Kachinski v. W.C.A.B. (Vepco Const. Co.)

• Citation: 516 Pa. 240,532 A.2d 374
• Decision Date: 15 October 1987
• Docket Number: No. 59,59
• Parties: Joseph KACHINSKI, Appellee v. WORKMEN'S COMPENSATION APPEAL BOARD (VEPCO CONSTRUCTION CO.) Appeal of VEPCO CONSTRUCTION CO., and United States Fidelity and Guaranty Co. E.D. 1986.
• Court: United States State Supreme Court of Pennsylvania

Page 374

532 A.2d 374

516 Pa. 240

Joseph KACHINSKI, Appellee v. WORKMEN'S COMPENSATION APPEAL BOARD (VEPCO CONSTRUCTION CO.)

Appeal of VEPCO CONSTRUCTION CO., and United States Fidelity

and Guaranty Co.

No. 59 E.D. 1986.

Supreme Court of Pennsylvania.

Argued Jan. 27, 1987.

Decided Oct. 15, 1987.

[516 Pa. 243] Cal A. Leventhal, Honesdale, for appellant.

Richard S. Campagna, Scranton, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION

McDERMOTT, Justice.

Allocatur was granted in this case to examine the degree to which an employer must prove the availability of suitable employment for a disabled claimant before a modification of benefits may be effected. The facts of this case are as follows.

Joseph Kachinski was a mechanic employed by Vepco Construction Company. On January 19, 1981, while working on employer's premises, Mr. Kachinski was injured when a paint can exploded. The explosion caused Mr. Kachinski to fall off the machine he was working on, thereby injuring his back. The explosion also caused extensive facial burns.

Mr. Kachinski was awarded workmen's compensation benefits due to the burns he received, but no award was made related to his back injury. On April 9, 1981, Mr. Kachinski filed a petition to review the notice of compensation, alleging that his back was injured in the same accident, and that he was entitled to coverage for that injury as well. The employer denied that Mr. Kachinski had injured his back. Furthermore, on September 24, 1981, employer filed a petition to modify the compensation payments, alleging that as of June 30, 1981 claimant had sufficiently recovered from his original work-related injury as to be capable of returning to gainful employment which was then presently available in the market place.

The two petitions were considered together, and after a hearing the referee concluded that Mr. Kachinski's burns had healed, and that Mr. Kachinski did in fact injure his back in the accident, but that his back injury had improved to a point where he could no longer be considered totally disabled. The latter conclusion was based on the referee's determination that the employer had introduced sufficient evidence to establish the existence of "available work" which claimant was capable of performing. Accordingly, the referee reduced Mr. Kachinski's benefits from those appropriate for total disability to a level appropriate for a partial disability. This decision was affirmed by the Board.

On appeal, the Commonwealth Court reversed the order of the Board, effectively reinstating Mr. Kachinski's benefits. Upon petition we granted allowance of appeal.

The narrow issue presented to us is whether the evidence in this case was sufficient to sustain the employer's burden to show available work prior to effecting a reduction in benefits. However, this issue bespeaks a larger issue, which is whether an employer can sustain his burden of showing available work by demonstrating the existence of jobs in the marketplace, as opposed to demonstrating jobs which have actually been made available to the claimant. ¹

In the case of Barrett v. Otis Elevator Co., 431 Pa. 446, 246 A.2d 668 (1968), this Court held that once a claimant has discharged his burden of proving that because of his work-related injury he is unable to do the type of work he was engaged in when injured, the employer has the burden of proving that other work is available to the claimant which he is capable of obtaining. Id. at 458, 246 A.2d at 674. The Barrett rule was an extension of the Court's decision in Petrone v. Moffat Coal Co., 427 Pa. 5, 233 A.2d 891 (1967), in which the issue concerned the determination of total disability in a situation where the claimant possessed residual capabilities despite his work-related injury.

In Petrone, the claimant was seeking total disability benefits due to his long term exposure to coal dust. The Board and the Superior Court agreed that he was unfit to continue as a coal miner, but ruled that his residual capabilities made him able to do light work, and that such work was presumptively "available". This Court, however, ruled that a presumption that light work was available had no place in the law of workmen's compensation, and that the employer was required to demonstrate the availability of such work. Unfortunately the Court did not explain what evidence was required to show availability, but alluded to the proof method utilized under the Social Security disability program. See also Concurring Opinion Roberts, J. Id. at 13, 233 A.2d at 895. Although the Petrone Court did not expressly adopt the federal approach the reference thereto seems to have fostered the development of an analogous method of analyzing availability of work issues under the Pennsylvania Workmen's Compensation Act. ² Because this analysis flows from an incorrect premise it has led to some confusion, and inconsistent decisions.

