Allegheny Ludlum Steel Corp. v. Workers' Compensation Appeal Board

806 A.2d 508, 2002 Pa. Commw. LEXIS 788
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 5, 2002
StatusPublished
Cited by1 cases

This text of 806 A.2d 508 (Allegheny Ludlum Steel Corp. v. Workers' Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allegheny Ludlum Steel Corp. v. Workers' Compensation Appeal Board, 806 A.2d 508, 2002 Pa. Commw. LEXIS 788 (Pa. Ct. App. 2002).

Opinion

OPINION BY

Judge PELLEGRINI.

Allegheny Ludlum Steel Corporation (Employer) appeals from a decision of the Workers’ Compensation Appeal Board (Board) reversing the Workers’ Compensation Judge’s (WCJ) decision granting its petition to modify the compensation benefits of David Evans (Claimant) under the Workers’ Compensation Act (Act).1

[509]*509On December 26, 1997, Claimant, a machinist for Employer, injured his left shoulder at work when he lost his balance coming down stairs and grabbed a banister. A notice of compensation payable was issued, and Claimant began receiving benefits on March 6,1998, when he underwent surgery on his shoulder. On December 3, 1998, Employer filed a modification petition alleging that as of November 16, 1998, a job had been offered to Claimant that was within the medically imposed restrictions.

In support of its petition, Michael Volpe (Volpe), Employer’s safety supervisor and administrator of the workers’ compensation program, testified that he received medical reports concerning Claimant’s condition. He then sent Claimant a letter dated November 11, 1998, offering Claimant a position in the “light-duty crew,” and that this position would accommodate the work restrictions due to his injury placed on him by Graham F. Johnstone, M.D. (Dr. Johnstone), his treating physician. Volpe provided a one-page summary by Dr. Johnstone outlining those work restrictions.2 Volpe testified that the position offered to Claimant was a “rehab laborer” position that was indicated in the letter as job class 2, day shift work, and that Claimant never returned to work after the November 11,1998 letter. On cross-examination, Volpe testified that he didn’t specify a particular job or a particular department in his November 11, 1998 letter, but that Claimant would have been assigned to the light-duty department and would have done whatever jobs were available on that particular week.

Employer presented the expert medical testimony of Dr. Johnstone and Jon B. Tucker, M.D. (Dr. Tucker), both board-certified in orthopedic surgery. Dr. John-stone testified that he treated Claimant for his right shoulder injury and performed arthroscopic surgery on March 6, 1998, and that Claimant’s recovery progression was slow. Dr. Johnstone testified that another arthroscopic surgery was performed on April 2, 1999, and that after physical therapy, Claimant could return to work in a light-duty capacity. Dr. Tucker testified that he saw Claimant on one occasion on September 29,1998, and found that Claimant had work-related residual shoulder impingement syndrome, and that non-work-related underlying neurologic condition contributed in delaying recovery, but that Claimant would be capable of returning to work with light-duty limitations.

In opposition, Claimant testified that he continued working until February 26,1998, that he underwent arthroscopic surgery on his right shoulder but was unable to return to his job as a machinist due to constant pain and a decreased range of motion. Claimant also testified that he was also being treated for pulmonary problems and had difficulty with motor functions in his legs, but that these conditions were not related to the work-related injury and that he suffered from a non-work-related left shoulder injury with severely limited motion. He also acknowledged that he received a letter dated November 11, 1998, [510]*510from Volpe regarding his return to work, but that he did not return to work following the letter because he had never performed light-duty work for Employer.

Claimant also presented the testimony of Walter James Hill (Hill), a grievance representative for the union bargaining unit, who testified that the light-duty agreement with Employer in place since 1970 provided that when employees returned to work after having been injured but had not fully recovered so as to be able to return to their prior position, they worked in the “light-duty crew” — usually in the janitorial department. Hill testified that after receiving the return to work letter, Claimant came to see him and Hill called Volpe to discuss the letter. Hill testified that he had several conversations with Volpe and asked him what job was being offered to Claimant but Volpe only responded by saying that they would find a job for Claimant. On cross-examination, Hill testified that it was his understanding that an effort was made to bring people back to the department that they previously had worked in if that was possible.

Finding the testimony of Dr. Johnstone, Dr. Tucker and Volpe credible and rejecting the testimony of Claimant and Hill that was in conflict with the accepted testimony and finding that “the claimant was properly notified by the November 11,1998 letter of specific work being available to him within the restrictions of Dr. Johnstone for which the claimant, in bad faith, has not accepted,” the WCJ granted the modification petition. Claimant appealed to the Board. Concluding that an appropriate position had not been offered to Claimant because the November 11, 1998 letter did not provide sufficient notice because it lacked a description of the duties of the job, the Board reversed the WCJ. This appeal followed.3

Employer now contends that the Board erred in reversing the WCJ’s decision because the referral letter does not have to contain information relating to job duties as long as the employee can make an informed decision regarding whether the position comports with his medical restrictions. It argues that because the light-duty agreement with Claimant’s unit specified that Claimant would work in the “light-duty crew” and because Hill, acting as Claimant’s labor representative, had numerous discussions regarding the available job, Claimant was fully informed that the job would be within his physical limitations.

Under the test enunciated in Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987), for a claimant’s benefits to be modified because suitable alternative employment was offered, the following four prongs must be met:

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).
[511]*5114. If the referral fails to result in a job then claimant’s benefits should continue.

Id. at 252, 532 A.2d at 380. The only issue involved in this case is whether the second prong of this test has been met; specifically whether the description of the work Claimant was going to be performing that was identified in the November 11, 1998 letter was sufficient to provide him with notice of an open job within his medical clearance.

Our Supreme Court has recently expounded upon the requirements of this second prong in Eidem v. Workers’ Compensation Appeal Board (Gnaden-Huetten Memorial Hospital), 560 Pa.

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Bluebook (online)
806 A.2d 508, 2002 Pa. Commw. LEXIS 788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allegheny-ludlum-steel-corp-v-workers-compensation-appeal-board-pacommwct-2002.