Argued: September 13, 2017
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE
ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge,
HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H.
WOJCIK, Judge, HONORABLE JOSEPH M. COSGROVE, Judge 
Smith (Claimant) petitions for review of an order of the
Workers' Compensation Appeal Board (Board) that affirmed
an order of a Workers' Compensation Judge (WCJ) granting
a modification petition filed by Claimant's employer,
Supervalu Holdings PA, LLC (Employer). Based upon a labor
market survey showing five available positions within
Claimant's medical restrictions with an average pay of
$400.56 per week, the WCJ modified Claimant's weekly
benefits to the rate of $394.63. Claimant contends the Board
erred in finding substantial evidence for the WCJ's
modification of his benefits, and that the Board further
erred in concluding that the WCJ properly applied the
principles established by the Supreme Court in
Phoenixville Hospital v. Workers' Compensation Appeal
Board (Shoap), 81 A.3d 830 (Pa. 2013). Upon review, we
affirm as modified by this opinion.
February 2011, Claimant sustained a work injury to his head
and neck when a case of store products, weighing
approximately eight or nine pounds, fell from a shelf above
him and struck his head. A temporary notice of compensation
payable, which later converted to a notice of compensation
payable (NCP), described the accepted injuries as a cervical
strain/sprain. Pursuant to the NCP, Claimant began receiving
benefits at the rate of $661.67 per week based upon an
average weekly wage (AWW) of $992.50.
November 2013, Employer filed a modification petition seeking
to modify Claimant's benefits as of April 28, 2013.
Employer's petition further alleged Claimant had an
earning power of $440.00 per week, which would reduce
Claimant's weekly benefit to $368.33. Claimant filed an
answer denying the material allegations of Employer's
modification petition. Employer also requested a supersedeas,
which the WCJ denied.
addition, in March 2014 Employer filed a suspension petition
alleging Claimant was offered a medical procedure highly
likely to cure his disability and return him to gainful
employment. Although the procedure had a low potential risk,
Claimant nevertheless refused the procedure. Claimant filed a
timely answer denying Employer's material allegations.
Employer again requested a supersedeas, which the WCJ denied.
the WCJ's proceedings, Employer presented deposition
testimony from Dr. Jeffrey A. Baum (Employer's
Physician), a physician board certified in orthopedic
surgery. Employer's Physician first treated Claimant for
a work injury in July 2008 which resulted in numbness,
tingling and pain in his upper left extremity. In December
2008, Employer's Physician performed a two-level cervical
discectomy and fusion. Claimant did well following the
surgery and returned to his forklift driver position. In
April 2010, Employer's Physician discharged Claimant from
2011, following his second work injury in February 2011,
Claimant returned to Employer's Physician's care.
Claimant provided a history of his new work injury and
reported symptoms of pain and spasm in his neck.
Employer's Physician continued to see Claimant over the
next several months, during which time Claimant underwent
physical therapy. Claimant continued to report some spasm in
his neck, especially if he would repetitively extend his neck
2012, Claimant returned to Employer's Physician's
office and saw his partner, Dr. Smith (Partner Physician). At
that time, Claimant had more pain and spasm in his neck.
Claimant underwent a three-dimensional CT scan, which
revealed that his earlier bone graft did not completely fuse
the vertebral bodies. Partner Physician advised Claimant of
the failure of the fusion and informed him that the standard
treatment for a failed anterior fusion is to do a posterior
segmental fusion. Employer's Physician testified that
studies indicated an 80% chance that the proposed surgery
would resolve Claimant's symptoms. Further, although
Employer's Physician could not guarantee that Claimant
could return to the pre-injury job following the proposed
surgery, the doctor testified Claimant would be capable of
performing some type of employment with restrictions.
Physician further testified that in late May or early June of
2013, he was provided with job analyses for the following
positions: dispatcher for the American Automobile Association
(AAA); dispatcher with Vector Security; dispatcher with St.
Moritz Security Services, Inc.; and, security guard with
Am-Guard Security, Inc.
also submitted deposition testimony from a vocational
rehabilitation counselor, Nikki Davies (Vocational
Counselor). She testified that the Department of Labor and
Industry approved her to conduct interviews and assess
earning power under the Workers' Compensation
(Act). Vocational Counselor first reviewed information
provided by Employer's Physician regarding Claimant's
restrictions. Claimant could not lift over 25 pounds with no
repetitive overhead lifting and no repetitive neck
an interview, Claimant provided Vocational Counselor with a
history of his work injury and his employment. Prior to
working for Employer, Claimant worked as a lot attendant for
Kenny Ross Chevrolet. Utilizing Claimant's work history,
educational background and work restrictions, Vocational
Counselor performed a transferable skills analysis.
