Litzinger v. Workers' Compensation Appeal Board

731 A.2d 258, 1999 Pa. Commw. LEXIS 452
CourtCommonwealth Court of Pennsylvania
DecidedJune 8, 1999
StatusPublished
Cited by11 cases

This text of 731 A.2d 258 (Litzinger 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
Litzinger v. Workers' Compensation Appeal Board, 731 A.2d 258, 1999 Pa. Commw. LEXIS 452 (Pa. Ct. App. 1999).

Opinion

DOYLE, Judge.

Lawrence Litzinger (Claimant) appeals from an order of the Workers’ Compensation Appeal Board, which affirmed the decision of a Workers’ Compensation Judge (WCJ) granting the petition of Builders Transport (Employer) to modify Claimant’s benefits.

On or about July 26, 1993, Employer hired Claimant to work as a truck driver and, in that capacity, Claimant transported goods from Employer’s Carlisle, Pennsylvania, facility to various interstate locations. When Claimant was driving he would be away from home for three to four days at a time, and he would sleep in a *260 sleeper unit attached to the cab of his truck.

On August 2,1993, about one week after he was hired by Employer, Claimant sustained a rotator cuff injury to his right shoulder in the course of his employment. As directed by a WCJ’s order circulated on April 12, 1995, Claimant was awarded total disability benefits in the amount of $431.76 per week, based on an average weekly wage of $647.64.

In June of 1995, Claimant’s physician, Dr. Litton, and a doctor retained by Employer, Dr. Perry Eagle, each concluded that Claimant was able to return to sedentary work. Both doctors determined, among other things, that Claimant could drive only one to three hours during an eight-hour workday.

By letter dated July 26, 1995, Employer’s job developer, Comprehensive Rehabilitation Associates (CRA), notified Claimant that Employer was offering Claimant a full-time sedentary position as a clerical assistant. The position was located at Employer’s terminal in Carlisle, Pennsylvania, and would pay Claimant $5.00 per hour. Claimant’s work hours would be Monday through Friday, noon through 8:00 p.m. Because Claimant resides in Al-toona, Pennsylvania, 1 which is approximately 116 miles from Employer’s terminal in Carlisle (232 miles round trip), CRA stated in the July 26th letter that Employer would provide Claimant with a room near its Carlisle facility in order to eliminate the need for daily commuting. CRA also stated that Employer would provide board to Claimant.

Claimant refused Employer’s offer of employment, arguing that it was not within the geographic area where Altoona residents would accept employment. Claimant offered to accept employment if it was a reasonable distance from his home.

Sometime after Claimant refused the position, Employer’s fleet manager, Linda McKnight, sent Claimant an undated letter explaining that Employer would house Claimant at the Appalachian Trail Inn, a motel located about five miles from the work site. The letter did not describe the accommodations at the Appalachian Trail Inn; nor did it include any discussion of CRA’s statement in the July 26th letter that Employer would provide Claimant with board during the work week.

In September of 1995, Employer filed a petition to modify Claimant’s benefits, alleging that (1) Claimant was released to modified work by his treating physician, (2) that Claimant was notified of that release and referred to various jobs, and (3) that Claimant failed to follow-up on those job offers in good faith and refused to return to modified work offered by Employer. In his answer to the petition, Claimant admitted that he was released to modified work and that he was notified of certain positions, but he specifically denied that “any of the proposed job positions were within the geographic area where others in the same community would accept employment.” (Answer at 1; Reproduced Record (R.R.) at 3.) Employer’s petition was assigned to the WCJ, who conducted a hearing in this matter.

Claimant stipulated that work was available at Employer’s Carlisle terminal and stipulated that such work was within the physical restrictions set by his physicians. Claimant, however, asserted that Employer’s job offer imposed unreasonable travel distance and living conditions on him, and the WCJ received evidence on this issue.

Claimant testified that every one of his neighbors who he knows works in Cambria and Blair Counties, which are geographically close to Altoona. He also testified that, because of his work-related injury, he is unable to shower or comb his hair without assistance of his wife. Claimant stated *261 that he does physical therapy at home two to three times per day using a pulley exercise device. In addition, Claimant admitted that, before he sustained his work injury, he would be on the road for three or four days at a time and that he would sleep in the sleeper cab of his truck.

Employer presented no witnesses at the hearing, but it did introduce several documents into the record. Employer introduced the medical report of Dr. Perry Eagle, who opined that Claimant’s shoulder remains injured and that Claimant will never be able to return to his pre-injury truck driver job. Dr. Eagle reviewed a job analysis of the clerical position offered by Employer and approved the job as within Claimant’s physical capabilities. Employer introduced evidence showing that Claimant’s treating physician, Dr. Litton, also reviewed the job analysis and approved the clerical position.

The job analysis reviewed by the Drs. Eagle and Litton was admitted into evidence. The job analysis provides that the duties of a clerical assistant include answering the telephone, taking messages, routing calls and filing and copying documents.

Employer also placed correspondence into the record showing that Employer offered Claimant the clerical assistant job in Carlisle, that the job paid five dollars per hour and that Employer offered to house Claimant at the Appalachian Trail Inn. Employer also introduced the letter from Claimant refusing the position because of its location.

After reviewing the above evidence, the WCJ granted Employer’s modification petition. The WCJ found that the clerical job was within Claimant’s abilities, and, although the job is 116 miles from Claimant’s home, Employer’s offer to provide lodging in a motel on weekdays made the job available to Claimant. The WCJ rejected Claimant’s testimony that he was unable to care for his personal needs as not credible.

Claimant appealed to the Board, which affirmed the WCJ. This appeal ensued.

On appeal, Claimant contends that the WCJ erred in modifying his benefits for the following reasons: (1) Employer presented no evidence showing that the clerical position, located in Carlisle, was within the geographic area where other Altoona residents would accept employment; (2) the 116 mile distance between his home and the work site is unreasonable as a matter of law; and (3) Employer is requiring Claimant to, in essence, relocate his home to Carlisle to accept the position.

In Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 252, 532 A.2d 374, 380 (1987), our Supreme Court established the procedure for modifying a claimant’s benefits:

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 evidence of a change in condition.
2.

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731 A.2d 258, 1999 Pa. Commw. LEXIS 452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/litzinger-v-workers-compensation-appeal-board-pacommwct-1999.