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04/21/97 WESTERWALD POTTERY CORP. v. WORKMEN'S

COMMONWEALTH COURT OF PENNSYLVANIA


April 21, 1997

WESTERWALD POTTERY CORP., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (WATTERS), RESPONDENT

Appealed From No. A95-2638. State Agency, Workmen's Compensation Appeal Board.

Before: Honorable Rochelle S. Friedman, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Charles A. Lord, Senior Judge. Opinion BY Judge Friedman

The opinion of the court was delivered by: Friedman

OPINION BY JUDGE FRIEDMAN

FILED: April 21, 1997

Westerwald Pottery Corporation (Employer) appeals from an order of the Workmen's Compensation Appeal Board (WCAB) affirming the decision of a Workers' Compensation Judge (WCJ) to deny the suspension and modification petitions filed by Employer. We vacate and remand.

On March 8, 1992, Rogenna Watters (Claimant) sustained a work-related injury to her right shoulder. However, Claimant continued to work for Employer in a light duty capacity, receiving workers' compensation benefits for partial disability pursuant to a Notice of Compensation Payable. (WCJ's Findings of Fact, Nos. 1, 7.)

In June 1992, Claimant missed work in order to undergo surgery on her right shoulder; during that time, Claimant received total disability benefits. (WCJ's Finding of Fact, No. 2.) In October 1992, Claimant returned to work in a modified duty capacity but was unable to perform her job duties. As a result, Claimant once again received total disability benefits. (WCJ's Finding of Fact, No. 3.)

In January 1993, Claimant was seen by Jon B. Tucker, M.D., who performed surgery on Claimant's right shoulder. Although this surgery improved the function in Claimant's shoulder, Claimant continued to experience severe pain, especially when she used her right arm above shoulder level. (WCJ's Finding of Fact, No. 4.)

In December 1993, Employer hired Genex, a vocational rehabilitation firm, to find suitable work for Claimant. Over several months, Genex sent Claimant numerous job referrals for positions which were supposedly within Claimant's physical restrictions. (WCJ's Finding of Fact, No. 13.)

On April 4, 1994, Employer filed a suspension petition alleging that, as of March 28, 1994, Claimant failed to follow through in good faith on a job referral at Sears Roebuck & Company (Sears). Claimant filed an answer denying the material allegations of the petition. On May 12, 1994, Employer filed an amended petition alleging that Claimant's benefits should be suspended or modified because, as of April 27, 1994, Claimant failed to follow through in good faith on a job referral at Sears. *fn1 On November 9, 1994, Employer orally amended its petition to allege that Claimant failed to follow through in good faith on several other job referrals. (WCJ's Findings of Fact, Nos. 7-9, 12; R.R. at 68a-69a.) Hearings were held before a WCJ.

At the hearings, Claimant testified regarding the various job referrals. *fn2 With respect to those which are at issue here, *fn3 Claimant testified that she: (1) presented herself for an interview with Sally's Beauty Supply (Sally's) and gave the proprietor a copy of Dr. Tucker's physical capacities checklist, but was not offered a job; (2) filled out a written application for a hostess position with Applebee's Restaurant (Applebee's), stating a preference for $12.00 per hour, but was not offered employment; *fn4 (3) applied at Sears for a job as inside credit solicitor and was offered the job, but turned it down because the travel distance and commute time were too great for the number of hours and rate of pay; *fn5 and (4) applied for a job with Gingiss, a formal wear and tuxedo rental store, but turned down an interview opportunity because the travel distance was too great for the number of hours and rate of pay. *fn6 (WCJ's Finding of Fact, No. 14.)

Employer presented the deposition testimony of Carol Bleier, a vocational counselor from Genex who provided job placement services in this case. Bleier testified, in relevant part, that Claimant: (1) was not offered the job at Sally's; (2) applied for the hostess position at Applebee's 19 days after notice was sent to her; *fn7 (3) turned down a job offer with Sears because the 25-mile distance between Sears and Claimant's home was too far to travel for the rate of pay; *fn8 and (4) applied for the job at Gingiss but refused an interview because the 33-mile commute was too far for the rate of pay. *fn9 (WCJ's Findings of Fact, Nos. 15-16, 18.)

Upon consideration of the evidence presented, the WCJ accepted Claimant's testimony and found that: (1) Claimant applied in good faith for the job with Sally's, but she received no job offer; (2) the job with Applebee's was not available to Claimant because Claimant was not the type of person that Applebee's was looking to hire; and (3) the jobs with Gingiss and Sears were not available to Claimant because the distance and travel time were too great for the rate of pay and the number of hours involved per week. (WCJ's Findings of Fact, Nos. 30, 32-33.) The WCJ denied Employer's petitions, concluding that Employer failed to show that work was actually available to Claimant which fit the occupational category for which Claimant had been given medical clearance. Employer appealed to the WCAB, which affirmed the WCJ's decision.