upon her transferable skills analysis and her interview with
Claimant, Vocational Counselor identified five open and
available positions within Claimant's vocational and
medical restrictions, and which were located within
Claimant's geographic area. These positions included
dispatcher at AAA; alarm dispatcher operator at Vector
Security; dispatcher at St. Moritz Security Services, Inc.;
and, two security guard positions with Am Guard Security,
Counselor further testified that the weekly pay for the five
positions ranged from $360.00 to $440.00 per week. This would
equate to an AWW of $400.56.
the WCJ, Claimant testified he worked for Employer for 27
years at different positions including forklift operator and
loader. Claimant sustained his first work injury in 2008 and
began treating with Employer's Physician, who performed
cervical fusion surgery and placed hardware in Claimant's
neck. Following surgery, Claimant returned to work as a lift
being bumped for seniority reasons, Claimant began working at
the selector position, where he sustained a work injury in
February 2011. Claimant was helping a lift operator put cases
on overhead shelves when a case slipped and hit him in the
head. Following the incident, Employer's Physician
removed him from work and prescribed therapy.
September 2011, Claimant returned to light duty work in the
dairy warehouse. He worked in that position until May or June
2012. During that time, he continued to experience pain and
spasms in his neck. Employer's Physician removed him from
work in June 2012. Diagnostic studies revealed a non-union of
the grafts in his cervical spine. Employer's Physician
discussed possible surgery to address the non-union of the
grafts. However, Claimant continued, Employer's Physician
informed him that fixing the non-union would not make him any
better. Further, Claimant testified Employer's Physician
never told him there would be an 80% chance that he would
have a pretty good resolution of his symptoms. Thus, Claimant
testified he was afraid to undergo the proposed surgery,
which would not enable him to return to his pre-injury job.
also testified about meeting with Vocational Counselor and
applying for the five positions she identified as being
available for him. Claimant submitted a resume online to St.
Moritz Security Services for the dispatcher position.
However, St. Moritz never contacted him or offered him
employment. Claimant further testified he never worked as a
also submitted an application to Vector Security for the
alarm dispatch position. However, Vector Security never
contacted him or offered him employment. Claimant testified
the position required moderate to advanced keyboarding
skills, which he did not have.
also contacted AAA about the dispatcher job and spoke to Liz
Jackson in Human Resources. Jackson instructed Claimant to
submit a resume, which he did. However, AAA never contacted
him or offered him employment.
addition, Claimant contacted Am-Guard about the two security
guard positions. Claimant spoke with a gentleman who
instructed him to go to the Career Link Center in Youngwood
and complete an application. Claimant completed the
applications and was interviewed for the positions. However,
Claimant received no further contact from Am-Guard, and
Am-Guard never offered him employment.
further testified he applied for numerous other positions on
his own. However, nobody interviewed him or offered him
the WCJ accepted Vocational Counselor's testimony as
credible and persuasive. WCJ's Op., 12/29/14, Finding of
Fact (F.F.) No. 11. Although Claimant testified he applied
for each of the five positions and was not hired, the WCJ
found "there is nothing in the record to indicate that
the five job positions were not open and available at the
time of his application process, nor is there any evidence in
the record to indicate that they were already filled, and did
not exist." Id. Consequently, based on
Vocational Counselor's testimony that the five positions
equated to an AWW of $400.56, the WCJ reduced Claimant's
AWW as follows: $992.50 - $400.56 = 591.94 x 66 2/3% =
$394.63 weekly benefit rate, effective April 28, 2013.
addition, the WCJ found, based on Employer's
Physician's testimony, that the proposed posterior
segmental fusion surgery would not decrease Claimant's
disability or restore any of his earning power. F.F. No. 12.
Therefore, the WCJ determined Claimant's reluctance to
undergo the posterior segmental fusion did not amount to a
refusal of reasonable medical treatment. Id.
the WCJ denied Employer's suspension petition. However,
the WCJ granted Employer's modification petition and
modified Claimant's weekly benefit rate to $394.63,
effective April 28, 2013.
parties appealed to the Board, which affirmed the WCJ's
decision. In affirming the WCJ's grant of Employer's
modification petition, the Board rejected Claimant's
arguments that the positions were not within his vocational
capabilities and geographic area. To that end, the Board
noted Vocational Counselor's testimony that the five
positions fell within Claimant's transferable skills
analysis. Bd. Op., 4/19/16, at 10. The Board further observed
that Vocational Counselor testified that for someone living
where Claimant did in Lowber, Pennsylvania, Westmoreland
County and Allegheny County would be considered normal
geographic areas for finding employment. Id. at 11.