Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Bernard A. Snyder v. Four-Way Construction Company, No. A-90427.
Joseph J. Heston, with him, Hugh F. Mundy, Dougherty, Mundy & Leventhal, for petitioner.
Keith Coslett, with him, E. Charles Coslett, and Charles R. Coslett, Coslett & Coslett, for respondents.
President Judge Crumlish, Jr., Judge Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.
[ 113 Pa. Commw. Page 236]
This is a petition for review filed by Four-Way Construction Company (Employer) from an order of the Workmen's Compensation Appeal Board (Board) denying Employer's petition for modification of benefits from total disability to partial disability. We affirm the order of the Board.
[ 113 Pa. Commw. Page 237]
Bernard A. Snyder (Claimant) suffered a work related back injury on August 12, 1981, and has been receiving compensation for total disability in the amount of $160.00 per week since that date. Following surgery involving a laminectomy in July of 1983, and a myelogram in December of 1983, Claimant was finally cleared by his treating neurologist to perform work which did not involve lifting over thirty-five pounds as of March 16, 1984. In order to modify Claimant's benefits, Employer must prove that Claimant's condition of disability has abated and that work is available that Claimant is capable of doing. Barrett v. Otis Elevator Company, 431 Pa. 446, 246 A.2d 668 (1968). This case involves the efforts of Employer's vocational rehabilitationist to procure job referrals which Claimant could medically perform and Claimant's responsibility to follow up these referrals in good faith in light of Kachinski Page 237} v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987) and Farkaly v. Workmen's Compensation Appeal Board (Baltimore Life Insurance Company), 516 Pa. 256, 532 A.2d 382 (1987).
Employer's modification petition is based on the availability of five job referrals procured by its vocational rehabilitationist. Employer conceded at the referee's hearing that Claimant was not qualified for three of these jobs. The other two job referrals are the subject of this appeal. The practice of Employer's vocational rehabilitationist was to locate a job opening, ascertain the work description and physical requirements of the job, and then send to Claimant's counsel a letter advising of the availability of the job and requesting Claimant to contact her in order to set up the interview. This letter did not specify the physical or medical requirements of the job. At the same time, the vocational rehabilitationist would also send a form to Claimant's treating physician advising of the job description and physical demands of the job and asking the physician to certify in writing on the form that Claimant was physically capable of performing the job. On both occasions in question the physician certified Claimant was physically capable of performing the job and sent the form back to Employer's representative. A copy of this form was not provided to Claimant or Claimant's counsel. Nor did the treating physician tell Claimant or his counsel that these jobs were within Claimant's capabilities until she saw Claimant for a routine appointment over a month later.
The end result is that Claimant's counsel failed to notify his client of the job referrals until several weeks later and that Claimant failed to apply for either job because he was unaware that his physician had cleared him to perform these jobs until over a month later. Employer
[ 113 Pa. Commw. Page 238]
asserted in its petition for modification that it had met its burden of proof by providing two job referrals which had been personally cleared by Claimant's own treating physician. The Board denied Employer's petition, holding that Claimant could not reasonably be expected to apply for employment which he did not know was within the medical restrictions imposed by his treating physician.
In Kachinski and Farkaly our Supreme Court held that notice to a Claimant's counsel is imputed to the Claimant. The question here is the effectiveness of the notice provided to Claimant's counsel. The letter sent to Claimant's counsel regarding the first job referral only stated the name of the company. It provided no other information. The letter regarding the second referral stated the job was for a dispatcher and gave the hours involved.*fn1 Neither letter classified the job as light work, sedentary work, etc., Kachinski at 251, 532 A.2d at 379, or stated that the job was within the category for which Claimant had received medical clearance. Farkaly at 259, 532 A.2d at 383. By contrast, the form sent to Claimant's physician on the same date as the letter sent to Claimant's counsel ...