden of
proving job availability for purposes of the suspension of benefits as follows. “If an
employer can establish that there is a job available that complies with an
employee’s remaining work-related physical injuries, and the employee fails to
return to or accept this position because of non[-]work-related factors, the
employer has proven that the employee’s loss of earnings is attributable to something
other than the work-related injury.” Id. at 849 n.9 (emphasis added). In that case,
the claimant was cleared to return to sedentary work from the work injury but was
unable to perform any work because of a devastating non-work-related injury
sustained after the work injury. Under that situation, the Supreme Court held the
employer did not have to establish job availability within the claimant’s work-related
restrictions because it would be futile given the claimant’s non-work-related injuries.
21
Section 413 of the Act provides, in pertinent part, that:
A [WCJ] designated by the department may, at any time, modify, reinstate,
suspend, or terminate a notice of compensation payable, an original or supplemental
agreement or an award of the department or its [WCJ], upon petition filed by either
party with the department, upon proof that the disability of an injured employe has
increased, decreased, recurred or has temporarily or finally ceased.
77 P.S. § 772.
35
Although these cases did not involve a modification pursuant to an LMS, the
common theme throughout is that, for a limitation on a claimant’s ability to work
generally or on the availability of a particular position to be considered by a WCJ,
the limitation must be related to the work injury, particularly if the limitation
arises from events occurring after the work injury. Applying this analysis to
Claimant’s argument that “residual productive skill” requires consideration of his
post-injury conviction renders that argument without merit. Requiring that for a
limitation to be considered a part of a claimant’s “residual productive skill” it must
be related to the claimant’s work injury and not occur after the work injury gives
meaning to the word “residual” by ensuring that the productive skill being
considered is that which remains or is left over from the work injury. Otherwise,
Employer would be responsible for compensating Claimant for his inability to obtain
higher paying work based on limitations that arose after the work injury and were
unrelated to that injury. Imposing such an obligation on Employer would be
inconsistent with the Act’s intent as set forth by this Court in Sheehan and approved
by the Supreme Court in Markle. Applying this limitation to modifications pursuant
to an LMS is consistent with these cases and the Act’s intent. Here, it is not disputed
that the cited limitations to Claimant’s employment prospects relate to his Class II
felony conviction that occurred after the work injury and that are completely
unrelated to the work injury. As the claimed limitations are not causally related to
Claimant’s work injuries, but to his own after-the-fact actions, we agree with the
Board that this conviction “has no bearing on the [LMS] and earning power
assessment performed by” Employer. (Board Op. at 18.)
Although Claimant relies on Kolenkiewicz, that case does not require a
different result. First, unlike here, the claimant there had been convicted of a crime
36
in 1969, decades before he sustained a work injury in 1988 and left work in 1995,
for which the claimant received wage loss benefits. Thus, if a conviction was to be
considered a part of the claimant’s “productive skill,” the conviction in that case
existed prior to the work injury and, consequently, could be viewed as part of the
claimant’s “remaining” productive skill after the work injury. Second, the Court did
not clearly hold, as Claimant argues, that an employer must show that a conviction
does not automatically bar the claimant from the position relied upon by the
employer because it requires a background check. Rather, we explained that
“[a]ssuming, arguendo, that the [e]mployer had the burden to prove [that the
c]laimant’s conviction did not automatically bar [the c]laimant from being
considered for the job,” the employer’s evidence “was sufficient . . . to establish that
the job was available to [the c]laimant” because it indicated that a criminal
conviction did not automatically exclude an applicant from consideration. 730 A.2d
at 1056-57 (emphasis added). Thus, we held that if the employer had to show this,
the employer had, in fact, met its burden. Accordingly, Kolenkiewicz does not
require reversal.
Because requiring the WCJ to consider non-work-related injury limitations
that were the result of actions that occurred after the work-related injury as part of
Claimant’s “residual productive skill” in determining whether a position identified
by an employer is appropriate and/or open and available is inconsistent with the
caselaw and the Act’s intent, we discern no error in the WCJ’s decision not to do so
here.
37
D. Whether the WCJ’s Decision is Reasoned as Required by Section 422(a)
of the Act.
