Acme Markets, Inc. v. WORKMEN'S COMPENSATION APPEAL BOARD (ANNETTE PILVALIS)

597 A.2d 294, 142 Pa. Commw. 400, 1991 Pa. Commw. LEXIS 514

• Court: Commonwealth Court of Pennsylvania
• Decided: September 16, 1991
• Docket: 1803 C.D. 1990
• Status: Published

Opinions

DOYLE, Judge.

This is an appeal by Acme Markets Inc. (Employer) from an order of the Workmen’s Compensation Appeal Board (Board) which affirmed the decision of a referee¹ denying the petition of Employer to modify/terminate benefits to Annette Pilvalis (Claimant).

The referee found that Claimant had been employed by Employer as a checker when, on January 15, 1981, she suffered a fracture to her ankle. She received compensation for total disability for this injury. Thereafter she attempted to return to work on several occasions, but always without success. The referee specifically found that as a complication of her work-related injury Claimant developed phlebitis and is subject to recurring bouts of that disease. He also found that she is unable to return to her time-of-injury job because extended periods of standing cause her pain and extended periods of sitting will predispose her to phlebitis.

Employer presented the medical testimony of two doctors one of whom was Claimant’s own treating physician. Claimant presented no evidence. Dr. Sgarlat opined that Claimant could “perform a job which would involve sitting or standing on an alternative basis, not necessarily 50/50, but the job should permit her to get off of her feet occasionally after an hour or so” (Referee’s finding of fact 5). Dr. Sgarlat also stated, and the referee so found, that Claimant could stand or walk four to six hours per day and sit five to eight.

The referee also credited the testimony of Dr. Blum, Claimant’s treating physician, and found that, according to him, Claimant could “perform any job which involved mostly sitting or which involved relatively brief periods of standing after which she could sit down” (Referee’s finding of fact 6).

Employer additionally presented the testimony of a vocational expert regarding six positions to which Employer had referred Claimant. This witness, Robert Ozovek, visited each of the job sites and observed the duties of each position for approximately thirty to sixty minutes. He did not observe a full work day at any site and stated that all information for the job descriptions that he had prepared was given to him by the prospective employers. Every one of the six jobs was approved by both of the doctors. Nonetheless, the referee found that none of the jobs was available to Claimant because “none provided the option of alternating positions between sitting and standing.” Referee’s finding of fact 9 of April 9, 1990. He also found:

[T]he jobs, as offered, do not provide nor do they comply with the restrictions and limitations imposed by either Dr. Sgarlat and/or Dr. Blum. All of the jobs, in some manner, meet either the requirements and/or limitations of Dr. Blum or Dr. Sgarlat but not in their totality and, thus, we reject the jobs as not being consistent with the limitations as imposed by both physicians.

Referee’s finding of fact 10 of April 9, 1990.

Concluding that Employer had failed in its burden to show job availability, the referee denied its petition. On appeal the Board viewed the issue as one involving merely a credibility determination by the referee and affirmed. It stated, “The Referee rejected the credibility of the Doctors’ testimony as it related to Claimant’s ability to perform the available jobs, finding that none of the available jobs were within the limitations imposed by the Doctors.”

We observe that where, as here, the party with the burden of proof was the only party who presented evidence, and failed to prevail below, the relevant inquiry is whether the fact finder capriciously disregarded competent evidence. Russell v. Workmen’s Compensation Appeal Board (Volkswagen of America), 121 Pa.Commonwealth Ct. 436, 550 A.2d 1364 (1988); Kirkwood v. Unemployment Compensation Board of Review, 106 Pa.Commonwealth Ct. 92, 525 A.2d 841 (1987), and, the capricious disregard of competent evidence is the willful, deliberate disbelief of an apparently trustworthy witness, whose testimony one has no basis to challenge. Arena v. Packaging Systems Corp., 510 Pa. 34, 507 A.2d 18 (1986).

