Appeal from the Order of the Commonwealth Court entered January 8, 2008 at No. 1390 CD 2007, affirming the order of the Workers' Compensation Appeal Board entered June 28, 2007 at No. A06-: 2132. 940 A.2d 1251 (Pa. Commw. 2008).
The opinion of the court was delivered by: Madame Justice Greenspan
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
Harry Riddle (Appellant) is a West Virginia resident formerly employed as an electrician by Allegheny City Electric (ACE) in Pittsburgh, Pennsylvania. In August 2000, Appellant sustained a work-related injury described as right shoulder tendonitis. ACE accepted the injury and began paying workers' compensation benefits in the amount of $480.60 per week. The benefits were calculated based on a stipulated weekly salary of $720.86 per week.
In April 2004, ACE notified Appellant that his benefits would be terminated because he had fully recovered as of March 31, 2004. Appellant challenged the notice of termination and sought to amend the description of his injury. On March 25, 2005, Workers' Compensation Judge Cheryl A. Ignasiak (WCJ Ignasiak) denied ACE's petition, finding that Appellant had not yet fully recovered from his August 2000 work injury. WCJ Ignasiak accepted the testimony of the treating physician who released Appellant to perform light-duty work. Appellant was permitted to amend the description of his injury to include subacromial impingement with bursitis, rotator cuff tear, and tear in the long head of the bicep tendon in the right shoulder area.
On March 9, 2005, given the treating physician's release, ACE filed a petition for modification or suspension of Appellant's workers' compensation benefits. ACE alleged that, considering his age, skills, education, experience, and work availability in the relevant geographical area, Appellant had a residual earning capacity requiring a decrease in benefits. In support of its petition, ACE presented the testimony of James DeMartino, a vocational expert. Appellant answered the petition by denying ACE's allegations. Appellant rebutted ACE's evidence with his own testimony and the report of his vocational expert, Celia P. Evans.
On behalf of ACE, Mr. DeMartino testified that after evaluating Appellant he performed a labor market survey for the Wheeling area in West Virginia and prepared a three-part earning power assessment report (EPA). WCJ Memo. at ¶4(d). In this EPA, Mr. DeMartino identified several available positions, including sales representative, pharmacy technician, plastics laborer, and inventory clerk. Overall, five positions were in Wheeling, West Virginia, two were in Washington, Pennsylvania, and several others were in the nearby State of Ohio.*fn1 None of the positions identified by Mr. DeMartino were in Pittsburgh, Pennsylvania where Appellant was working at the time of his injury.
WCJ Ignasiak held six hearings from May 2005 to August 2006 and accepted expert reports and testimony.*fn2 During the February 2006 hearing, Appellant asked that ACE's petition be dismissed on the ground that in developing an EPA, ACE had not complied, inter alia, with the geographical area requirement of the Workers' Compensation Act Section 306(b)(2), 77 P.S. § 512(2).*fn3 In August 2006, WCJ Ignasiak denied Appellant's request. Further, the WCJ relied on Mr. DeMartino's EPA for Wheeling, West Virginia to grant ACE's modification petition and reduce Appellant's benefits to $279.62 per week effective September 2, 2005.*fn4 WCJ Memo. at ¶¶8(b), 4(d).
On appeal to the Workers' Compensation Appeal Board (WCAB), Appellant contested the WCJ's reliance on the EPA on several grounds, including whether Mr. DeMartino correctly developed the EPA by focusing on Wheeling, West Virginia, where Appellant lived, rather than on Pittsburgh, Pennsylvania, where he worked at the time of his injury. In November 2006, the WCAB affirmed the reduction of benefits.
Appellant appealed and raised the same issue in Commonwealth Court. The Commonwealth Court held that ACE was not precluded from obtaining a modification of benefits based on job availability in West Virginia, Ohio, or Pennsylvania because Appellant had a residence in West Virginia and stayed with his father in Ohio, where he also held a driver's license. Riddle v. Workers' Comp. Appeal Bd., 940 A.2d 1251, 1255 (Pa. Commw. 2008). According to the Commonwealth Court, ACE was not restricted to the Pittsburgh, Pennsylvania area in conducting the EPA. Id.
We granted Appellant's Petition for Allowance of Appeal on the following issue:
Under Section 306(b) of the Workers' Compensation Act, 77 P.S. § 512(2), may an employer meet its burden of proof to justify modification of an award of workers' compensation benefits to an injured non-resident employee, based on an [EPA] which focused on the location of the employee's residence, as opposed to the location where the injury occurred?
Appellant argues that the Commonwealth Court erred in affirming the decision of the WCAB to modify his benefits. According to Appellant, under the plain language of Section 306(b), the EPA was not competent evidence to prove Appellant's earning power. Appellant states that the EPA should have focused on the ...