Kachinski v. Workmen's Compensation Appeal Board

498 A.2d 36, 91 Pa. Commw. 543, 1985 Pa. Commw. LEXIS 1178
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 10, 1985
DocketAppeal, No. 2160 C.D. 1984
StatusPublished
Cited by33 cases

This text of 498 A.2d 36 (Kachinski 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
Kachinski v. Workmen's Compensation Appeal Board, 498 A.2d 36, 91 Pa. Commw. 543, 1985 Pa. Commw. LEXIS 1178 (Pa. Ct. App. 1985).

Opinions

Opinion by

Judge Rogers,

Joseph Kachinski (claimant) has filed a petition for review of an order of the Workmen’s Compensation Appeal Board (board) affirming a referee’s order granting the petition of his former employer, Vepco Construction Co., for modification of his compensation benefits.

The claimant, a welder, suffered a compensable injury or injuries in an accident which occurred on January 20, 1981, on account of which he received payments for total disability under a notice of compensation payable. On April 9, 1981, the claimant filed a petition for review of the notice of compensation pay[545]*545able, alleging that he receives compensation for work-related burns to his face but that he had also suffered a back injury in the same accident for which the employer refused to compensate him. By answer, the employer denied that the claimant had sustained a back injury and, on September 24, 1981, filed a petition for modification of compensation, contending that from June 30, 1981, the claimant had sufficiently recovered from his work-related injury to be capable of returning to gainful employment and that “said employment” was presently available in the marketplace.

After hearings, the referee found that the claimant was partially, rather than totally, disabled and that there were six positions which were available in the labor market and within the claimant’s physical and intellectual capabilities. The claimant appealed, and the board affirmed the referee’s order. This appeal followed, with the claimant contending that the board’s order “is erroneous and should be set aside because the testimony concerning work available to Petitioner and within his limitations was inadequate as a matter of law since it did not specifically relate job requirements to Petitioner’s physical condition, experience and training.”

An employer, or its insurance carrier, seeking to modify a workmen’s compensation agreement and asserting that a claimant’s disability is no longer total has the burden to prove that the claimant’s condition of disability has abated and that work is available which the claimant is capable of doing. Barrett v. Otis Elevator Co., 431 Pa. 446, 246 A.2d 668 (1968); Petrone v. Moffat Coal Co., 427 Pa. 5, 233 A.2d 891 (1967); St. Vincent Health Center v. Workmen’s Compensation Appeal Board, 59 Pa. Commonwealth Ct. 130, 428 A.2d 1061 (1981). The work proposed for a [546]*546partially disabled claimant must be actually available, that is, in fact within his reach, and it must be brought to his notice by the employer. 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. The employer does not have to produce a job offer, Don-Mark Realty Co. v. Milovec, 11 Pa. Commonwealth Ct. 448, 314 A.2d 349 (1974), but positions which are pie-in-the-sky, often described by vocational experts as sedentary or light or requiring little lifting, do not without additional description of their physical demands, establish actual availability of work ■ which a claimant with particular physical limitations can do. 4156 Bar Corp. v. Workmen’s Compensation Appeal Board, 63 Pa. Commonwealth Ct. 176, 438 A.2d 657 (1981); State Products Corp. v. Workmen’s Compensation Appeal Board, 61 Pa. Commonwealth Ct. 366, 434 A.2d 207 (1981).

■The employer in this case adduced the testimony of a Dr. David Cooper, who examined the claimant on January 13, 1983, and whose testimony the referee accepted. This supports the referee’s finding that the claimant’s condition of disability had changed from total to partial. Dr. Cooper testified that the claimant was capable of doing a sedentary type of occupation, but not heavy duty work; that he was restricted to lifting not more than ten pounds; that he could stand intermittently and sit for extended periods of time; that he could stand for three to four hours during an eight hour day, but only for one-half to one hour at a time; and that he could sit for eight hours, but only for one-half to one hour at a time. [547]*547The claimant has a high school equivalency certificate and has worked as an auto mechanic, as a water and sewer pipe supervisor, and lately as a welder.

The employer also adduced the testimony of a vocational placement expert, who described a number of positions which she thought a person with the claimant’s physical restrictions could perform; the relevant positions were as follows: (1) credit adjuster of a store; (2) sales assistant at an automotive parts warehouse; (3) machine room printer at a community center; and (4) security guard. The referee found:

9. The defendant presented suitable work available in the market within claimant’s physical and mental restrictions, acceptable and approved by Dr. Cooper, which this Referee accepts as credible, as follows:
(a) Grlobe Store, Scranton, Pa. — Credit adjuster, Available, May 25, 1983 to June 1, 1983 at $4.00 per hour, forty (40) hours per week. A sitting job with no requirement' to lift, bend or squat. Although a primarily sitting job, claimant can alternate positions. Average weekly wage is $160.00 and will train.
(b) Keystone Automotive Warehouse, sales assistant, available February 4, 1983 to February 10,1983. Take orders for auto parts, prepare billing statements, compute costs, will train. $4.35 per hour, forty (40) hours per week, or $174.00 per week. Basically a sitting job.
(c) Jewish Community Center, record keeping’, inventory control, operate mimeograph and other printing machines. No experience required, primarily sitting. Available April 28, 1983 to May 4, 1983. $3.50 per hour, forty (40) hours a week or $144.00 per week.
[548]*548(d) Allied Services — Security Guard, surveillanee of property from a car. Primarily sitting, may alternate positions. Available May 13, 1983 to May 19, 1983, $4.50 per hour, forty (40) hours a week or $180.00 per week.
(e) Arco Service Station — Attendant at a self-service pump. Standing, sitting, walking. Job available October 2,1981 to October 5,1981. $3.35 per hour, part time to start, twenty (20) hours with monthly increases. Average weekly wage, $67.00.
(f) AM-PM Mini Mart — Cashier. $3.35 per hour, forty (40) hours a week or $134.00 per week. 4:00 P.M. to 12:00 P.M. Claimant had been notified of certain jobs.

First, the referee’s statement that Dr. Cooper had found acceptable and had approved all of these positions is not supported by the record. Dr.

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Bluebook (online)
498 A.2d 36, 91 Pa. Commw. 543, 1985 Pa. Commw. LEXIS 1178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kachinski-v-workmens-compensation-appeal-board-pacommwct-1985.