Thomas v. Workmen's Compensation Appeal Board

621 A.2d 1192, 153 Pa. Commw. 560, 1993 Pa. Commw. LEXIS 103
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 19, 1993
StatusPublished
Cited by6 cases

This text of 621 A.2d 1192 (Thomas 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
Thomas v. Workmen's Compensation Appeal Board, 621 A.2d 1192, 153 Pa. Commw. 560, 1993 Pa. Commw. LEXIS 103 (Pa. Ct. App. 1993).

Opinions

PALLADINO, Judge.

Vera Thomas (Claimant) appeals from an order of the Workmen’s Compensation Appeal Board (Board) affirming in part and reversing in part a referee’s decision which modified Claimant’s benefits from total disability to partial disability. We reverse and reinstate the award of total disability.

Claimant, while community coordinator for the School District of Philadelphia (Employer), was injured on January 20, 1981, when an opening door caused her to fall to the ground, injuring her lower back, left shoulder and left hip. Claimant [563]*563continued to work with no loss of earnings, but became totally disabled as a result of her injury on September 3, 1983. Claimant began receiving benefits on September 10, 1983 for temporary total disability pursuant to a notice of compensation payable.

On February 28, 1985, Employer filed a modification petition asserting that Claimant was capable of performing modified work which was available and consistent with Claimant’s physical limitations. Claimant filed a timely answer denying that she was capable of performing any work and asserting that she continued to suffer the effects of her work-related injuries.

At a hearing in support of its petition, Employer presented the deposition testimony of John Joyce, M.D., one of Claimant’s treating physicians, who testified that Claimant was able to perform sedentary work as of March 8, 1984. Dr. Joyce testified that he approved six potential employment positions for Claimant which were sent to him by Hoover Rehabilitation Services.

Employer also presented the deposition testimony of Ms. Barbara Richards, a vocational counselor, who testified that she sent Claimant seven job referral letters from October 17, 1984 through January 17, 1985. She further testified that in accordance with their standard practice, the referral letters Claimant received did not contain the names or addresses of the potential employers. Ms. Richards testified that Claimant did in fact contact her regarding potential job opportunities. Specifically, she testified that Claimant first contacted her on October 24,1984, but that the position she was inquiring about had been filled by that time. She further testified that when responding to a referral letter on November 2, 1984, Claimant informed her that she was not interested in full-time employment. Ms. Richards testified that when Claimant contacted her on November 28,1984 regarding a potential job opportunity, Claimant informed her that she was not interested in applying for a job because she did not expect to return to the work force at her age and she considered herself retired. [564]*564Finally, Ms. Richards testified that she had no further phone contact with Claimant.

Claimant testified that for each referral letter that she received, she called the phone number on the form which was the telephone number of Hoover Rehabilitation Services and asked for Ms. Richards or her supervisor, Mr. Lukas. Claimant stated that she was normally told that they were either not available or out in the field, but that they would return her call. She further testified that most of the time she did not receive a response from her message. Finally, Claimant testified that she has not retired from the School District.

Claimant also presented the deposition testimony of Steven D. Silberstein, M.D., a neurologist who had treated Claimant on various occasions since 1981. Dr. Silberstein testified that in his medical opinion, Claimant remains totally disabled from any employment because of chronic back pain.

The referee was not persuaded by Dr. Silberstein’s testimony, and chose to rely on Dr. Joyce’s and Ms. Richards’ testimony. The referee found that Claimant did not exercise good faith in following through on job referrals. The referee modified Claimant’s benefits to partial disability and directed Employer to pay Claimant’s medical expenses and litigation costs.

Claimant appealed to the Board alleging that the referee’s findings were not supported by substantial evidence and were contrary to law. Employer also appealed to the Board contending that the referee erred by ordering Employer to pay Claimant’s medical expenses and litigation costs.

The Board affirmed the modification of benefits 1, but reversed the assessment of litigation costs against Employer [565]*565and the order to pay Claimant’s medical expenses. On appeal to this court, three issues are presented: (1) whether the Board erred in affirming the referee’s order granting Employer’s modification petition when the referral letters sent to Claimant did not contain the name and address of the potential employer; (2) whether the Board erred in reversing the referee’s award of medical expenses when Employer did not file a pleading contesting the work injury relatedness of those expenses; and (3) whether the Board erred in reversing the referee’s award of Claimant’s litigation expenses.2

As to the first issue, Claimant argues that the Board erred in modifying Claimant’s compensation because Employer failed to satisfy its initial burden as established by Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987). Kachinski sets forth a four part test to determine whether work is available to a claimant:

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 medical evidence of a change in condition.
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.
3. The claimant must then demonstrate that he has in good faith followed through on the job referral(s).
4. If the referral fails to result in a job then claimant’s benefits should continue.

516 Pa. at 252, 532 A.2d at 380.

Claimant asserts that her good faith in following through on the referrals is irrelevant because Employer failed [566]*566to meet the second requirement of Kachinski Specifically, Claimant argues that because the the job referral letters which were sent to Claimant by Hoover Rehabilitation Services did not contain the names and addresses of prospective employers, they were deficient as a matter of law. We agree.

This court has specifically held that a job opening is simply not available to the claimant unless he is informed of the name and address of the job. Todloski v. Workmen’s Compensation Appeal Board (Supermarket Service Corp.), 115 Pa.Commonwealth Ct. 138, 539 A.2d 517 (1988). In the present case the job referral letters were sent directly to Claimant by certified mail. The letters contained a description of the duties involved, the hours, the salary and instructions to call Hoover Rehabilitation Services for more information. Ms. Richards testified that it was a standard practice at Hoover not to include the prospective employer’s name and address.

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Bluebook (online)
621 A.2d 1192, 153 Pa. Commw. 560, 1993 Pa. Commw. LEXIS 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-workmens-compensation-appeal-board-pacommwct-1993.