C. Romano v. WCAB (Pocono Services for Families and Children) ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carolann Romano, :
Petitioner :
:
v. : No. 828 C.D. 2019
: Submitted: November 22, 2019
Workers’ Compensation Appeal :
Board (Pocono Services for Families :
and Children), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: February 21, 2020
Carolann Romano (Claimant) petitions for review of an Order of the Workers’
Compensation Appeal Board (Board), dated June 12, 2019, that affirmed the
decision of the Workers’ Compensation Judge (WCJ) to grant Pocono Services for
Families and Children’s (Employer) petition to modify compensation benefits.
Claimant contends substantial, competent evidence does not support modification of
her benefits. Specifically, she contends that Employer did not satisfy its statutory
burden of proving it did not have a position available for Claimant before relying on
an earning power assessment because the only evidence presented by Employer as
to job availability was inadmissible hearsay. Additionally, Claimant asserts the
opinion of the vocational expert was based entirely on hearsay evidence. For the
following reasons, we affirm.
I. BACKGROUND
Claimant worked for Employer as a preschool teacher until March 19, 2010,
when she suffered an injury to her left knee playing freeze tag with children at
Employer’s playground. A Notice of Compensation Payable (NCP) was
subsequently issued accepting the injury as a left knee strain/sprain. As a result of
litigation in 2014, the injury was subsequently amended to include a left knee
anterior cruciate ligament (ACL) tear. Following an Independent Medical
Examination (IME) conducted on April 8, 2016, Employer issued a Notice of Ability
to Return to Work on May 26, 2016. On January 12, 2017, Employer filed a
modification petition based on a labor market survey and earning power assessment
showing that vocationally and physically appropriate work was generally available
to Claimant. Thereafter, Claimant filed an answer, denying the averments in the
modification petition.
The matter was assigned to a WCJ who held hearings on the petition. In
support of its petition, Employer presented the deposition testimony of Ronald S.
Kushner (Vocational Expert), who conducted the labor market survey and earning
power assessment, and Lucian Bednarz, M.D., who performed the IME.
Vocational Expert testified as follows.1 He is certified by the Department of
Labor and Industry to perform earning power assessments and is certified as a
disability management specialist. On June 28, 2016, he personally met with
1
Vocational Expert’s testimony is summarized by the WCJ in finding of fact 5. The
entirety of Vocational Expert’s deposition testimony can be found in the reproduced record at
pages 145a-98a.
2
Claimant and her counsel to learn about Claimant’s previous job experiences and
education level. Vocational Expert contacted Employer and was told that no
modified or alternative duty work was available for Claimant. He obtained an
affidavit from Employer to that effect, which was introduced into evidence over
Claimant’s hearsay objection.2 Although Dr. Bednarz cleared Claimant to perform
light-duty work, all of the positions Vocational Expert identified were sedentary in
nature to make sure they fell within Claimant’s abilities.
Based on the interview with Claimant and the IME, Vocational Expert
identified four available jobs within Claimant’s physical and vocational capabilities.
These jobs include a customer service representative position at Wayne Bank; front
desk reservationist at Stroudsmoor Country Inn; customer care specialist at Blue
Ridge Communications; and dispatcher customer service operator at Altronics
Security Systems. Vocational Expert spoke to a manager at each of the prospective
employers to obtain information about the respective job duties; he did not
personally observe any of the positions, except the Stroudsmoor Country Inn
position, which he observed previously for another claimant. Vocational Expert
testified he customarily relies on information provided by employers and that he was
familiar with the employers he identified, as Vocational Expert had “worked this
general area” and “all over Pennsylvania” for 27 years. (Reproduced Record (R.R.)
at 172a, 174a.) Because Claimant held customer service type positions in the past,
Vocational Expert opined that those skills would be “relatable, transferrable.” (Id.
at 195a.) Vocational Expert submitted job descriptions for each of the positions to
2
The affidavit from Employer’s fiscal manager can be found in the reproduced record at
page 32a.
3
Dr. Bednarz, who approved each position.3 In addition, Vocational Expert sent
letters to Claimant advising her of the available positions.4 On cross-examination,
Vocational Expert admitted that he did not send Claimant the physical requirements
for each position. Vocational Expert concluded, based on the identified jobs, that
Claimant had an earning power between $360.00 and $468.75 per week, with an
average of $402.19 per week.5
Dr. Bednarz testified, in relevant part, as follows.6 Based upon his
examination and review of Claimant’s medical history and records, Dr. Bednarz
opined that Claimant’s injury resulted in permanent light-duty restrictions.
