Sakell v. Workmen's Compensation Appeal Board

651 A.2d 704, 1994 Pa. Commw. LEXIS 681
CourtCommonwealth Court of Pennsylvania
DecidedDecember 15, 1994
StatusPublished
Cited by4 cases

This text of 651 A.2d 704 (Sakell 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
Sakell v. Workmen's Compensation Appeal Board, 651 A.2d 704, 1994 Pa. Commw. LEXIS 681 (Pa. Ct. App. 1994).

Opinions

RODGERS, Senior Judge.1

Linda Sakell (Claimant) appeals from an order of the Workmen’s Compensation Appeal Board (Board) affirming the referee’s decision to grant Ridgaway Philips Health Care Center’s (Employer) petition for modification because claimant had failed to respond in good faith to two positions that were available to her and which were within her vocational and physical capabilities. Claimant does not dispute that she failed to respond in good faith, nor that the jobs were within her vocational and physical capabilities.

Claimant argues that Employer failed to prove that it had informed prospective employers of Claimant’s physical limitations and had, therefore, failed to show the jobs were available to her. The Employer replies that it had referred Claimant to jobs within the category for which Claimant had received medical clearance which was all that the law required.

In August 1989, Claimant, a licensed practical nurse, suffered a work-related soft tissue injury of the neck (cervical strain) while employed by Ridgaway Philips. She was paid total disability benefits until August, 1990, when she returned to work on light duty and received partial disability benefits until September, 1990, when her total disability recurred. In May, 1992, Employer filed its petition to modify alleging Claimant was able to return to work at available jobs. Employer presented the testimony of Dr. Lawrence J. Goren, an industrial medicine specialist, who treated Claimant from January, 1990 through March, 1992. In May, 1991, Dr. Goren evaluated Claimant and concluded she could sit, stand and walk three hours in an eight hour day; on an occasional basis, lift up to thirty pounds; use her arms and feet without restriction; and bend, squat, crawl, climb and reach above shoulder level on an occasional basis.

Dr. Goren received specific job analyses from Mary Farris, a vocational rehabilitation counselor, and he approved all nine positions, including referrals to Holiday Inn and Chem-lawn, as falling within Claimant’s physical capabilities and approved those jobs as suitable for Claimant. The available position at the Holiday Inn was for a front desk clerk to make reservations, assign rooms and issue room keys, answer telephones and customer inquiries. Applicants were required to apply in person, but Claimant just forwarded her resume.

The position at Chemlawn was for a tele-salesperson and was also approved by Dr. Goren. This was a part-time position and consisted of telemarketing lawn service plans to potential customers and related duties. Claimant did not apply for this position, because she said “I’m not really interested in selling chemicals to anyone, or being involved in anything that would be along those lines.” (15a.)

Claimant does not dispute that she was, therefore, referred to jobs that she was able to do and that she had failed to respond in good faith to those two positions. Rather, she contends that Employer failed to prove an essential element of a prima facie case, because the vocational counselor did not testify that she had informed prospective employers of Claimant’s physical limitations and, hence, failed to prove the jobs were available. Claimant did not raise this issue before the referee, but in her appeal to the Board. The Board found that the vocational counselor gave this information to prospec[706]*706tive employers. However, a review of the record shows that Ms. Farris conducted an on-site job analysis of each position referred to Claimant and prepared a written job description which she sent to Dr. Goren, but she did not testify that she had informed prospective employers of the Claimant’s physical limitations.

In Farkaly v. Workmen’s Compensation Appeal Board (Baltimore Life Insurance Co.), 516 Pa. 256, 259, 532 A.2d 382, 383 (1987), the Supreme Court said, “[hjowever, in our decision in Kachinski we held that the threshold burden of an employer is to show that he referred the claimant to a job within the category for which the claimant received medical clearance.” On this issue the Supreme Court in Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 252, 532 A.2d 374, 380 (1987) stated “2. The employer must then produce evidence of a referral (or referrals) to a then open job (or jobs), which fits in the occupational category for which the claimant has been given medical clearance, e.g., light work, sedentary work, etc.”

Judge Barbieri further elaborated on the Kachinski guidelines in Roadway Express, Inc. v. Workmen’s Compensation Appeal Board (Lewis), 113 Pa.Commonwealth Ct. 230, 234, 536 A.2d 870, 872 (1988):

We note that a claimant who chooses not to follow up employer’s job referrals may be on dangerous ground. Employer’s threshold burden is to show he referred the claimant to a job within the category for which claimant received medical clear-ance_ Employer’s use of its own physician, instead of claimant’s treating physician, to provide this clearance presents the claimant with an opportunity to offer rebuttal medical testimony as a defense. Once employer meets its test, the claimant has the opportunity to show either:
1. good faith efforts to follow through on employer’s job referrals; ... or
2. if claimant chooses not to pursue employer’s job referrals, medical evidence which rebuts employer’s evidence of a change in condition, or indicates the unac-centabilit.v of thp offered emnlovment. . . . It is then within the referee’s province as fact finder to assess these duties and restrictions and determine if claimant could perform the job(s) referred. (Citations omitted.)

The Supreme Court of Pennsylvania has not held that, in order to present a prima facie case on a petition to modify benefits, the employer must present evidence not only that he referred the claimant to a job within the category for which he had received medical clearance, but also had informed the prospective employer of the claimant’s physical limitations.

In support of her position, the Claimant relies on Young v. Workmen’s Compensation Appeal Board (Weis Markets, Inc.), 113 Pa.Commonwealth Ct. 533, 537 A.2d 393, petition for allowance of appeal denied, 520 Pa. 622, 554 A.2d 513 (1988), where the claimant was a forty-six year old Methadone addict, who had suffered through seven major back operations, could not walk without a foot brace and cane and had not worked in seven years, referred to a job as a hall monitor in a high school and to a job as a night security guard to foot patrol a two acre truckyard. Young relies on pre-Kachinski case law, and has been limited by this Court to its facts. See Garnett v. Workmen’s Compensation Appeal Board (Equitable Gas Co.), 158 Pa.Commonwealth Ct. 100, 631 A.2d 705, petition for allowance of appeal denied, 537 Pa. 613, 641 A.2d 312 (1993). Claimant also cites Baumgart v. Workmen’s Compensation Appeal Board (Pullman Standard), 112 Pa.Commonwealth Ct.

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Bluebook (online)
651 A.2d 704, 1994 Pa. Commw. LEXIS 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sakell-v-workmens-compensation-appeal-board-pacommwct-1994.