On appeal to this court, *fn10 Employer contends that the WCJ erred in determining that the job with Sears was not actually available to Claimant. *fn11

Under Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987), *fn12 the employer has the burden of showing that, in making a particular job referral, the job is actually available to the claimant:

position may be found to be actually available, or within the claimant's reach, only if it can be performed by the claimant, having regard to his physical restrictions and limitations, his age, his intellectual capacity, his education, his previous work experience, and other relevant considerations, such as his place of residence.

Dilkus v. Workmen's Compensation Appeal Board (John F. Martin & Sons), 543 Pa. 392, , 671 A.2d 1135, 1138 (1996) (quoting Kachinski). The duration of a claimant's commute and the length of the workday are relevant considerations in determining whether a position is actually available to a claimant. Id. ; Goodwill Industries of Pittsburgh v. Workmen's Compensation Appeal Board (Friend), 158 Pa. Commw. 292, 631 A.2d 794 (Pa. Commw. 1993). However, low pay and commuting expenses are of no moment because the Workers' Compensation Act (Act) *fn13 provides for partial disability payments based on the difference between the earning power of the claimant and the claimant's pre-injury wage. Dilkus.

In addition to the relevant factors set forth in Dilkus, this court has considered whether the claimant has reliable private transportation or accessible public transportation to the positions offered, DME Company v. Workmen's Compensation Appeal Board (Peters), 162 Pa. Commw. 418, 639 A.2d 869 (Pa. Commw. 1994); Titusville Hospital v. Workmen's Compensation Appeal Board (Ward), 122 Pa. Commw. 619, 552 A.2d 365 (Pa. Commw. 1989), and whether other persons in the same community would accept employment at a certain location. Scheib v. Workmen's Compensation Appeal Board (Ames Department Store), 143 Pa. Commw. 193, 598 A.2d 1032 (Pa. Commw. 1991). Ultimately, our inquiry is whether a particular job is appropriate for a reasonable person in the position of the claimant. Goodwill Industries of Pittsburgh.

Here, the WCJ found that the inside credit solicitor position with Sears was not actually available to Claimant because the job was too far away from Claimant's residence for the rate of pay and the number of hours involved per week. (WCJ's Finding of Fact, No. 32.) First, the rate of pay and the number of hours in a work week are not relevant factors for consideration. In Dilkus, our supreme court explained that, under section 306(b) of the Act, 77 P.S. § 512, a claimant who returns to work in a position which pays less than the claimant's pre-injury wage is entitled to partial disability payments based on the difference between the claimant's earnings and the claimant's pre-injury wage. Thus, here, Claimant would have received weekly partial disability benefits to compensate her for the low rate of pay and the part-time work hours. *fn14

Second, while the WCJ properly considered the duration of Claimant's commute to Sears, the WCJ made no finding with respect to the length of the workday. In Dilkus, our supreme court held that a one hour commute was not unreasonable for an eight hour workday. Thus, the duration of a claimant's commute must be considered in light of the claimant's workday. *fn15

Third, the WCJ made no finding as to whether Claimant had reliable private transportation or whether a reasonable person in Claimant's community would accept employment at Sears. One could reasonably infer from the record evidence here that Claimant had reliable private transportation. *fn16 Moreover, the record contains evidence which suggests that it would not be unreasonable for people in Claimant's geographic area to commute to Sears for work. *fn17

Finally, we note that Claimant's decision to turn down the Sears job was based, in part, on babysitting difficulties, including the cost of babysitting. (R.R. at 98a.) Although the WCJ made no findings in this regard, we do not believe that this failure constitutes an error of law. Claimant testified that: (1) she is married and has two children, six and eight years old, (R.R. at 124a); (2) she paid $4.00 per hour for child care services before her work injury, (R.R. at 98a); and (3) her formers babysitters are no longer available because they have gotten jobs, (R.R. at 98a). Quite clearly, Claimant had to arrange and pay for child care in order to work prior to her injury; therefore, Claimant cannot complain now that babysitting difficulties prevent her from accepting employment at Sears.

Because the WCJ failed to make necessary findings of fact, we vacate the order of the WCAB and remand this case to the WCAB for remand to a WCJ to take additional evidence, as needed, and to make additional findings of fact and Conclusions of law.

ROCHELLE S. FRIEDMAN, JUDGE

ORDER

AND NOW, this 21st day of April , 1997, the order of the Workmen's Compensation Appeal Board, at A95-2638, dated June 12, 1996, is vacated, and this case is remanded to the Workmen's Compensation Appeal Board for remand to a Workers' Compensation Judge to take additional evidence, as needed, and to make additional findings of fact and Conclusions of law.

Jurisdiction relinquished.

ROCHELLE S. FRIEDMAN, JUDGE


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