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decided: October 15, 1987.


Appeal from the Order of the Commonwealth Court at No. 2160 C.D. 1984, entered September 10, 1985, reversing the order of the Workmen's Compensation Appeal Board entered June 21, 1984. Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a concurring opinion. Hutchinson, J., notes his dissent.

Author: Mcdermott

[ 516 Pa. Page 243]


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

[ 516 Pa. Page 244]

    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.*fn1

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

[ 516 Pa. Page 245]

    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., 431 Pa. 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., 427 Pa. 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.*fn2 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."*fn3 Delno v. Celebrezze, 347 F.2d 159 (9th Cir.1965). The plan represents a

[ 516 Pa. Page 246]

"form of social insurance . . . whereby persons gainfully employed, and those who employ them, are taxed in order to permit the payment of benefits."*fn4 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."*fn5 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. ยงยง 422(c); ...

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