Specifically, Claimant could lift up to 20 pounds with frequent lifting up to 10
pounds, and in an 8-hour day, could stand/walk 1 to 4 hours, sit 5 to 8 hours, and
drive 1 to 3 hours. She could occasionally bend, squat, or navigate steps, but was
restricted from climbing or using ladders. Based upon his review of the job
descriptions for the four jobs Vocational Expert identified, Dr. Bednarz opined that
Claimant could perform all of those jobs.
Claimant testified in opposition to the modification petition. She testified, in
relevant part, as follows.7 Claimant has a bachelor’s degree in early childhood
education. She worked at a bank for approximately 6 months 20 years ago. Claimant
expressed concern with the position at Wayne Bank because of having to get up and
3
Copies of the approved job descriptions can be found in the reproduced record at pages
41a-48a.
4
Copies of the letters sent to Claimant can be found in the reproduced record at pages 33a-
39a.
5
Vocational Expert’s Earning Power Assessment Report can be found in the reproduced
record at pages 51a-55a.
6
Dr. Bednarz’s testimony is summarized by the WCJ in finding of fact 4. The entirety of
Dr. Bednarz’s deposition testimony can be found in the reproduced record at pages 88a-131a.
7
Claimant’s testimony is summarized in finding of fact 7. The entirety of Claimant’s
testimony before the WCJ can be found in the reproduced record at pages 266a-81a.
4
down, walking, and not knowing if she could prop her leg up, and because she
suffered a traumatic brain injury in the past that makes math and numbers difficult.
As for the position at Stroudsmoor Country Inn, Claimant was concerned with
moving back and forth, lifting, walking, and propping up her leg. She expressed
similar concerns about the Blue Ridge Communications and Altronics positions,
including that the Altronics position was night shift. Claimant testified that she has
ongoing problems with her leg and did not believe she could perform any of the
positions. She has not returned to work since her injury in 2010. On cross-
examination, Claimant admitted that she did not contact any of the prospective
employers for additional information or to apply. Claimant did not introduce any
medical or vocational evidence.
The WCJ found Dr. Bednarz’s testimony “uncontroverted” because Claimant
did not call any of her treating physicians to impeach his testimony. (WCJ Decision,
Finding of Fact (FOF) ¶ 8.) Accordingly, the WCJ accepted his testimony as
credible. The WCJ also accepted Vocational Expert’s testimony, which the WCJ
said was “carefully considered” in light of the fact that Vocational Expert did not
personally observe any of the open positions, which the WCJ found “somewhat
troubl[ing].” (Id. ¶ 9.) Despite this, the WCJ found Vocational Expert’s testimony
concerning the job descriptions credible. The WCJ noted that Claimant did not seek
to rebut Vocational Expert’s testimony that no work was available and Claimant
based her opinion that she could not perform the work “solely on her subjective ideas
of what the jobs entailed.” (Id.) The WCJ stated because Vocational Expert “is
presumably an expert,” his testimony was “more credible than Claimant[’s] when he
describes the jobs in question.” (Id.) Finally, the WCJ rejected Claimant’s
testimony as not credible based upon Claimant’s “bearing and demeanor.” (Id. ¶ 10.)
5
The WCJ noted Claimant neither applied for any of the positions nor visited any of
the job sites. The WCJ further noted that upon receipt of the notice of ability to
return to work, Claimant did not seek to find other employment.
Based upon the credited evidence, the WCJ found Claimant’s residual earning
power as of December 20, 2016, was $402.19 per week, and modified Claimant’s
benefits accordingly.
Claimant appealed to the Board, which affirmed. It held Employer met its
burden of proving it had no work available for Claimant and that Claimant had a
residual earning power of $402.19 per week. The Board rejected Claimant’s
assertion that Employer could not rely on an affidavit, which was hearsay, to
establish that it had no positions available. The Board explained that Rosenberg v.
Workers’ Compensation Appeal Board (Pike County), 942 A.2d 245 (Pa. Cmwlth.
2008), upon which Claimant relied, was clarified by Vernille v. Workers’
Compensation Appeal Board (Meadville Lodge, 219 BPOE) (Pa. Cmwlth., No. 489
C.D. 2012, filed October 1, 2012),8 where we held an employer does not need “to
prove [a] negative[,] []i.e., that it does not have a job available[].” (Board Opinion
at 7.) Instead, an employer has the burden of proof only if the claimant raises,
through evidence, a possible open position. (Id. at 8.) The Board explained
“[Employer] . . . presented evidence (albeit hearsay) that it did not have a job
available for Claimant, but Claimant did not present any evidence of [her] own to
contradict that position,” whereas the claimant in Rosenberg did present such
evidence. (Id.) The remaining issues, the Board stated, were “an attack on
credibility determinations and assignment of weight to the evidence of record,
8
Pursuant to Rule 126(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P.
