Chavis v. Workmen's Compensation Appeal Board

598 A.2d 97, 142 Pa. Commw. 445, 1991 Pa. Commw. LEXIS 522
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 20, 1991
DocketNo. 2630 C.D. 1990
StatusPublished
Cited by5 cases

This text of 598 A.2d 97 (Chavis v. Workmen's 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
Chavis v. Workmen's Compensation Appeal Board, 598 A.2d 97, 142 Pa. Commw. 445, 1991 Pa. Commw. LEXIS 522 (Pa. Ct. App. 1991).

Opinions

SMITH, Judge.

Before this Court is the petition for review by Curtis Chavis (Claimant) from the November 14, 1990 order of the Workmen’s Compensation Appeal Board (Board) affirming the referee’s decision to grant the Port Authority of Allegheny County’s (Employer) petition for modification of compensation to Claimant. The issues presented on appeal to this Court are whether the referee erred in granting Employer’s petition based upon findings that Employer provided constructive notice of a van driver/lot attendant position available to Claimant, and whether the referee’s finding that Claimant could perform the duties of the position are contrary to the evidence presented. The Board’s order is reversed.

[447]*447Claimant sustained a work-related compensable injury to his left shoulder on March 10,1982 in the course of employment as a bus driver for Employer. He returned to work on May 3, 1982, and thereafter, a notice of compensation payable was issued on July 19, 1982. Pursuant to supplemental agreements, the parties agreed that Claimant was again disabled from December 1,1983 to December 6,1983, and from July 13,1984 to July 17,1984 as a consequence of the work-related injury. Claimant worked sporadically during the remainder of 1984 and on November 27, 1984, became disabled again for an undetermined number of weeks. Findings of Fact No. 4. On September 8, 1986, Employer filed a petition for modification of compensation alleging that as of August 20, 1986, Claimant’s disability decreased and that he was able to perform available light duty work. The referee granted Employer’s petition and ordered that total disability payments be reduced to the partial disability rate of $194.34 per week. The Board affirmed.

Claimant argues that the referee erred in granting Employer’s petition for modification based upon his findings that Employer provided constructive notice of a position available to Claimant as a van driver/lot attendant for Globe Airport Parking. An employer who seeks to modify workmen’s compensation benefits on the basis that the claimant has recovered some or all of his or her ability, must first produce medical evidence of a change in condition and evidence of referral to an available job which fits within the occupational category for which claimant has been given medical clearance. Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987). The notice requirement set forth in Kachinski has been explained in subsequent cases as requiring that notice of job availability be effectively conveyed to the claimant, Farkaly v. Workmen’s Compensation Appeal Board (Baltimore Life Ins. Co.), 516 Pa. 256, 532 A.2d 382 (1987), and that the work be actually available within the claimant’s capabilities. Baumgart v. [448]*448Workmen’s Compensation Appeal Board (Pullman Standard), 112 Pa.Commonwealth Ct. 71, 541 A.2d 804 (1987).

In the matter sub judice, Claimant asserts that he was not personally notified concerning the light duty positions purportedly available to him.1 Claimant further asserts that he separated from his wife and consequently received none of the mailgrams sent to Claimant at the marital residence regarding the availability of light duty positions, except notice of one position through a telephone call from his wife. Claimant acknowledged that after separating from his wife and moving out of their house, he failed to notify Employer of the change in his address and moreover, that his workmen’s compensation checks were being received by his wife who forwarded these checks to Claimant. N.T., March 21, 1989, pp. 7-8, 10-14.

The referee found that Claimant received constructive notice of Employer’s job referrals, that Claimant did not advise Employer of his change of address, that he continued to receive his compensation checks, and that Claimant failed to pick up the rest of his mail. The record supports the referee’s findings and his conclusion that Claimant has not demonstrated that he, in good faith, followed through on the job referrals as required under Kachinski. As the Board aptly stated, “[i]t is certainly not unreasonable to expect the Claimant to notify his employer of a change of address, or, at a minimum, pick up and read his mail, neither of which should prove to be an onerous burden to the Claimant.” Board’s Decision, p. 6.

Claimant next argues that the Board erred in affirming the referee’s finding that Claimant could perform the duties [449]*449required of a van driver/lot attendant. The referee found that Claimant’s physician, Dr. Phillips, determined that Claimant could perform the duties of the six positions recommended for Claimant and in particular, the position of van driver/lot attendant at Globe Airport Parking. As a consequence of these findings, the referee determined that job referrals were available for Claimant which fit within the occupational category for which he had been given medical clearance and therefore denied Claimant benefits.

An examination of Dr. Phillip’s testimony indicates that although he did indeed agree that Claimant could physically perform the duties of all six positions, Dr. Phillips unequivocally stated that Claimant would experience pain while performing the duties of each position. The following represents excerpts from the testimony:

Q. Physically he could push a mop or broom?
A. Right. But at the end of X period of time, whether it be a half hour, an hour, or three or four hours, he would have probably more pain than when he started. And if he did that consistently on a day-in, day-out basis, I imagine the pain would just get worse and worse and he would probably not be able to keep doing it.
A. [P]hysically I think there is no reason why he couldn’t do it [service station attendant], but I think the day-in and day-out of doing it in lifting hoods, cleaning windshields, and in and out of cold weather which bothers people with joint and muscle problems ... — and I think all those things together once again would probably cause pain.
A. If he is on his feet for a long period of time [mall security job], it might start to flare up his lower back where he had disk surgery____ I think it’s at least more feasible, but the prolonged standing might cause some trouble.
[450]*450Q. Doctor, I would like you to assume that occasionally he might be required to physically restrain or apprehend someone in the mall, for example, a shoplifter.
Do you think he would be physically capable of doing that?
A. Physically capable — he could reach and he could grab him. Once again, it would probably cause a lot of pain.
A. But I think physically, yes, he could do them [perform cashier/sales clerk duties at Whitlock Auto Supply]. But from the complaints and the problems he has had all along, once again I think it would probably cause him pain.
A. This one [shop laborer] would be pretty tough for him to do. He’s got some 50-pound lifting.

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Bluebook (online)
598 A.2d 97, 142 Pa. Commw. 445, 1991 Pa. Commw. LEXIS 522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chavis-v-workmens-compensation-appeal-board-pacommwct-1991.