Sakell v. Workmen's Compensation Appeal Board

FRIEDMAN, Judge,

dissenting.

Because I believe that Ridgaway Philips Health Care Center (Employer) did not satisfy its burden under the standards set forth in Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987), I must dissent.

Recently, we considered the Kachinski standard in Oscar Mayer Foods Corp. v. Workmen’s Compensation Appeal Board (McAllister), — Pa.Commonwealth Ct. -,-, 648 A.2d 116, 118 (1994), stating:

Under Kachinski an employer who seeks to modify a claimant’s benefits on the basis that the claimant has recovered some or all of his ability must produce medical evidence of a change in condition.^[1] The employer must then produce evidence of referrals to then open jobs which fit the occupational category for which claimant has been cleared. The burden then shifts to the claimant to prove that he has acted in good faith in following up on those referrals.

We then discussed an employer’s burden under this standard, determining that to satisfy this burden, an employer must prove that the jobs to which it referred a claimant were actually available to the claimant by informing the prospective employer of: (1) the category of work which the claimant has been cleared to perform, e.g., light-duty, sedentary work; and, (2) the physical restrictions placed upon Claimant’s abilities. Id. It is not necessary for the prospective employer to be informed of the precise nature of a claimant’s disability, but the physical restrictions placed upon him by the work-related injury must be divulged to the prospective employer. Id.

The Workmen’s Compensation Appeal Board (Board) states that Mary Farris, a vocational rehabilitation counselor, testified that she gave the required information to all prospective employers concerning Linda Sa-kell’s (Claimant) physical limitations.² However, the Board does not indicate where this testimony appears; rather, it supports that statement by citing to the entire deposition testimony of Ms. Farris. Additionally, Employer claims that the testimony of Ms. Far-ris implicitly reveals that she informed the prospective employers of Claimant’s restrictions in reviewing the physical requirements of each respective job and cites to various portions of the record to support this claim.

My thorough reading of the record, and in particular the entire deposition testimony of Ms. Farris, does not support these assertions. As such, I cannot agree that there is substantial evidence on record to support the Board’s conclusion that Employer met its initial burden under Kachinski. Employer failed to specifically set forth such information and elicit such testimony, and I cannot infer that such information was given by Ms. Farris.

There is no doubt that Claimant did not act in good faith in following up on the Holiday Inn and ChemLawn prospective employment opportunities, and I do not condone Claimant’s behavior. However, the requirements of Kachinski, mandating that an employer provide prospective employers with such relevant information as to a claimant’s physical limitations, in my view, precludes this court from affirming the Board’s order.

I believe that the Board’s order should be reversed.

[1] 1. In all cases where an employer seeks to modify benefits, this court has held that where job availability is the basis for seeking a decrease in benefits, an employer need not prove a change in the claimant’s medical condition. Lukens, Inc. v. Workmen’s Compensation Appeal Board (Williams), 130 Pa.Commonwealth Ct. 479, 568 A.2d 981 (1989), appeal denied, 527 Pa. 656, 593 A.2d 426 (1990).

2 . The Board specifically stated that such information was given to all prospective employees; however, based on the context of that portion of the Board’s opinion, the Board clearly meant employers.