Opinion
No. 489 C.D. 2012
10-01-2012
Jeffrey Vernille, Petitioner v. Workers' Compensation Appeal Board (Meadville Lodge, 219 BPOE), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Jeffrey Vernille (Claimant) petitions this Court for review of the Workers' Compensation Appeal Board's (Board) February 23, 2012 order affirming the Workers' Compensation Judge's (WCJ) decision granting Meadville Lodge, 219 BPOE's (Employer) modification petition. The issue before the Court is whether Employer met its burden of proving under Section 306(b)(2) of the Workers' Compensation Act (Act) that it did not have an available job within Claimant's work restrictions. We affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 512(2).
On September 4, 2007, Employer filed a petition to suspend or modify Claimant's compensation benefits alleging that, as of August 10, 2007, work was generally available to him. The WCJ issued a decision denying Employer's petition because Employer had not established that Employer did not have a job vacancy that Claimant was capable of performing before seeking a modification or suspension of benefits based on earning power. Employer appealed, and the Board determined that the WCJ erred in concluding that, in order to meet its burden of proof under Section 306(b)(2) of the Act, Employer had to establish that it had no specific job vacancy. Therefore, the Board vacated the order and remanded the case for further findings of fact. On June 8, 2010, the WCJ found that Employer had not met its burden for a suspension of benefits, but that it had met its burden for a modification of benefits. Claimant appealed to the Board. On February 23, 2012, the Board affirmed the WCJ's order. Claimant appealed to this Court.
"This Court's scope and standard of review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or an error of law was committed." World Kitchen, Inc. v. Workers' Comp. Appeal Bd. (Rideout), 981 A.2d 342, 346 n.5 (Pa. Cmwlth. 2009). --------
Claimant argues that because he raised the issue of available lighter-duty employment, Employer had the burden of proving that it had no available positions for Claimant. We disagree.
Claimant specifically relies on Rosenberg v. Workers' Compensation Appeal Board (Pike County), 942 A.2d 245 (Pa. Cmwlth. 2008), for the proposition that if a claimant raises the issue of available employment, the burden shifts to the employer to prove otherwise. However, the Rosenberg Court stated:
Neither the express language of Section 306(b)(2) [of the Act] nor the cases decided under it require proof of the absence of specific jobs with employer as a prerequisite to expert testimony of 'earning power.' While the statute requires an employer to offer an available position if one exists, it does not require employer to prove the nonexistence of such a position. Nor does the statute preclude a claimant from proving the existence of such a position as a defense to modification.Rosenberg, 942 A.2d at 250 (quoting Burrell v. Workers' Comp. Appeal Bd. (Phila. Gas Works & Compservices, Inc.), 849 A.2d 1282, 1287 (Pa. Cmwlth. 2004)) (emphasis added). In regard to shifting the burden to the employer, the Rosenberg Court held that where
the question of an available, suitable job with the employer is raised with evidence, the employer ignores the question at its peril. As with all other elements necessary to succeed in a modification petition, once the issue is raised by evidence of a possible opening with employer, the employer has the burden of proof. Consistent with the plain language of the Act, once the issue is raised with evidence, satisfaction of this element of proof is a prerequisite to employer's reliance on expert testimony of earning power.Id., 942 A.2d at 251 (emphasis added). Here, Claimant testified that he believed Employer had positions that were less strenuous than the maintenance position he held, such as, "bartender, cooking, [and] working in the kitchen." Reproduced Record (R.R.) at 30a-31a. However, Claimant presented no evidence beyond his mere assertions. The only attempt made by Claimant to show a possible job opening does not even begin to meet Claimant's burden of going forward. Claimant's counsel continued to ask if Claimant was aware how many other employees worked for Employer while he worked there, and if there was any turnover while he worked there, to which Claimant responded, respectively, "I know there was at least, oh, maybe 12 or 15 time clerks there," and "oh, a few." R.R. at 31a. Claimant's answers refer to a time period when he was working, not the relevant time period, and to time clerks, not bartenders, cooks or kitchen staff. While Claimant may have raised the issue of available, suitable employment, he clearly did not furnish evidence of a possible opening. Accordingly, the burden did not shift to Employer to prove the non-existence of such a position.
For all of the above reasons, the Board's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 1st day of October, 2012, the Workers' Compensation Appeal Board's February 23, 2012 order is affirmed.
/s/_________
ANNE E. COVEY, Judge