Blakeslee Aluminum, Inc. v. Workers' Compensation Appeal Board

740 A.2d 1213, 1999 Pa. Commw. LEXIS 872
CourtCommonwealth Court of Pennsylvania
DecidedNovember 18, 1999
StatusPublished
Cited by1 cases

This text of 740 A.2d 1213 (Blakeslee Aluminum, Inc. 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
Blakeslee Aluminum, Inc. v. Workers' Compensation Appeal Board, 740 A.2d 1213, 1999 Pa. Commw. LEXIS 872 (Pa. Ct. App. 1999).

Opinion

McGINLEY, Judge.

Blakeslee Aluminum, Ind. (Employer) petitions for review of the order of the Workers’ Compensation Appeal Board (Board) that reversed the decision of the Workers’ Compensation Judge (WCJ) that granted Employer’s petition to modify Frank Kotula’s (Claimant) benefits.

Employer employed Claimant as a production supervisor for its home improvement business. In approximately June 1991, Claimant invested $20,000 with Employer and received forty shares of nonvoting stock. On October 4, 1991, Claimant sustained a work-related neck injury in an automobile accident. Employer issued a notice of compensation payable and agreed to pay Claimant $436 per week based on an average weekly wage of $738.

On May 12, 1995, Employer petitioned to modify Claimant’s benefits and alleged that Claimant failed to make a good faith effort to follow through on available work.

Rocco Testa (Testa), president of Em-, ployer, stated before the WCJ that Employer referred two jobs to Claimant: gutter helper1 and assistant production supervisor (Job). Testa characterized the Job as primarily office work, although Claimant would be expected to help unload trucks making deliveries if he were capable. Notes of Testimony, August 29, 1995, at 12-14.

. Employer presented the deposition testimony of Patrick J. Fricchione, M.D. (Dr. Fricchione), board-certified in emergency medicine. Dr. Fricchione examined Claimant on February 1, 1995. Dr. Fricchione diagnosed Claimant with chronic paracer-vical pain due to minor irritation or inflammation of the muscles and connective tissues surrounding the muscles along the side of the lower portion of the neck. Deposition of Patrick J. Fricchione, M.D., September 1, 1995, (Dr. Fricchione Deposition) at 20; Reproduced Record (R.R.) at 177a. Dr. Fricchione testified that Claimant was capable of performing a medium duty job with limitations on repetitive lifting at shoulder height, pushing and pulling. He approved Claimant for the Job. Dr. Fricchione Deposition at 23, 30; R.R. at 180a, 187 a.

Employer also presented the deposition testimony of Karen Van Hoesen (Van Hoe-sen), vocational counselor for Keystone Rehabilitation. Van Hoesen stated that J. Teig Port, M.D. (Dr. Port), Claimant’s physician, and Dr. Fricchione approved the [1215]*1215Job. Counsel for each party stipulated that the Job was offered to Claimant, and that he did not apply for it. Deposition of Karen Van Hoesen, August 3, 1995, at 21; R.R., at 107a.

Claimant testified that he could not work for Employer because he lost his investment when Testa seized2 Employer’s assets.3 Claimant also testified that he could not perform the Job because it would involve more lifting than described and was similar to his job prior to his accident which he intensely disliked. N.T. at 31; R.R. at 52a.

Claimant also presented the deposition testimony of Dr. Port, a board-certified orthopedic surgeon and his treating physician from 1994 to 1996. After Claimant underwent a functional capacity evaluation in February 1995, Dr. Port released Claimant to medium duty work. Deposition of J. Teig Port, M.D., May 13,1996, (Dr. Port Deposition) at 16-17. Dr. Port approved the Job but stated he would not have if it involved significantly more lifting than described. Dr. Port Deposition at 23.

The WCJ found Claimant capable of performing the Job, granted the modification petition and reduced Claimant’s benefits accordingly. The WCJ made the following relevant finding of fact:

18. The Claimant’s reason for not attempting to perform the Assistant Production Supervisor position, that he was unable to work for Rocco Testa, who obtained control of the Defendant [Employer] after being a creditor, to the detriment of the Claimant’s investment in the Defendant Corporation [Employer], does not preclude the Claimant’s attempt to perform a job with the Defendant [Employer],

WCJ’s Decision, October 22, 1996, Finding of Fact No. 18 at 9; R.R. at 19a.

Claimant appealed to the Board and alleged that the Job was not available to him under the standard set forth in Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987) because it was not reasonable for him to return to work for Employer after losing his investment. The Board reversed. The Board determined that the WCJ erred by not applying a “totality of the circumstances” approach adopted by this Court in Karpulk v. Workers’ Compensation Appeal Board (Worth and Co.), 708 A.2d 513, 516 (Pa.Cmwlth.), petition for allowance of appeal denied, 557 Pa. 633, 732 A.2d 617 (1998). In Kar-pulk, we stated, “Ultimately, a ‘totality of the circumstances’ approach should be applied to individual fact patterns when determining what is actually available and if a particular job is appropriate for a reasonable person in the position of the claimant.” Karpulk, 708 A.2d at 516.

Employer contends that the Board committed an error of law when it determined that the Job was not available and that [1216]*1216Claimant did not have to make a good faith attempt to obtain it.4

The employer bears the burden of proof to modify a claimant’s benefits based on a claimant’s alleged ability to return to work. In Kachinski, our Pennsylvania Supreme Court adopted the following requirements which an employer must meet to satisfy its burden to modify compensation payments:

1. The employer must produce medical evidence of a change in the employee’s condition.
2. The employer must produce evidence of a referral to a then open job (or jobs), which fits the occupational category 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. Kachinski, 516 Pa. at 252, 532 A.2d at 380.

Our Pennsylvania Supreme Court has provided the following guidance in determining whether a job is “available” to a claimant:

[A] position may be found to be actually available, or within the claimant’s reach, only if it can be performed by the claimant, having regard to his physical restrictions and limitations, his age, his intellectual capacity, his education, his previous work experience, and other relevant considerations, such as his place of residence.

Dilkus v. Workmen’s Compensation Appeal Board (John F. Martin & Sons), 543 Pa. 392, 398, 671 A.2d 1135, 1138 (1996) (quoting Kachinski).

Other relevant considerations have included non-medical factors such as the claimant’s place of residence, the distance and duration of the claimant’s commute, and the length of the workday.

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Related

Bussa v. Workers' Compensation Appeal Board
777 A.2d 126 (Commonwealth Court of Pennsylvania, 2001)

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Bluebook (online)
740 A.2d 1213, 1999 Pa. Commw. LEXIS 872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blakeslee-aluminum-inc-v-workers-compensation-appeal-board-pacommwct-1999.