126(b) and Section 414(a) of the Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a),
unreported panel decisions of this Court may be cited for their persuasive value.
6
[which w]as not [its] role to second guess.” (Id.) The Board found “[t]he WCJ was
correct in his conclusion that the testimony of [Vocational Expert] was the type
normally given by a vocational expert during the course of his testimony and not
mere hearsay as asserted by Claimant.” (Id.) The Board concluded that “Claimant’s
discontent with the outcome of the case [was] not a basis for [it] to disturb the WCJ’s
Decision and Order, and [it would] not do so here.” (Id.)
II. PARTIES’ ARGUMENTS
On appeal to this Court,9 Claimant argues the same issues she raised to the
Board: (1) whether Employer met its burden of showing that it had no in-house
positions available to offer Claimant when the only evidence presented was hearsay
evidence in the form of an affidavit from Employer introduced through Vocational
Expert; and (2) whether Vocational Expert’s testimony was incompetent because he
relied entirely on hearsay evidence to form his opinion. Claimant argues that
Employer needs to establish there is no suitable work available with Employer
before it can move forward with an earning power assessment. Here, the only
evidence to that effect was the affidavit of Employer’s fiscal manager, who stated
no positions were available, which Claimant asserts was inadmissible hearsay.
Although Claimant objected to the admission of the affidavit, Claimant states the
WCJ overruled the objection on the basis that the evidence was of the type
reasonably relied upon by vocational counselors. Claimant argues this was error
because vocational counselors, such as Vocational Expert, are not required to
9
This Court’s scope of review in workers’ compensation appeals “is limited to determining
whether necessary findings of fact are supported by substantial evidence, whether an error of law
was committed, or whether constitutional rights were violated.” Elberson v. Workers’ Comp.
Appeal Bd. (Elwyn, Inc.), 936 A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007).
7
consider whether positions are available with an employer; thus, it is not the type
reasonably relied upon by vocational counselors because there is no requirement that
they actually consider it. Claimant asserts the burden to show the existence of work
only shifts once Employer presents evidence there is none available, which did not
occur here.
Claimant further argues that the Board wrongfully interpreted Rosenberg,
Vernille is distinguishable, and the Board’s regulations would be rendered moot if
the Board’s interpretation was accepted. According to Claimant, Rosenberg still
requires an employer to meet its initial burden unless a claimant obtained other
employment or demonstrated residual skills, of which there is no evidence here.
Claimant argues Vernille is distinguishable because there the claimant asserted there
were job openings with the employer, which was rejected as insufficient. Claimant
also asserts that Vernille involved testimonial evidence, whereas here, the evidence
was via an affidavit, which Claimant could not challenge given the way it was
introduced through Vocational Expert. Claimant further asserts that the Board’s
interpretation related to the burden of proof conflicts with the plain language of 34
Pa. Code § 123.301, which places the burden on an employer to offer a claimant an
open position and explains how an employer can satisfy this burden and how a
claimant can rebut it.
Claimant also argues that the labor market survey and earning power
assessment performed by Vocational Expert is “suspect at best,” (Claimant’s Brief
(Br.) at 19), because Vocational Expert relied entirely on hearsay. Claimant
disagrees with the WCJ and Board that this was the type of information reasonably
relied upon by vocational experts. Claimant cites Edwards v. Workers’
Compensation Appeal Board (MPW Industrial Services, Inc.), 858 A.2d 648 (Pa.
8
Cmwlth. 2004), and asserts Vocational Expert could rely on hearsay for availability,
hours, and wages, but not for duties performed. Claimant further asserts that
Vocational Expert assumed the information he was given by the prospective
employers was accurate and made no attempt to verify it. Similar to IME doctors,
Claimant asserts a Vocational Expert cannot simply rely upon information provided
by others to form an opinion. This is just “regurgitating information,” which is not
an expert opinion. (Claimant’s Br. at 34.)
