# Joyce v. Workmen's Compensation Appeal Board

> Supreme Court of Pennsylvania · July 31, 1996 · 545 Pa. 135

URL: https://www.frixlaw.com/law-library/cases/4952958

## Case

- **Full name:** William JOYCE v. WORKMEN'S COMPENSATION APPEAL BOARD (OGDEN/ALLIED MAINTENANCE and Travelers Insurance Company)
- **Court:** Supreme Court of Pennsylvania
- **Decided:** July 31, 1996
- **Citations:** 545 Pa. 135; 680 A.2d 855; 1996 Pa. LEXIS 1515
- **Precedential status:** Published
- **Opinion:** Dissent by Nix
- **Judges:** Cappy, Castille, Consideration, Files, Flaherty, Matter, Newman, Nigro, Nix, Zappala
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

NIX, Chief Justice,
dissenting.
I agree with Mr. Justice Castille’s conclusion that “the employer’s job placement specialist’s testimony does not pertain to the issue of job availability but rather pertains to appellant’s good faith in pursuing a position.” Concurring and Dissenting Opinion at 860. However, I write separately to further elaborate on the failings of the majority opinion.
The majority concludes that “the Employer failed to introduce substantial competent evidence to meet its burden of proof as to job availability pursuant to the second prong of Kachinski ” and therefore it did not need to address whether a good faith effort was made to obtain that job. Majority Opinion at 859-60. As the majority correctly states, “[i]n meeting its burden of proof, an employer must prove that a job referral is ‘actually available’ to the claimant and must bring the referral to the attention of the claimant or his counsel.” Id. at 857. The majority then goes on to state that “[i]t is clear that the finding of job availability in this case was based upon unsubstantiated hearsay testimony elicited from the employer’s vocational expert that Appellant did not apply for the ... position.” Id. at 858.
Whether or not Appellant applied for the Trap Rock position is irrelevant in determining job availability. All that is required is that a job was available which fits the occupational category for which Appellant has received medical clearance and that the opening was communicated to Appellant. Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987). The only relevance
*862 of the hearsay statement concerning Appellant’s failure to apply for the Trap Rock position goes to the second prong of Kachin-ski namely, whether Appellant exercised good faith in following through on the job referral. Accordingly, I join the concurring and dissenting opinion of Mr. Justice Cas-tille.
ORDER
PER CURIAM.
AND NOW, this 22nd day of October, 1996, the Petition for Reargument filed by Appellees Ogden/Allied Maintenance and Travelers Insurance Company is granted.
NIGRO and NEWMAN, JJ., did not participate in the consideration or decision of this matter.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4952958. Public record. Not legal advice.