1. Parties’ Arguments
Claimant raises two arguments that claim the WCJ did not issue a reasoned
decision as required by Section 422(a) of the Act. First, Claimant argues that there
is an inconsistency in Dr. Mendez’s testimony and opinions, citing Findings of Fact
13 and 21, in which the WCJ summarized and credited Dr. Mendez’s testimony
regarding Claimant’s full recovery and ability to return to the time-of-injury, heavy-
duty position, and Finding of Fact 15(m), (o), in which the WCJ found that Dr.
Mendez had disapproved 2 of the positions identified for Claimant by Smychynsky
because they required lifting of over 20 pounds and 1 position required Claimant to
stand for more than 4 hours. Claimant argues the WCJ never addressed the
inconsistency in Dr. Mendez finding Claimant fully recovered and releasing
Claimant for full duty, while simultaneously disapproving positions as not being
physically appropriate for Claimant to perform. According to Claimant, that Dr.
Sweet opined that Claimant could not lift more than 20 pounds occasionally, did not,
as the Board reasoned, support Dr. Mendez’s limitation based on standing for more
than 4 hours.
Second, Claimant argues the WCJ’s explanations for rejecting Dieckman’s
testimony, that he had not contacted the potential employers until eight months after
the LMS had been completed and that the positions did not meet Dr. Mendez’s
restrictions where, according to the WCJ, no such restrictions existed, do not satisfy
the reasoned decision requirements of Section 422(a). Claimant maintains that the
timing of Dieckman’s inquiry “does not render the opinion of suitability for
[Claimant] less credible, nor should it render the [t]estimony any less credible if it
was determined that the jobs NEVER existed, as described in the” LMS.
38
(Claimant’s Br. at 51.) Additionally, Claimant points out that, notwithstanding Dr.
Mendez’s opinion of full recovery, Dr. Mendez did not approve 2 of the 5 identified
positions because they required lifting of more than 20 pounds and 1 position
because it required standing for more than 4 hours, an inconsistency that invalidates
the WCJ’s rejection of Dieckman’s testimony.
Employer argues the WCJ’s Decision is reasoned and disputes that Dr.
Mendez’s opinions were “diametrically opposed.” (Employer’s Br. at 28.)
Employer asserts that Dr. Mendez’s restrictions were consistent with the reviewed
medical reports and records in that the lifting restrictions were imposed by Dr.
Sweet, and the standing restriction was supported by Claimant’s non-work-related
surgery on the left knee. Such restriction, Employer maintains, is not inconsistent
with Dr. Mendez’s opinion that Claimant was fully recovered from the non-upper
extremity injuries, which were to Claimant’s right side. Employer further points out
that Dr. Mendez never testified regarding the job analyses, beyond saying Claimant
had no restrictions related to the non-upper extremity injuries; rather, those
approvals or approvals with modification were introduced during Smychynsky’s
testimony and exhibits. With Dr. Mendez not testifying on these points or
authenticating the notes on the job analyses forms as his own, Employer contends
the WCJ was not required to consider those notes as creating an inconsistency,
particularly where a decision does not require a line-by-line analysis of the evidence
presented in order to be reasoned.
As for the WCJ’s rejection of Dieckman’s testimony, Employer asserts there
was no error or violation of the reasoned decision requirements. Employer argues
that the WCJ explained the reasons for rejecting that testimony and it is uncontested
that Dieckman did not contact the identified employers until eight months after
39
Smychynsky completed the LMS. Employer further contends that this was but one
of the reasons the WCJ gave for rejecting Dieckman’s testimony, and the other
reasons, including that Dieckman relied on Dr. Shapiro’s restriction and on
Claimant’s Class II felony conviction, were supported by the record. According to
Employer, the WCJ’s detailed explanations of the credibility determinations are not
arbitrary or capricious and are supported by the record and, therefore, satisfied the
reasoned decision requirement, which is not intended to allow parties to challenge
or second-guess the WCJ’s credibility determinations. (Id. at 35-36.)
2. Analysis
Section 422(a) of the Act provides that all parties in a WC case are “entitled
to a reasoned decision containing findings of fact and conclusions of law based upon
the evidence as a whole which clearly and concisely states and explains the rationale
for the decisions so that all can determine why and how a particular result was
reached.” 77 P.S. § 834. A decision of a WCJ is “reasoned” if it allows for
meaningful appellate review without further elucidation. Daniels v. Workers’ Comp.
Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1052 (Pa. 2003). “[W]hile summaries
of testimony alone would be insufficient to satisfy the reasoned
decision requirement, where a WCJ summarizes testimony and also objectively
explains [the WCJ’s] credibility determinations, the decision will satisfy
the requirement.” Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods), 37
A.3d 72, 76 (Pa. Cmwlth. 2012). In addition, a WCJ cannot simply ignore
uncontroverted evidence but, rather, must adequately explain the reasons why the
WCJ has rejected such evidence. 77 P.S. § 834. The reasoned decision requirement
“does not require the WCJ to give a line-by-line analysis of each statement by each
witness, explaining how a particular statement affected the ultimate decision.”
40
Gumm v. Workers’ Comp. Appeal Bd. (J. Allan Steel), 942 A.2d 222, 228 (Pa.
Cmwlth. 2008) (quoting Acme Mkts., Inc. v. Workers’ Comp. Appeal Bd. (Brown),
890 A.2d 21, 26 (Pa. Cmwlth. 2006)). A reasoned decision challenge “does not
permit a party to challenge or second-guess the WCJ’s reasons for credibility
determinations,” and those determinations will be upheld on appeal unless they were
made arbitrarily or capriciously. Hershgordon v. Workers’ Comp. Appeal Bd.
(Pepboys, Manny, Moe & Jack), 14 A.3d 922, 928 (Pa. Cmwlth. 2011) (quoting
Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 195
(Pa. Cmwlth. 2006)). This is because “the WCJ is the ultimate fact finder and is
empowered to determine witness credibility and evidentiary weight. The WCJ,
therefore, is free to accept or reject, in whole or in part, the testimony of any witness,
including medical witnesses.” Id. (quoting Griffiths v. Workers’ Comp. Appeal Bd.
(Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000)). Reviewing the WCJ’s
Decision, we conclude it is reasoned because it clearly and concisely states and
explains the WCJ’s rationale, objectively explains the credibility determinations,
which are supported by the record and are not arbitrary and capricious, and allows
for meaningful appellate review.
With regard to Dr. Mendez’s testimony, the WCJ provided multiple reasons
for finding Dr. Mendez more credible than Dr. Shapiro, (FOF ¶¶ 21, 24), but
Claimant challenges that determination based on what he contends is an
inconsistency in Dr. Mendez’s “imposed” restrictions. We discern no inconsistency
that would render the WCJ’s Decision not reasoned as required by the Act. Dr.
Mendez unequivocally testified that Claimant was fully recovered from the work-
related non-upper extremity injuries and could return to work without restrictions
related to those injuries and completed an affidavit of recovery for those injuries.
41
(Mendez’s Dep. at 32-34, 61-62; FOF ¶ 13(j), (k).) Dr. Mendez’s September 15,
2016 Physical Capacities Form for Claimant clearly recognized that additional
restrictions could be imposed by another physician for the upper extremity injuries.
(Mendez’s Dep., Ex. D-Mendez-3.) Dr. Sweet imposed those restrictions, and Dr.
Mendez’s recognition of the 20-pound lifting restriction in his review of the job
analyses was not inconsistent with his finding Claimant fully recovered from the
non-upper extremity work injuries. (Smychynsky’s Dep. Part 2, Ex. Smychynsky-
5.) As for the alleged four-hour-per-day standing limitation for the Flagger Force
position, unlike the other four positions, the WCJ did not find that Dr. Mendez
approved the position. (Compare FOF ¶ 15(k), (o), (bb), (cc), with ¶ 15(m).) Dr.
Mendez was not questioned about the notations on the job analysis forms during his
deposition, which were attributed to him during Smychynsky’s deposition. Given
the lack of finding, it does not appear that the WCJ considered, or credited, any of
the alleged restrictions on the Flagger Force position attributed to Dr. Mendez.