Social Security is a "comprehensive contributory insurance plan", the purpose of which "is to protect workers and their dependents from the risk of loss of income due to the insureds' old age, death or disability." ³ Delno v. Celebrezze, 347 F.2d 159 (9th Cir.1965). The plan represents a "form of social insurance ... whereby persons gainfully employed, and those who employ them, are taxed in order to permit the payment of benefits." ⁴ See Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 reh. denied, 364 U.S. 854, 81 S.Ct. 29, 5 L.Ed.2d 77 (1960); Sims v. Harris, 607 F.2d 1253 (9th Cir.1979). "The right to social security benefits is in a sense 'earned', for the entire scheme rests on the legislative judgment that those who in their productive years were functioning members of the economy may justly call upon that economy ... for protection from the rigors of poverty." ⁵ Hence, the amount of disability benefits paid can be tied to the amount of contributions an employer makes. See Rosenberg v. Richardson, 538 F.2d 487 (2nd Cir.1976).

On the other hand, the workmen's compensation program is not a contributory insurance plan. Rather it is a means for the obtainment of compensation for injuries which has been substituted for common law tort actions between employees and employers. Blake v. Wilson, 268 Pa. 469, 474, 112 A. 126, 128 (1920); Rudy v. McCloskey and Co., 152 Pa.Super. 101, 106, 30 A.2d 805, 808 (1943) aff'd per curiam, 348 Pa. 401, 35 A.2d 250 (1944). See U.S. v. Demko, 385 U.S. 149, 151, 87 S.Ct. 382, 383, 17 L.Ed.2d 258 (1966).

Unlike Social Security, where the cause of a claimant's disability can be unrelated to any work activity, a workmen's compensation claimant may only collect for those injuries arising out of his employment. Similarly, a claimant's benefits are tied to his wage at the time of the injury, as opposed to contributions to a fund. Finally, entitlement to workmen's compensation is not earned per se; rather, it is caused by an injury in the workplace.

In order to be eligible for disability benefits under the Social Security Act one must be unable "to engage in any substantial, gainful activity." 42 U.S.C. §§ 422(c); 416(i). However, a workmen's compensation claimant, while he must prove that he was injured during the course of his employment, need only demonstrate that his injury causes him lost earning power. Unora v. Glen Alden Coal Co., 377 Pa. 7, 104 A.2d 104 (1954). This distinct economic injury burden reflects the compromise which the Workmen's Compensation Act fashioned between employees and employers: employees receiving immediate set benefits as opposed to the potentially greater benefits which could result from a successful tort action; and employers being protected from exorbitant unexpected costs which could result from employee lawsuits.

Therefore, whereas the theory behind Social Security is to tax presently employed workers for the inevitable day when they become either too old or too disabled to support themselves, Flemming v. Nestor, supra, 363 U.S. at 610, 80 S.Ct. at 1372, the theory behind workmen's compensation is to include within the cost of production the unpredictable expenses of occasional injuries caused during the production process. See Larson, Workmen's Compensation Law, vol. 1 § 2.20. It is because of the nature of workmen's compensation as compensation for an injury done that the claimant stands on a distinct level as compared with a social security recipient.

With the above distinctions in mind we turn to view the manner in which Pennsylvania law has developed since Petrone, supra. As noted above in Barrett v. Otis Elevator Co., supra, the Court affirmatively placed on the employer the burden of showing a change from total disability to partial disability. The Court held that burden satisfied by a showing "that other work is available to the claimant which he is capable of obtaining." Barrett 431 Pa. at 458, 246 A.2d at 674. The problem, however, has been in determining what was meant by "available": should it be interpreted to mean potentially available; or actually available?

The federal courts have consistently interpreted the Social Security Act to require a showing of potential availability of jobs. Thus, if work exists in the economy which the claimant is realistically capable of performing, the claimant cannot be considered disabled. See 42 U.S.C. § 423(d)(2)(A). This conclusion is derived from the governing statutory language which defines disability as the inability "to engage in any substantial activity." ⁶ Thus, to rebut a claim of disability it is enough to show that there exists in the economy "substantial gainful activity" which claimant is capable of obtaining. Such a showing is distinct from demonstrating that there are job openings in the economy; and a person cannot be considered disabled if his residual capabilities enable him to obtain a job which happens to be filled. See Timmerman v. Weinberger, 510 F.2d 439 (8th...