Employer asserts that the referee did capriciously disregard competent evidence when he rejected uncontradicted medical evidence concluding that Claimant was able to perform the six available jobs.² We are constrained to agree. Although generally a referee may disregard the testimony of any witness, even though the testimony is uncontradicted, Butler v. Workmen’s Compensation Appeal Board (Commercial Laundry, Inc.), 67 Pa.Commonwealth Ct. 393, 447 A.2d 683 (1982), he does not have the discretion to capriciously disregard competent evidence without a reasonable explanation or without specifically discrediting it. Farquhar v. Workmen’s Compensation Appeal Board (Corning Glass Works), 515 Pa. 315, 528 A.2d 580 (1987); Russell. In Farquhar, our Supreme Court, quoting with approval the words of Justice Hutchinson in Jasper v. Workmen’s Compensation Appeal Board, 498 Pa. 263, 445 A.2d 1212 (1982), stated:

Previous cases have set forth the scope of review where, as here, the fact finder’s decision is against the party having the burden of proof in terms such as ‘capricious disregard of competent evidence’, Barrett v. Otis Elevator Co., 431 Pa. 446, 246 A.2d 668 (1968), ‘willful disbelief of otherwise credible evidence’, Bullock v. Building Maintenance Inc., 6 Pa.Commonwealth Ct. 539, 297 A.2d 520 (1972)____ At the very least the findings and conclusions of the fact finder must have a rational basis in the evidence of record and demonstrate an appreciation and correct application of underlying principles of substantive law to that evidence. (Emphasis in original.)

Id. 515 Pa. at 324, 528 A.2d at 584-85. When a referee rejects uncontradicted evidence and makes findings or conelusions which have no rational basis in the evidence of record, that referee capriciously disregards competent evidence. Farquhar. Simply stated, a referee may not “reject ” credible and uncontradicted medical evidence without explaining why the evidence is “rejected”. Farquhar.

In the present case, both physicians testified that they reviewed all six available jobs and determined that Claimant was medically able to perform the duties demanded by all the jobs. The pertinent findings are as follows:

5. The Defendant presented the testimony of Dr. Joseph Sgarlat, who examined the Claimant on March 24, 1986____ Dr. Sgarlat approved various positions for the Claimant which has been previously located for her. Dr. Sgarlat testified that each of the jobs would be within her physical restrictions.

6. The Defendant further presented the testimony of Robert Ozovek of Vocational Rehabilitation Services, regarding six positions that he had referred to the Claimant. Mr. Ozovek testified as an expert witness, that all of the jobs were within the vocational capabilities of this Claimant. The Referee, however, finds that factually these jobs did not meet all of Dr. Sgarlat’s requirements or of Dr. Richard Blum, who was treating the patient, but had initially examined her on behalf of the Defendant____ Doctor [Blum] reviewed each of the positions which were presented and approved them. Again, as with Dr. Sgarlat, the jobs did not fit their own limitations.

10. The Referee finds that the jobs, as offered, do not provide nor do they comply with the restrictions and limitations imposed by either Dr. Sgarlat and/or Dr. Blum. All of the jobs, in some manner, meet either the requirements and/or limitations of Dr. Blum or Dr. Sgarlat but not in their totality and, thus, we reject the jobs as not being consistent with the limitations as imposed by both physicians. (Emphasis added.)

Simply put, the referee, in finding that the jobs do not comply with the limitations imposed by the two physicians when both physicians testified that the jobs do comply, appears to have extracted the medical analysis from the Doctors’ testimony and, applying that analysis to the duties of the available jobs, concluded that Claimant was not medically able to perform the jobs. We have reviewed the entire record and are constrained to hold that in light of the medical testimony of Dr. Sgarlat and Dr. Blum the referee could not have reached the conclusion that Claimant was unable to perform the available jobs in direct contradiction to what they, themselves, opined. Both doctors stated categorically and without contradiction, after reviewing the work entailed in the performance of the six positions, that Claimant could perform the tasks; yet, the referee, without explanation, found that Claimant could not perform any one of them. Therefore, because the referee’s finding has no rational basis in the evidence of record, the referee erred by capriciously disregarding competent evidence. Farquhar.

