Joyce v. Workmen's Compensation Appeal Board

705 A.2d 417, 550 Pa. 244, 1997 Pa. LEXIS 2836

• Court: Supreme Court of Pennsylvania
• Decided: December 29, 1997
• Docket: 23 E.D. Appeal Docket 1995
• Status: Published

Opinions

OPINION

ZAPPALA, Justice.

This is a workers’ compensation case in which the claimant’s total disability benefits were modified to partial disability benefits upon petition by the employer. The issue on appeal is whether the findings of fact on which the modification was based are supported by substantial evidence. In our previous Opinion, 545 Pa. 135, 680 A.2d 855 (1996), we determined that certain evidence submitted by the employer was hearsay and should not have been admitted. We concluded that the finding of job availability was based on this hearsay, and held that there was no substantial competent evidence to meet the employer’s burden of showing available work.¹

In its petition for reargument, the Appellee suggested that our analysis misapprehended the effect of the determination regarding the hearsay evidence. That evidence went not to the issue of job availability but to the issue of the claimant’s follow-through on the job referral. The question, therefore, is whether there is substantial evidence to support the finding that the employer referred the claimant to an available job within his physical limitations, and more importantly, whether absent the hearsay there is substantial evidence to support the finding that the claimant failed to make a good faith effort to obtain this work.

We agree that our previous analysis confused the evidence and the respective burdens of proof. Upon review of the record, we conclude that there is substantial evidence to support each of the findings of fact, and thus the order modifying the claimant’s benefits must be affirmed.

William Joyce injured his back at work and was receiving benefits for total disability. Joyce’s physician eventually released him to light duty work subject to certain restrictions. A vocational counselor engaged by his employer notified him of three suitable jobs. As to one of these, a dispatcher position at Trap Rock Concrete Company, the referral indicated that Joyce was to contact Mr. Bob Root. According to Joyce, he called Trap Rock three days after receiving the notification from the vocational counselor and asked to speak to Root. He was told that Root was not available, and that the job had been filled several weeks before and no applications were being taken. Joyce did nothing further with respect to this referral.

The vocational counselor’s testimony was the focus of our previous Opinion. Specifically, we determined that the counselor gave inadmissible hearsay testimony when she stated that she had spoken with Root and he said that Joyce had not applied for the dispatcher’s position.² Unfortunately, we drew an erroneous conclusion from this determination when we stated, “the finding of job availability in this case was based upon unsubstantiated hearsay testimony elicited from the employer’s vocational expert that Appellant did not apply for the Trap Rock Concrete position.” 545 Pa. at 142, 680 A.2d at 858 (emphasis added). The finding of job availability was, in fact, based on the vocational counselor’s testimony about how she had identified the positions contained in her letter to Joyce.³ The hearsay testimony that Joyce did not apply for the Trap Rock job had no bearing on this finding. It was relevant only to the issue of whether Joyce had “in good faith followed through on the job referral”.

The referee found that Joyce “failed to make a good faith effort to obtain this available work.” The question is whether, excluding the inadmissible hearsay, this finding is supported by substantial evidence nonetheless. The answer is yes. In fact, Joyce conceded the content of the inadmissible hearsay. He testified that he did not apply for the Trap Rock job after the person he spoke to on the phone told him that the job had been filled. Accordingly, the point of contention is not whether Joyce applied for the job (he acknowledged that he did not) but whether he made a good faith effort even though he did not apply for it.

The referee did not identify the evidence on which he based his finding. He stated only that, “By the claimant’s own admission he did not due [sic] that which is necessary to secure a job.” This is apparently a reference to Joyce’s deposition testimony, on cross-examination by the employer’s counsel, about his actions upon receiving the job referral letter from the vocational counselor. After eliciting Joyce’s testimony that he had done no more than make the phone call to Trap Rock and had simply submitted applications at the other two locations, without making any follow-up contacts, the employer’s counsel asked Joyce whether he thought he would have to do more in order to get a job. Joyce responded, “Yes.”

The employer also emphasized two other points in argument to the referee and at each level on appeal: (1) that Joyce had waited several days after receiving the referrals to contact any of the prospective employers; and (2) that Joyce had made no effort to speak with Bob Root, the designated contact at Trap Rock, but had accepted the representation of the person who had answered the phone, without knowing that person’s authority, that no applications were being accepted.

Upon review, we agree that this evidence supports the referee’s finding that Joyce failed to make a good faith effort to obtain the work that had been referred to him. Accordingly, pursuant to the applicable standard of review, we must affirm the orders below.

NEWMAN, J., did not participate in the consideration or decision of this case. CAPPY, J., files a Dissenting Opinion in which NIGRO, J., joins.

1 . In Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 252, 532 A.2d 374, 380 (1987), we provided a guide to analyzing claims when an employer seeks modification of benefits based on a claimant’s ability to return to work. The employer must produce medical evidence of a change in condition and evidence ' of a referral to an open job that fits the occupational category for which the claimant has been given medical clearance. The claimant must then demonstrate that he or she has in good faith followed through on the referral. If the referral fails to result in a job, the benefits should continue unmodified. However, benefits may be modified if the claimant fails to pursue a valid referral.

2 . We likewise held in Pertile v. Workmen’s Compensation Appeal Board (Construction Engineering Consultants, Inc.), 546 Pa. 569, 687 A.2d 367 (1997), that a vocational expert’s testimony that a claimant did not apply for a referred position, based on follow-up conversations with the employer, was inadmissible hearsay.

3 . 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. See Acme Markets v. Workmen’s Compensation Appeal Board (Pilvalis), 142 Pa.Cmwlth.400, 597 A.2d 294 (1991). A vocational counselor acquires job descriptions and information about job availability from prospective employers and relies on this information in making job referrals.