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

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 ...


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