Employer responds that Vernille does not require an employer to prove a
negative; instead, an employer only has to offer a claimant a position if the employer
has one available. Employer explains that the WCJ considered Claimant’s hearsay
objection and overruled it on the basis that the information was of the type
reasonably relied upon by vocational experts. Employer further notes that there is
no evidence of record to contradict the affidavit, which distinguishes this case from
Rosenberg, in which the claimant testified there was a position available with the
employer. Employer points out that Claimant presented no evidence in opposition
to the modification petition and is simply attempting to attack the WCJ’s credibility
determinations that, on appeal, cannot be disturbed. Employer asks the Court to
affirm the Board’s Order, affirming the WCJ’s Decision.
III. ANALYSIS
A. Burden of Proof
We first address Claimant’s argument that Employer’s modification petition
should be denied because Employer failed to prove that it did not have an available
job within itself suitable for Claimant. Claimant contends that Employer has a
statutory burden to prove the nonexistence of an available suitable job for Claimant
9
before it can rely on an earning power assessment or labor market survey. Claimant
argues Employer did not meet that burden here because the only evidence that
Employer did not have an available position was an affidavit from Employer,
introduced through Vocational Expert. This affidavit is insufficient, Claimant
contends, because it constitutes impermissible hearsay.
Pursuant to Section 306(b)(2) of the Workers’ Compensation Act10 (Act), if a
claimant receiving Workers’ Compensation (WC) benefits is able to participate in
substantial gainful employment and “the employer has a specific job vacancy the
[claimant] is capable of performing, the employer shall offer such job to the
[claimant].” 77 P.S. § 512(2) (emphasis added); see also 34 Pa. Code § 123.301(a).
Regulations provide that an employer can satisfy this duty by showing:
(1) The employee was notified of a job vacancy and failed to respond.
(2) A specific job vacancy was offered to the employee, which the
employee refused.
(3) The employer offered a modified job to the employee, which the
employee refused.
(4) No job vacancy exists within the usual employment area.
34 Pa. Code § 123.301(c). The regulation further provides:
If the employer has presented evidence that no job vacancy exists, the
employee may rebut the employer’s evidence by demonstrating facts
which may include the following:
(1) During the period in which the employer has or had a duty to
offer a specific job, the employer is or was actively recruiting for a
specific job vacancy that the employee is capable of performing.
10
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 512(2). Section 306(b)(2) was
added by Section 4 of the Act of June 24, 1996, P.L. 350.
10
(2) During the period in which the employer has or had a duty to
offer a specific job, the employer posted or announced the existence of
a specific job vacancy, that the employee is capable of performing,
which the employer intends to fill.
34 Pa. Code § 123.301(f).
The Act and applicable regulations are silent as to whether the burden of proof
in a modification petition first lies with an employer to prove the nonexistence of an
available in-house job suitable for claimant, or with the claimant to prove employer
does have such a job. This Court first addressed this issue in Burrell v. Workers’
Compensation Appeal Board (Philadelphia Gas Works and Compservices, Inc.),
849 A.2d 1282 (Pa. Cmwlth. 2004). There, we stated:
Neither the express language of Section 306(b)(2) 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 non-existence of such a position. Nor
does the statute preclude a claimant from proving the existence of such
a position as a defense to modification.
Id. at 1287. However, there, the Court did not have to reach the issue of whether the
employer had such a position because the claimant “unilaterally demonstrate[d]
residual productive skill” by working another job. Id.
We again faced the question of what an employer’s burden was related to the
availability of a light-duty position in Rosenberg. There, the claimant provided
uncontradicted evidence that a specific job within her capabilities existed with the
employer after the claimant received a notice of ability to return to work and before
the employer filed its modification petition. Specifically, the claimant actually
worked for the employer in a light-duty position until the employer terminated the
claimant’s employment, stating it did not have a provision for permanent light-duty
11
work. The employer subsequently hired a new employee to fill the position in which
the claimant had been working. We again noted that the Act was silent as to the
presentation of evidence, but we were “mindful that the burden of proof may be
placed on a party who must prove existence of a fact rather than on a party who must
prove its non-existence.” Rosenberg, 942 A.2d at 251. This Court held that “once
the issue is raised by evidence of a possible opening with employer, the employer
has the burden of proof.” Id. (emphasis added). Because the claimant provided
evidence that a suitable job with her employer was available, the Court found that
the burden had shifted to the employer to prove that no such job existed and
remanded the case accordingly. Id. at 252.