The test an employer must meet to demonstrate job availability has been set forth by our Supreme Court in Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987). The Kachinski Court wrote:

1. The employer who seeks to modify a claimant’s benefits on the basis that he has recovered some or all of his ability must first produce medical evidence of a change in condition.

2. The employer must then produce evidence of a referral (or referrals) to a then open job (or jobs), which fits in the occupational category for which the claimant has been given medical clearance, e.g., light work, sedentary work, etc.

3. The claimant must then demonstrate that he has in good faith followed through on the job referral(s).

4. If the referral fails to result in a job then claimant’s benefits should continue.

Id., 516 Pa. at 252, 532 A.2d at 380.

Employer in this instance met its burden. The focus is on prong two of the Kachinski test, specifically centering on whether the job referrals fit the occupational category. Kachinski itself dealt primarily with the question of whether a job must be potentially available to the claimant or actually available. In Farkaly v. Workmen’s Compensation Appeal Board (Baltimore Life Insurance Co.), 516 Pa. 256, 532 A.2d 382 (1987), the Supreme Court stated that an employer meets its burden of providing sufficient evidence that a job is suitable for a claimant if the employer produces medical evidence describing the claimant’s capabilities and vocational evidence classifying and describing the job. A hypertechnical analysis of the jobs in question matching every medical restriction to all the duties of the available job is not required. Id.

Despite the Supreme Court’s holding that an employer need not match every individual medical restriction to every one of the job duties in a proffered position, we believe that the referee and Board imposed precisely that duty on Employer here. First it must be stressed, contrary to the Board’s belief, that the referee never rejected the testimony of either doctor or the vocational expert on credibility grounds. Instead, he faulted Employer’s vocational expert for not observing each potential job for an entire work day and for gathering information about the job duties from the potential employers rather than solely by his own observation. Such stringent evidentiary requirements have no basis in caselaw, fly directly in the face of Farkaly, and in our view constitute legal error. Further, the referee was troubled by the fact that in no job description was it specifically indicated that Claimant could stand or sit at her option. Our Supreme Court clearly stated that:

[I]n Kachinski we rejected the Commonwealth Court’s approach of requiring the employer to specifically detail every aspect of a job before it can be considered within the capability of the claimant.

Farkaly, 516 Pa. at 259, 532 A.2d at 383. Moreover, since both medical experts concluded that the jobs offered by Employer were within the capabilities of Claimant, it was unnecessary for the referee to engage in a detailed analysis of the job duties and medical restrictions in order to determine if the Claimant could perform the jobs.

We thus conclude that under Farkaly and Kachinski, Employer met its burden as a matter of law. And, inasmuch as it is undisputed that Claimant did not follow up on any of the referrals, Employer is entitled to prevail on its petition. Kachinski.

We reverse the Board’s order and remand for modification of benefits.³

ORDER

NOW, September 16, 1991, the order of the Workmen’s Compensation Appeal Board in the above-captioned matter is hereby reversed and the case is remanded for modification of benefits.

Jurisdiction relinquished.

Dissenting opinion by BARRY, Senior Judge.

1 . There had been an initial decision by the referee denying Employer’s petition. On appeal the Board vacated and remanded for clarification because testimony on the issue of job availability was uncontradicted and yet the referee, without making any specific credibility determinations, appeared to reject it. Our references are to the adjudication after remand.

2 . Employer asserts that the Board abused its discretion by holding that the referee’s factual and legal errors were harmless. Legal errors are also within our purview to review. Russell. Contrary to Claimant's assertion, we believe this issue has been properly raised and preserved, although a bit inartfully.

3 . It has not escaped our notice that Claimant’s counsel objected on the basis of hearsay to the vocational expert’s testimony as to specific job duties. First, to the extent that the expert’s information was gained by personal observation it is not hearsay. Second, 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. Reams by Kearns v. DeHaas, 377 Pa.Superior Ct. 200, 546 A.2d 1226 (1988), petition for allowance of appeal denied, 522 Pa. 584, 559 A.2d 527 (1989).