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Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Janet Benedict, : Petitioner : : v. : No. 1447 C.D. 2004 : SUBMITTED: January 14, 2005 Workers' Compensation Appeal : Board (O & O IGA Supermarkets), : Respondent : BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER FILED: April 13, 2005 Claimant Janet Benedict petitions this court for review of a Workers' Comp. Appeal Bd. (Board) order that affirmed the decision of a Workers' Compensation Judge (WCJ) granting the modification petition of employer O & O IGA Supermarkets effective January 19, 1993, dismissing employer's suspension petition, and marking claimant's penalty petition as withdrawn. The pertinent findings of fact are that, on August 4, 1984, while working as a deli cutter/slicer for employer, claimant sustained a back strain, thereafter collecting benefits by way of a notice of compensation payable. In March of 1993, employer filed a petition to modify or suspend claimant's compensation benefits, alleging that she was no longer totally disabled; employer had presented her with suitable, available work; and claimant had not responded in good faith to employer's job referrals. In support of its petition, employer presented the deposition testimony of Stanley Askin, M.D., who examined claimant on May 24, 1991, and July 2, 1992, and who opined that she could perform sedentary employment. Employer also presented the testimony of Beth Darman, a certified rehabilitation counselor, who located five jobs that she thought were suitable for claimant, including a part-time clerk position at Morris Iron & Steel as well as a full-time position at Ansercom. Claimant testified on her own behalf and also presented the deposition testimony of Thomas C. Peff, M.D. Dr. Peff opined that claimant was capable of performing this sedentary work. The WCJ found both the testimony of Dr. Askin and Darman credible and convincing. He found the testimony of Dr. Peff to be credible and persuasive other than where it conflicted with Dr. Askin's testimony. He further found claimant's testimony credible, but determined that she did not exercise good faith in pursuing the referrals because she only applied for two of the five available jobs. Accordingly, the WCJ, inter alia, granted employer's modification petition, reducing her benefits based on what the first available job at Ansercom would have paid, and dismissed employer's suspension petition. See WCJ's opinion and order (circulated August 28, 1997) at 2-5. In a later decision circulated on August 30, 2001, which adopted his August 28, 1997, decision to the extent they were not inconsistent,1 WCJ Hagan stated the issues as follows: 1 This case has a long and tortuous procedural history. By decision circulated May 13, 1997, WCJ Hagan dismissed employer's petition to modify or suspend benefits as moot, erroneously believing that the parties had resolved all of the outstanding issues. On August 28, 1997, he circulated an amended decision modifying claimant's benefits based on her lack of good faith in pursuing job referrals, but dismissing employer's suspension petition. On December 24, 1997, the Board, based on a stipulation of the parties, and unaware of the fact that the WCJ had issued (Footnote continued on next page...) 2 The issues presented come down to whether [claimant] acted in good faith in response to the available jobs, approved as within her capacities by Askin and referred to her by Dorman [sic]. The presence or absence of good faith to be considered is in reference to the job at Morris Iron & Steel. WCJ's opinion (circulated August 30, 2001), slip op. at 2.2 _____________________________ (continued...) an amended decision, remanded the case to the WCJ for a final decision on the merits of the modification/suspension petition. By order circulated June 4, 1998, WCJ Hagan appears to have vacated his August 28, 1997, decision, stating that a new decision would be rendered on the petition. By decision circulated May 6, 1999, WCJ Hagan determined that the remand was moot and no second decision was necessary; he therefore dismissed employer's petition as redundant and moot. By decision circulated February 15, 2000, the Board vacated WCJ Hagan's May 6, 1999, decision and remanded "for consolidation with other matters and possible appeals still pending on this case." Board order (circulated February 15, 2000). The Board further directed: "If the WCJ has not already issued a Decision based on his Interlocutory Order of June 4, 1998, we ask that he consolidate this matter with those proceedings." Id. On March 6, 2000, claimant filed a penalty petition. On April 3, 2000, employer filed a second petition to modify or suspend benefits, based on the offer of a specific job. By decision circulated August 30, 2001, WCJ Hagan granted employer's modification petition based on claimant's failure to apply for a specific job at Morris Iron & Steel Company, dismissed employer's suspension petition, and marked claimant's penalty petition as withdrawn. In his opinion, the WCJ incorporated by reference his August 28, 1997, decision, "affirm[ing]" it "except to the extent where it is contradicted by any other portion of this decision and order[.]" WCJ's opinion (circulated August 30, 2001), slip op. at 3. By opinion and order circulated on October 28, 2003, the Board affirmed the WCJ's decision granting employer's modification petition and remanded the case so the WCJ could award claimant reasonable litigation costs. By decision circulated February 4, 2004, upon agreement of the parties, WCJ Poorman issued an order dismissing "the remanded Penalty, Modification and Suspension Petitions" as moot. Thereafter, by opinion and order circulated June 17, 2004, the Board adopted and incorporated by reference its October 28, 2003, order affirming WCJ Hagan's August 30, 2001 decision, "thereby rendering it a final determination which Claimant may appeal to the Commonwealth Court." Board order (dated June 17, 2004). 