We reiterated this holding in Reichert v. Workers’ Compensation Appeal
Board (Dollar Tree Stores), wherein we summarized the holding in Rosenberg, as
follows:
[A]n employer does not have the burden to prove the non-existence of
available work at its own facility as a necessary element of the
modification petition. Rather, a claimant may present evidence that
[d]uring the period in which the employer . . . had a duty to offer a
specific job, the employer had a specific job vacancy that it intended to
fill that the claimant was capable of performing. The burden then shifts
to the employer to rebut the claimant’s evidence.
80 A.3d 824, 829-30 (Pa. Cmwlth. 2013) (citations and quotation marks omitted).
In that case, we found the claimant did not present evidence that the employer was
actively recruiting for a specific job vacancy or that the employer had posted the
existence of a specific vacancy. Id. at 830. The only evidence of job vacancies was
presented by the claimant’s vocational expert, who testified that employer was
recruiting for various positions through its website. However, his testimony was not
12
credited by the WCJ because he visited the website after the modification petition
was filed. Id.
Our holding in Reichert was similar to our holding in Vernille, the case upon
which the Board relied in affirming the WCJ’s Decision here. In Vernille, the
claimant challenged the Board’s decision affirming a WCJ’s decision granting the
employer’s modification petition, asserting that the employer did not meet its burden
of proving it did not have a position available within the claimant’s restrictions. The
claimant in Vernille testified that he “believed” the employer had work available but
presented no evidence to this effect. Vernille, slip op. at 3. Because the claimant
did not bring forth evidence to support his assertion that the employer had available
positions, the Court held that the burden never shifted to the employer to prove the
nonexistence of a position. Id.
Unlike Reichert, Rosenberg, or Vernille, Claimant, here, presented no
evidence of a specific job opening with Employer between the filing of the Notice
of Ability to Return to Work and Employer’s modification petition. Claimant did
not even suggest this was the case or testify that she believed this to be so. As we
held time and time again, absent some evidence that an employer has an open and
available position within the claimant’s work restrictions, an employer does not need
to prove it does not have such a position available. Reichert, 80 A.3d at 829-30;
Vernille, slip op. at 3; Rosenberg, 942 A.2d at 251. Therefore, the Board was correct
in its holding.11
11
Because Employer did not have the burden to show the nonexistence of a suitable
position, we need not decide whether it was error to consider the affidavit of Employer’s fiscal
manager on the basis it was hearsay. We note, however, that in Ricci v. Workers’ Compensation
Appeal Board (MMI Electrical Contractors) (Pa. Cmwlth., No. 1253 C.D. 2012, filed January 24,
2013), slip op. at 3 n.2, a vocational expert’s testimony that the employer told him it had no
available positions to offer the claimant was admissible, despite being hearsay, because it was the
type of information reasonably relied upon by such experts.
13
B. Vocational Expert’s Opinion
We next address Claimant’s argument that the Board erred in affirming the
WCJ’s grant of Employer’s modification petition because Employer failed to present
competent evidence. Section 306(b)(2) of the Act allows for modification of
benefits based on a claimant’s earning power. 77 P.S. § 512(2). “‘Earning power’
shall be determined by the work the [claimant] is capable of performing and shall be
based upon expert opinion evidence which includes job listings with agencies of the
department, private job placement agencies and advertisements in the usual
employment area.” Id.
Here, Employer provided the testimony of Vocational Expert who opined that
Claimant had an earning power of between $360.00 and $468.75 per week. The
WCJ specifically credited Vocational Expert’s testimony and Dr. Bednarz’s
testimony, both of which were uncontradicted. Claimant, however, argues that
Vocational Expert’s opinion is defective because it was based solely on inadmissible
hearsay. More specifically, Claimant attacks Vocational Expert’s failure to
personally observe any of the identified positions and instead relies on what
Vocational Expert was told when he called the prospective employers. According
to Claimant, Vocational Expert could rely on what he was told for availability, hours,
and wages, but not job duties, which Vocational Expert did here.
In support of this position, Claimant cites Edwards. In that case, the claimant
challenged the testimony of a vocational counselor who relied on information he was
provided by the prospective employers related to availability, hours, and wages. We
held that such information was permitted under Rule 703 of the Pennsylvania Rules
of Evidence, Pa.R.E. 703. Edwards, 858 A.2d at 651. Rule 703 provides, in
pertinent part: “If experts in a particular field would reasonably rely on those kinds
14
of facts or data in forming an opinion on the subject, they need not be admissible for
the opinion to be admitted.” Pa.R.E. 703. Because vocational experts rely on
information from physicians related to a claimant’s capabilities and limitations, on
claimants for their education and work experience, and on information obtained from
employers regarding particular jobs, we held the vocational counselor could rely on
this information to form his opinion. Edwards, 858 A.2d at 651. We further noted
that the vocational counselor observed the duties firsthand. Id. at 652.
