Brooks v. WCAB

• Decision Date: 09 April 2001
• Citation: 770 A.2d 810
• Parties: Dolores BROOKS, Petitioner, v. WORKERS' COMPENSATION APPEAL BOARD (Brockway Glass), Respondent.
• Court: Pennsylvania Commonwealth Court

770 A.2d 810

Dolores BROOKS, Petitioner, v. WORKERS' COMPENSATION APPEAL BOARD (Brockway Glass), Respondent.

Commonwealth Court of Pennsylvania.

Submitted October 22, 1999.

Decided April 9, 2001.

Sanford S. Finder, Washington, for petitioner.

Terry L. M. Bashline, Pittsburgh, for respondent.

Before DOYLE, President Judge, KELLEY, Judge, NARICK, Senior Judge.

DOYLE, President Judge.

Dolores Brooks (Claimant) appeals to this Court from an order of the Workers' Compensation Appeal Board (Board) affirming the decision and order of a Workers' Compensation Judge (WCJ) modifying Claimant's benefits. The narrow issue presented is whether a claimant's benefits can be modified pursuant to a determination of bad faith, where the claimant receives multiple job referrals from the employer, accepts one within her capabilities, then resigns to take another position, which she subsequently cannot perform. After a complete review of the record, we affirm.

Claimant sustained a work-related lumbosacral strain on November 3, 1982, within the course of her employment. Brockway Glass (Employer) accepted liability for the injury and, pursuant to a Notice of Compensation Payable, Claimant received temporary total disability benefits at a rate of $268.25 per week based on an average weekly wage of $402.38. On September 1, 1995, Employer filed petitions to modify and/or suspend compensation benefits alleging that, as of May 2, 1994,¹ Claimant had not cooperated with vocational rehabilitation efforts in finding appropriate employment.

Claimant testified that she was sent approximately nine referral notices by Employer for then open jobs, including positions with Reese Brothers (Reese) and Gabriel Brothers (Gabriel). In support of her burden of establishing good faith, Claimant testified that she applied for both positions, being initially hired for a telemarketing position with Reese.² According to Claimant, on her first day of training with Reese, she was offered a position with Gabriel as a seasonal cashier. Claimant did not return to work for Reese thereafter, but resigned and began employment with Gabriel.³ Claimant contended that the Gabriel position was more highly compensated and offered more hours than the Reese position. Claimant worked for Gabriel for approximately three weeks when she resigned because she complained that the lifting and repetitive arm movements involved in the position caused her pain and difficulty in performing her duties.

Claimant presented the testimony of Arlene Miller, who began working at Reese at the same time as Claimant. According to Miller's testimony, Claimant informed her that she was leaving the Reese position because Claimant believed that the Gabriel position was a better position that paid more and had more security, and because the sitting involved in the Reese position was causing discomfort in her back.

Employer presented the testimony of Kimberly DiPiazza, the Reese Branch Manager, who testified that she interviewed Claimant for the position of telemarketer on August 15, 1994. She hired Claimant, with training to begin on August 23, 1994. Ms. DiPiazza testified that Claimant attended one day of the three-day training period required for the position before she resigned, stating that her back and arm hurt too much. Ms. DiPiazza testified that employees were stationed at tables with ergonomically-designed chairs, that the position was sedentary and that the only lifting required was the lifting of a pen and a piece of paper.

Joseph Czuchan, Jr., the Gabriel store manager, testified that Claimant worked for him as a cashier in his Belle Vernon store from August 25, 1994 through September 16, 1994. While employed there, Claimant worked an average of 28 hours per week and earned $4.25 per hour.

At the conclusion of the hearings, the WCJ issued a decision and order granting modification as of August 15, 1994. The WCJ concluded that Claimant was able to perform the duties of the telemarketer position⁴ and specifically determined that Claimant did not exercise good faith in quitting the job with Reese without first attempting to see if she could perform the work. The WCJ found Claimant's explanation for leaving Reese not credible as the job with Gabriel paid seventy-five cents less per hour and involved less hours per week. The WCJ modified Claimant's benefits based on these findings. Claimant appealed this determination to the Board.

On appeal to the Board, Claimant argued that the WCJ erred as a matter of law in modifying Claimant's benefits based upon the proffered job referral with Reese Brothers. Claimant maintained that there was insufficient evidence to support the finding that she failed to act in good faith when she left the Reese job to pursue the position with Gabriel. The Board, however, determined that there was sufficient evidence on this matter in the record to support the WCJ's modification of Claimant's benefits using the earning capacity from the job with Reese. Claimant appealed to this Court.⁵

The law is clear that where an employer presents a claimant with an offer of available work within claimant's physical limitations, and the claimant refuses to accept such an offer, the claimant's benefits may be modified. Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987). The Kachinski Court delineated the following guidelines:

1. The employer who seeks to modify a claimant's benefits on the basis that [s]he has recovered some or all of [her] 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 [s]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. The Board noted that the instant matter concerns the third prong of the Kachinski test, i.e., whether the claimant applied for an open job in good faith. While we agree that Claimant's conduct is tangentially related to the third Kachinski prong, the core of this case involves conduct after a claimant has met all of the requirements of the Kachinski test. It is uncontroverted that Employer provided Claimant with numerous referrals,⁶ and Claimant made application to all referred positions except one, which was located outside her transportational limits.⁷ Thus, what we are called upon to decide is whether a claimant, who accepts a position as a result of an Employer referral, but does not evidence good faith in the performance of that position by resigning from that job to accept another Employer-referred position, has effectively rejected the initial position and demonstrated bad faith.

We are mindful that the term "bad faith," as used in this context, does not denote overt malfeasance on the part of the claimant, but is merely the characterization of Claimant's action for ending her employment without sufficient reason. See, e.g., Westerwald Pottery Corp. v. Workmen's Compensation Appeal Board (Watters), 692 A.2d 1145 (Pa.Cmwlth.1997) (claimant who refused offers of employment from employer referrals because of number of hours and rate of pay evidenced bad faith); IGA Food Mart v. Workmen's Compensation Appeal Board (Kugler), 674 A.2d 359 (Pa.Cmwlth.), petition for allowance of appeal denied, 546 Pa. 649, 683 A.2d 886 (1996) (concluding that claimant exhibited bad faith by failing to follow up on employer's offer of courier position at wage equal to his pre-injury wage, where claimant rejected offered position, choosing to remain at courier position which he had obtained on his own and which paid less than position offered by employer); and Johnson v. Workmen's Compensation Appeal Board (McCarter Transit, Inc.), 168 Pa.Cmwlth.439, 650 A.2d 1178 (1994) (holding that where a claimant acts in bad faith by refusing suitable and available work, claimant's benefits are reduced for an indefinite period by the amount of earnings the job would have produced). The WCJ found that the telemarketer position was within Claimant's physical limitations and that Claimant was offered the job, accepted it, started working, and then voluntarily resigned to take another position after completing only one day of training.⁸ Claimant's explanation was that she thought the Gabriel position paid more money and was a better job; but this was not borne out by the facts, as found by the WCJ. The position with Gabriel involved less hours at a lower rate of pay than did the position with Reese. In addition, Claimant provided no...