Farkaly v. Workmen's Compensation Appeal Board

OPINION

McDermott, justice.

Claimant, Margaret M. Farkaly, while operating in the course of her employment with employer, Baltimore Life Insurance Company, was involved in a car accident in which her back and neck were injured. At the time Ms. Farkaly was a debit agent with Baltimore Life, a job which involved visiting clients for purposes of collecting insurance premiums. Since her job involved extensive driving and some lifting she was ultimately unable to continue in that employment.

The original injury to claimant occurred in August, 1978. She received compensation for this injury up until October, 1978, at which time she returned to work. In March, 1980, she filed a petition for reinstatement of benefits, alleging a recurrence of the symptoms from her original injury. In June, 1980, an interim order was signed awarding benefits. In May, 1981, employer filed a petition for modification, alleging that claimant’s disability had ceased or changed from total to partial, and that work was available which claimant was capable of performing.

After a number of hearings the referee concluded, inter alia, that payment of compensation should be reinstated, and that the amount of payments should be modified from total disability to partial disability because of the availability of suitable work: a decision which was affirmed by the Board.

On appeal the Commonwealth Court reversed, 91 Pa. Cmwlth. 571, 498 A.2d 34. Úpon petition we granted allowance of appeal. We now reverse the Commonwealth Court and reinstate the order of the Workmen’s Compensation Appeal Board.

The issue in this case is the same as that presented in Kachinski v. Workmen’s Compensation Appeal Board, 516 Pa. 240, 532 A.2d 374 (1987): whether the employer has shown the availability of suitable employment such that claimant’s benefits can be reduced from total to partial.

In Kachinski we held that a disabled claimant is entitled to a job referral to a position which the evidence proves was within his capabilities; and that the refusal of the claimant to pursue valid job referrals can be a basis for reducing benefits.

In this case there was testimony, which the referee accepted, that claimant was physically able to perform part-time sedentary work, and that two positions were available that fit this description. Though at the time of the referee’s decision he was not required to make a finding that Ms. Farkaly was referred to these jobs, the testimony in the record is undisputed that the information about these jobs was effectively conveyed to the claimant. In this regard employer’s vocational expert, after describing the jobs, testified that “[a]ll these jobs were made known to [her] attorney.” Deposition, Lawrence Thayer, March 18, 1982. Unlike Kachinski, where only general overtures were made to claimant's counsel, here the employer did everything possible to convey the information to the claimant, and thus we think the employer fulfilled its burden of referring the claimant to available work.

The only remaining question is whether the available work was within her capabilities. In considering this question the Commonwealth Court relied on its prior decision in Kachinski v. Workmen’s Compensation Board, 91 Pa.Cmwlth. 543, 498 A.2d 36 (1985), and held that the employer failed to specifically match the duties of the job to her individual capabilities. However, 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. Kachinski v. Workmen’s Compensation Appeal Board, supra, 516 Pa. at 252, 532 A.2d at 380.

Furthermore, in Kachinski we rejected the Commonwealth Court’s approach of requiring the employer to specifically detail every aspect of a job before it can be considered within the capability of the claimant. Here again we refer with approval to comments within the dissent of Judge Doyle.

I do not believe that an expert witness is required to proclaim a job to be suitable. The record here contains adequate testimony on the duties of the two positions and on Claimant’s medical restrictions. It was within the referee’s province as fact finder to assess these duties and restrictions and determine if Claimant could perform the jobs. Expert testimony linking the job duties and medical restrictions is not required in my view.

Also, as I stated in Kachinski, I believe common experience plays a permissible role in fact finding.

Farkaly v. Workmen’s Compensation Appeal Board, 91 Pa.Cmwlth. 571, 576, 498 A.2d 34, 36 (1985) (Doyle J., Dissenting) (emphasis in original).

Turning to the facts regarding the actual work offered we think the referee was correct in finding that the jobs were within claimant’s capabilities. Those capabilities, as found by the referee and not disputed by the claimant, were the ability “to do part-time sedentary work provided she is not required to sit or stand for long periods. She cannot reach above her shoulders, lift beyond 10 pounds or push or pull heavy weights.” Finding of Fact 7, Referee’s Decision April 6, 1983. The jobs in question were as a cashier and as a telephone solicitor, both of which were part-time and neither of which involved lifting.

Since these jobs were made available to claimant, and were within her capabilities, we conclude that the Board was correct in modifying claimant’s status from total disability to partial disability.

The order of the Commonwealth Court is reversed.

LARSEN, J., files a dissenting opinion.