2 Claimant asserts that, in his August 30, 2001, determination, the WCJ found that the only job she failed to apply for was the position at Morris Iron & Steel, as opposed to his August 28, 1997, decision, wherein the WCJ found she applied for merely two of the five referred jobs. By contrast, employer contends that the WCJ based the August 2001 modification of claimant's (Footnote continued on next page...) 3 The WCJ then found that claimant was referred to a part-time clerk job at Morris Iron & Steel; the job was considered sedentary; it was available as of January 12, 1993, and claimant admitted receiving the referral letter on January 14. Dr. Askin approved the position as suitable, and claimant's own doctor approved her for sedentary employment. The referral to the Morris Iron & Steel position directed her to contact a "Jim" in person, but, instead, claimant telephoned and requested to speak to a "Jean." Regardless, claimant spoke to neither Jim nor Jean, although whomever she spoke to told her the position was no longer available. Claimant did not pursue the referral further. See Findings of Fact Nos. 3-7, WCJ's opinion (circulated August 30, 2001), slip op. at 3. The WCJ then concluded that employer met its burden of proving that it referred claimant to a suitable job as of January 12, 1993, that she in turn failed to show good faith in responding to the job referral, and that, accordingly, employer was entitled to a modification of claimant's benefits as of January 19, 1993 (which was the last date to apply for the job according to the referral letter). After the Board affirmed the modification of her benefits, claimant appealed to this court. On appeal, claimant argues that the WCJ's findings of fact and conclusions of law regarding the availability of suitable jobs are not supported by substantial, competent record evidence. Specifically, claimant contends that the position at Morris Iron & Steel was not actually available because the position was filled within one week's time and, therefore, did not constitute a valid job offer.3 _____________________________ (continued...) benefits on the referred job at Morris Iron & Steel as well as the referred position at Ansercom. Given the ensuing analysis, we need not confront this issue here. 3 Specifically, Darman, the rehabilitation counselor, testified that the job was filled the week after January 14; claimant testified, however, that it was filled by January 14. 4 This matter, which involves a work injury that pre-dates the 1996 amendments to the Workers' Compensation Act (Act),4 is governed by the standards relating to an injured employee's return to work, set forth by our Supreme Court in Kachinski v. Workmen's Comp. Appeal Bd. (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987).5 We are here concerned with the second element of the Kachinski test, wherein an employer is required to "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.[,]" 516 Pa. at 252, 532 A.2d at 380. We are also concerned with the third element, which requires a claimant to "demonstrate that [s]he has in good faith followed through on the job referral(s)." Id. "Where the modification petition is predicated upon the fact that the employer made a medically approved position available to the claimant, the employer need only establish that the job offers were within the claimant's physical capabilities and were available." Kilker v. Workmen's Comp. Appeal Bd. (E.J. Rogan & Sons), 667 A.2d 1215, 1216 (Pa. Cmwlth. 1995) (citation omitted). A job is "actually available" if it "receives medical clearance and the claimant is advised of that clearance while the job is still open." H.M. Stauffer & Sons, Inc. v. Workmen's Comp. Appeal Bd. (Davis), 687 A.2d 869, 871 (Pa. Cmwlth. 1996) (citations omitted). 4 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2626. 5 After the 1996 amendments to the Act, Kachinski remains applicable "where an employer seeks a modification of benefits based on an offer of a specific job with the employer." Allied Prods. and Servs. v. Workers' Comp. Appeal Bd. (Click), 823 A.2d 284, 287 n.6 (Pa. Cmwlth. 2003) (citation omitted) (emphasis in original). 5 The job referral letter regarding the position at Morris Iron & Steel provided the following specific instructions: "Please complete an application as soon as possible or apply in person between 8:30 and 5:00 and the dates 1/12/93 through 1/19/93." It gave the name of the contact person as "Jim." Certified Record (C.R.), Claimant's Exhibit C-1. However, claimant's testimony and accompanying notes on the job referral letter were somewhat inconsistent as to whom she asked for and whom she talked to. For example, claimant testified on direct examination that she received the job referral letter on January 14. She then contacted employer, asking to speak to the contact person, whose name was Jean, only to be told that she was not available. The person to whom she spoke informed claimant that the position was filled but, upon claimant's request, refused to verify that information in writing. Claimant acknowledged that she did not fill out an application after receiving this information. See Notes of Testimony (N.T.), Testimony of Janet Benedict (Hearing of May 25, 1994) at 22-23. Claimant then stated on cross-examination: Q. In reference to the position that had been made available at Morris Iron and Steel, it's your testimony that you did not complete the job application? A. I telephoned them. I didn't fill out paperwork. Q. Do you recall who you spoke to there? A. Jean. A woman named Jean. Id. at 31. On notes that claimant made on the Morris Iron & Steel job referral, she indicated that she called and spoke to Jean, but asked for Jim, and was put on hold before being told (she doesn't specify by whom) that the job was filled. C.R., Exhibit C-1. 6 Regardless of whether claimant spoke to a person named Jean, she failed to testify that she spoke to Jim, the contact person listed on the referral letter. Moreover, the referral letter specifically instructed her to complete an application or apply in person between January 12, 1993, and January 19, 1993, reasonable acts that she failed to undertake. In J.E. Houck Ambulance Service v. Workers' Comp. Appeal Bd. (Bowser), 719 A.2d 840, 842 (Pa. Cmwlth. 1998), we explained that, where an "[e]mployer provides specific and reasonable instructions, the claimant is required to comply with them in order to show that she has acted in good faith in following through on the job referral." Claimant followed neither of the alternate means specified to apply for the job. Further, in Joyce v. Workmen's Comp. Appeal Bd. (Ogden/ Allied Maintenance), 550 Pa. 244, 705 A.2d 417 (1997), our Supreme Court held, inter alia, that a claimant's act in failing to pursue a referral beyond a telephone call was not a good faith effort to pursue employment, where the claimant had been told by a person of unknown authority that the designated contact person was not available to talk to him and the job was filled. This decision is controlling here.6 Claimant contends that she was not required to pursue this position because it was not actually available to her, but the record fails to support this assertion. Rather, Darman, the rehabilitation counselor, testified that she located the job at Morris Iron & Steel when she went to the work location and that the job was available as of January 12. N.T., Deposition Testimony of Beth Darman (dated 6 Compare Urueta v. Workmen's Comp. Appeal Bd. (H. Oritsky), 667 A.2d 32 (Pa. Cmwlth. 1995), where each of the referral letters to claimant set forth no more specific instruction than "[t]he following position is available for you to pursue[,]" Id. at 34, and, accordingly, claimant was not held to have acted in bad faith by failing to pursue the referrals after being told on the telephone that the jobs were no longer available. 7 September 8, 1993) at 33, 61-62. This testimony, credited by the WCJ, supports a finding that the clerk position was indeed available to claimant, thereby shifting the burden to her to pursue it in good faith. See Owens v. Workmen's Comp. Appeal Bd. (Pa. Mines Corp./Greenwich Collieries), 673 A.2d 3, 5-6 (Pa. Cmwlth. 1996), where this court held that job availability was established by the vocational consultant's testimony that he personally visited the employer to verify the position's availability and its physical requirements. Although claimant cites a variety of cases in an attempt to prove the job at Morris Iron & Steel was not actually available, these cases do not aid her position. For example, the most factually compelling of them--Vinglas v. Workmen's Comp. Appeal Bd. (Bethlehem Mines Corp.), 531 A.2d 105 (Pa. Cmwlth. 1987)--pre-dates our Supreme Court's decision in Kachinski and, therefore, its analysis is inapplicable herein.7 Because, in the matter sub judice, claimant was required to pursue the referral to Morris Iron & Steel in good faith, and her own testimony demonstrates that she did not, we now affirm the order of the Board. ________________________________________ BONNIE BRIGANCE LEADBETTER, Judge 7 In Vinglas, the referred jobs were in fact filled by the time the claimant applied for them, and the issue was whether the claimant acted unreasonably in responding to the first opening ten working days after he was informed of it and seven working days after he learned of the second. 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Janet Benedict, : Petitioner : : v. : No. 1447 C.D. 2004 : Workers' Compensation Appeal : Board (O & O IGA Supermarkets), : Respondent : O R D E R AND NOW, this 13th day of April, 2005, the order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED. ________________________________________ BONNIE BRIGANCE LEADBETTER, Judge
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