Although the vocational counselor personally observed the positions in
Edwards, the failure to do so is not fatal to a vocational expert’s opinion nor does it
limit the vocational expert’s opinion to availability, hours, and wages. In Acme
Markets, Inc. v. Workmen’s Compensation Appeal Board (Pilvalis), 597 A.2d 294
(Pa. Cmwlth. 1991), the claimant objected to a vocational expert’s testimony as to
specific job duties. We noted that information obtained through personal
observation was not hearsay and that “the testimony of the expert, although based
upon data not admissible in evidence, is legally competent if that data is of the type
reasonably relied on by an expert in the particular field in forming an opinion on the
subject.” Id. at 298 n.3.
The Supreme Court recognized this approach in Joyce v. Workmen’s
Compensation Appeal Board (Ogden/Allied Maintenance), wherein, citing Acme
Markets, it stated:
To the extent that this testimony was based on hearsay, it was
nevertheless admissible because it was the type of information
reasonably relied on by an expert in the field in forming an opinion. . . .
A vocational counselor acquires job descriptions and information about
job availability from prospective employers and relies on this
information in making job referrals.
705 A.2d 417, 418 n.3 (Pa. 1997).
15
More recently, this Court reaffirmed that “[v]ocational counselors speak to
prospective employers and obtain job descriptions to determine job availability.”
Pocono Mountain Sch. Dist. v. Workers’ Comp. Appeal Bd. (Willette) (Pa. Cmwlth.,
No. 1786 C.D. 2014, filed July 8, 2015), slip op. at 21. Thus, we rejected a
claimant’s argument that the vocational expert’s testimony was inadmissible as
hearsay and insufficient to support the WCJ’s findings. Id. We held that “[a]lthough
the job descriptions and [the vocational expert]’s discussions with potential
employers may have attributes of hearsay, they are admissible” since they are of the
type reasonably relied upon by experts in that field. Id.12
Here, Vocational Expert testified that he did not personally observe any of the
positions, except the Stroudsmoor Country Inn position, which he previously
observed. Instead, Vocational Expert testified he called and spoke to a manager at
each of the prospective employers to obtain information about the respective job
duties. (R.R. at 168a, 185a, 188a-89a, 192a, 196a.) Vocational Expert further
testified that he customarily relies on information provided by employers and that
he was familiar with the employers he identified having “worked this general area”
and “all over Pennsylvania” for 27 years. (Id. at 172a, 174a.) The WCJ credited
this testimony. It is well established that credibility determinations in workers’
compensation matters are within the discretion of the WCJ, not the Board or this
Court. Vols v. Workmen’s Comp. Appeal Bd. (Alperin, Inc.), 637 A.2d 711, 714 (Pa.
Cmwlth. 1994). Because this testimony was legally competent as information
12
However, when a vocational expert seeks to testify as to whether a claimant has followed
up on an employment opportunity, we have held what a vocational expert has been told by a
prospective employer related to a claimant applying for a particular job is not the type of
information reasonably relied upon by a vocational expert and is inadmissible hearsay. Pizor v.
Workmen’s Comp. Appeal Bd. (Frankford Quaker Grocery Co.), 650 A.2d 1210, 1212 (Pa.
Cmwlth. 1994).
16
reasonably relied upon by vocational experts, Joyce, 705 A.2d at 418 n.3; Acme
Markets, 597 A.2d. at 298 n.3; Pa.R.E. 703, and it provides substantial evidence to
support the conclusion that Claimant is capable of earning, on average, $402.19 per
week, the Board properly affirmed the WCJ’s Decision.
IV. CONCLUSION
As Employer was not required to demonstrate that it did not have any
positions available within Claimant’s restrictions and Vocational Expert’s opinion
was based upon information reasonably relied upon by others in that field, we
discern no error in the Board’s Order. Accordingly, we affirm.
_____________________________________
RENÉE COHN JUBELIRER, Judge
Judge Fizzano Cannon did not participate in this decision.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carolann Romano, :
Petitioner :
:
v. : No. 828 C.D. 2019
:
Workers’ Compensation Appeal :
Board (Pocono Services for Families :
and Children), :
Respondent :
ORDER
NOW, February 21, 2020, the Order of the Workers’ Compensation Appeal
Board dated June 12, 2019, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge