Associated Plumbing & Heating v. W.C.A.B. (Hartzog)

• Decision Date: 16 June 1989
• Citation: 126 Pa.Cmwlth. 618,560 A.2d 865
• Court: Pennsylvania Commonwealth Court
• Parties: ASSOCIATED PLUMBING & HEATING and CNA Insurance Company, Petitioners, v. WORKMEN'S COMPENSATION APPEAL BOARD (HARTZOG, Jr.), Respondents. 1498 C.D. 1988

Page 865

560 A.2d 865

126 Pa.Cmwlth. 618

ASSOCIATED PLUMBING & HEATING and CNA Insurance Company, Petitioners, v. WORKMEN'S COMPENSATION APPEAL BOARD (HARTZOG, Jr.), Respondents.

1498 C.D. 1988

Commonwealth Court of Pennsylvania.

Submitted on Briefs April 21, 1989.

Decided June 16, 1989.

J. Lawson Johnston, Dickie, McCamey & Chilcote, P.C., William M. Conwell, Pittsburgh, for petitioners.

Stephen P. McCloskey, Kathleen Smith-Delach, Phillips & Faldowski, Washington, for respondents.

Before CRUMLISH, Jr., President Judge, COLINS, J., and NARICK, Senior Judge.

NARICK, Senior Judge.

In this workmen's compensation case, Associated Plumbing & Heating and its insurance carrier, CNA Insurance Company (referred to collectively as Employer) filed a modification petition on June 25, 1984, alleging that, as of February 1983, ¹ Thomas E. Hartzog, Jr. (Claimant) was able to do light work which was available to him.

The facts are as follows. Claimant, a plumber, suffered a work-related injury to his lower back on September 9, 1981. As a result of this injury, he received workmen's compensation benefits pursuant to a notice of compensation payable. At Employer's request, Claimant was examined by Dr. Ronald Zimmerman on August 31, 1983, October 13, 1983 and November 21, 1983. Dr. Zimmerman found that, while Claimant was unable to return to his former occupation, he had recovered sufficiently as of the above dates to be able to perform "medium work." ² Based upon Dr. Zimmerman's recommendations, Mr. Mark Lahey, a vocational consultant retained by Employer, began a search for available employment consistent with Claimant's physical limitations and forwarded eleven job leads to the Claimant. Mr. Lahey, testifying by deposition, stated that he informed Claimant of each lead either personally or by mailgram. He subsequently forwarded descriptions of each job to Dr. Zimmerman, who approved all but one of the jobs (a cashier position at Z & L Lumber Co.).

After having received Dr. Zimmerman's and Mr. Lahey's depositions, and having heard the Claimant's testimony, the referee granted the Employer's modification petition. Specifically, the referee entered the following pertinent findings of fact:

4. The claimant was notified of the eleven job opportunities by Mark Lahey, of Options, a vocational placement and rehabilitation service.

5. The claimant applied for seven of them but not the other four.

6. The following jobs were available to the claimant, and he was advised of them:

a. A telephone sales job with Sears and Roebuck paying $3.35 per hour for 20 to 29 hours per week, available 3/26/84

b. Watchman job with County of Washington available as of 2/6/84 at $5.49 per hour, 40 hours per week, available and claimant advised as of 2/6/84

c. Two jobs with Z & L Lumber, one a cashier job and the other a sales job, the cashier job paying $3.45 per hour and the sales personnel job $10,000 to $12,000 per year, both available 3/2/84 and claimant advised the same day

7. Based upon the testimony of Dr. Ronald Zimmerman, your Referee finds as a fact that the claimant was able to do the above four jobs.

(Referee's decision dated April 10, 1985).

On Claimant's appeal, the Workmen's Compensation Appeal Board (Board) reversed, relying on this Court's decision in Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 91 Pa.Commonwealth Ct. 543, 498 A.2d 36 (1985), aff'd as modified, 516 Pa. 240, 532 A.2d 374 (1987). The Board reasoned that, because Dr. Zimmerman did not approve the specific jobs until after Claimant had been informed of them, the jobs could not be considered "available" under Kachinski. The Board summarized its rationale as follows:

The four jobs found to be available by the Referee in his Finding of Fact # 6 were as follows:

(1) Telephone sales for Sears, Roebuck: available 3/26/84, job description approved by Dr. Zimmerman 5/23/84.

(2) Watchman for Washington County: available 2/6/84, job description approved by Dr. Zimmerman 5/23/84.

(3) Cashier for Z & L Lumber: available 3/2/84, job description reviewed by Dr. Zimmerman 8/3/84. Not approved.

(4) Sales job for Z & L Lumber: available 3/2/84, job description approved by Dr. Zimmerman 8/3/84.

Dr. Zimmerman's Deposition was taken on 12/26/84 at which time he testified to his review of the job descriptions for the four jobs noted above, as well as others. The Court noted in Kachinski that "A suggested position of employment must be available when the Claimant is found to be able to perform it." That criterion has not been met in this case whether one uses either the date of the doctor's review of the job descriptions or the date of his testimony. Therefore we must Reverse the Referee's Decision in this case and order total disability benefits reinstated as of February 6, 1984.

(Board opinion dated August 29, 1986).

In light of our Supreme Court's modification of Kachinski, the Employer requested that the Board reconsider its decision. The Board denied Employer's petition for rehearing, concluding:

The facts here are that the work was shown available [sic] at a date prior to the medical examination relied upon by the Referee. This principle to us is basic and not changed by the Supreme Court. That is the Claimant's condition must be established before work can be proven to be available within the established condition.

(Board opinion dated May 16, 1988) (emphasis in original). Employer then took this appeal.

Employer argues that the Board has incorrectly interpreted the import of Kachinski. For the reasons which follow, we must agree.

We begin by examining the guidelines for determining whether work is "available" to a claimant, which the Supreme Court formulated in Kachinski, 516 Pa. at 251-22, 532 A.2d at 379-80:

It is enough that the employer produce medical evidence describing the claimant's capabilities, and vocational evidence classifying the job, e.g., whether it is light work, sedentary work, etc., along with a basic description of the job in question. From such evidence it will be up to the referee to determine whether the claimant can perform the job in question. ... Thereafter, the decision of the referee will be reviewable as a finding of fact.

....

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.(emphasis added.)

As we read the Court's guidelines, Employer has followed the proper steps in the proper order. Claimant was first examined by Dr. Zimmerman, who determined the extent of his physical limitations. Dr. Zimmerman then supplied reports to Employer's vocational consultant following his three examinations of Claimant. The consultant, Mr. Lahey, then attempted to locate open positions of employment, taking Claimant's limitations into account. The problem here arises because Mr. Lahey then took the additional step of submitting each individual job description to Dr. Zimmerman for his subsequent approval. Claimant argues that, because this approval came several months after the job referrals, the jobs cannot be said to have been available when they were offered to Claimant.

Claimant's argument ignores the fact that Dr. Zimmerman examined him on three occasions prior to the referrals. The last examination was on November 21, 1983, approximately two and a half months before the first referral. This case may not reasonably be analogized to Mrs. Smith's Frozen Food v. Workmen's Compensation Appeal Board (Gladfelter), 113 Pa. Commonwealth Ct. 25, 535 A.2d 1259 (1988), upon which Claimant relies. In Mrs. Smith's, the Employer sought modification on the basis of jobs available to the claimant in the spring of 1983. However, the claimant therein was not examined by a doctor until December 1983. Relying on the results of the December examination, the employer's doctor approved certain of the job descriptions as being within the claimant's capabilities. We affirmed the Board's decision denying the modification petition in Mrs. Smith's specifically because the claimant had not been given medical clearance to perform the jobs when the jobs were referred to him. Here, Dr. Zimmerman had examined Claimant before Mr. Lahey began to search for jobs for him. ³

Analyzing the facts of this case within the Kachinski framework, we must conclude that the Employer complied with the first of the four criteria enumerated therein, by producing evidence of a change in Claimant's condition which was supported by Dr. Zimmerman's reports. ⁴ It then offered evidence, through the testimony of Mr. Lahey, that it referred Claimant to jobs within his medical limitations, ⁵ thereby meeting the requirements of the second Kachinski criterion. If both of these factors have been established by an employer, it is then up to the claimant to demonstrate that he has, in good faith, followed through on the job referrals (third Kachinski criterion).

Here, the Claimant failed to demonstrate that he followed through on all of the leads provided to him. Although Claimant testified that he did not receive notice of the Sears and Roebuck job and the two positions at Z & L Lumber, the referee found as a fact that he did. Because that finding finds ample support in the testimony of Mr. Lahey, we are without power to disturb it....