Further, as Employer points out, and the WCJ found, Dr. Mendez noted at the
September 15, 2016 IME that Claimant recently had non-work-related surgery on
the left knee, which caused a limited range of motion, an antalgic gate, and a slight
limp. (FOF ¶ 13(i); Mendez’s Dep. at 26-27, 29.) Given Dr. Mendez’s recognition
of Claimant’s left knee surgery, assuming that the written notation on the job
analysis form is Dr. Mendez’s, it is not “diametrically” opposed to and inconsistent
with Dr. Mendez’s finding of full recovery from the right-sided work injuries, such
that the WCJ was ignoring uncontroverted evidence that the restriction was related
to the work injury thereby rendering the WCJ’s credibility determination arbitrary
and capricious. Absent an arbitrary and capricious credibility finding, the WCJ’s
credibility determination will be upheld on appeal. Hershgordon, 14 A.3d at 928.
42
Accordingly, this is not a basis upon which to conclude that the WCJ’s Decision was
not reasoned.
As for Claimant’s challenge to the rejection of Dieckman’s testimony, the
WCJ offered many reasons for finding Dieckman less credible than Smychynsky,
(FOF ¶ 25), but Claimant challenges only the WCJ’s reliance on the facts that
Dieckman performed his LMS eight months later and disqualified some positions
based on “Dr. Mendez’s restrictions,” where the WCJ found that Dr. Mendez had
placed no restrictions on Claimant’s return to work. (Id.) Claimant argues that the
eight-month difference between the LMSs is not a basis for rejecting Dieckman’s
testimony. For this Court to overturn a credibility determination, it must be arbitrary
and capricious. Hershgordon, 14 A.3d at 928. Many of Dieckman’s criticisms of
Smychynsky’s LMS were based on his being unable to contact the same individuals
at the identified employers and questioning and/or identifying exactly what positions
were available and when. These criticisms relate, at least in part, to the timing of
the inquiries because positions that may have been available in March and April
2017, when Smychynsky performed his LMS, may have not been available or had
changed in November 2017, when Dieckman performed his LMS. That the two
vocational experts performed their studies months apart is not an arbitrary and
capricious reason for rejecting Dieckman’s testimony.
As for the rejection of Dieckman’s testimony based on his reliance on Dr.
Mendez’s restrictions where no such restrictions were imposed, we read this reason
as being related to restrictions imposed for the non-upper extremity injuries, the only
specific injuries about which Dr. Mendez had testified. The WCJ found that Dr.
Mendez did not impose any restrictions based on the non-upper extremity injuries
because Claimant was fully recovered therefrom. (FOF ¶ 13(g).) This is supported
43
by Dr. Mendez’s testimony, report, and affidavit of recovery. While the record
contains some reference to Dr. Mendez setting forth other restrictions, which appear
to be unrelated to the non-upper extremity injuries, the WCJ is not required to
perform a line-by-line analysis of all of the evidence presented. Taken as a whole,
we are not left to guess the reasons why the WCJ rejected Dieckman’s testimony,
which are supported by the record and are not arbitrary and capricious.
Because the WCJ’s Decision clearly and concisely explains the WCJ’s
rationale, provides objective reasons for the credibility determinations, which are
supported by the record and not arbitrary and capricious, and allows for meaningful
appellate review, it is reasoned for purposes of Section 422(a). Accordingly, this is
not a basis for reversing.
III. CONCLUSION
In sum, Section 204(a) of the Act does not violate the Equal Protection
Clauses of the United States and Pennsylvania Constitutions because it is rationally
related to a legitimate government interest - cost containment - and is a reasonable
means of achieving that interest. The WCJ did not err in considering Smychynsky’s
testimony and report or in not finding that Claimant’s Class II felony conviction had
to be considered in determining whether Employer met its burden of showing that
the identified jobs were appropriate and/or open and available to Claimant. Finally,
the WCJ’s Decision satisfied the reasoned decision requirement of Section 422(a) of
the Act. Accordingly, the Board’s Order is affirmed.
_____________________________________
RENÉE COHN JUBELIRER, Judge
44
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carl Sadler, :
Petitioner :
:
v. : No. 1294 C.D. 2020
:
Philadelphia Coca-Cola (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
NOW, January 7, 2022, the Order of the Workers’ Compensation Appeal
Board, entered in the above-captioned matter, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge