# Kurtiak v. Workmen's Compensation Appeal Board

> Commonwealth Court of Pennsylvania · December 23, 1993 · 160 Pa. Commw. 637

URL: https://www.frixlaw.com/law-library/cases/9648265

## Case

- **Full name:** Regina M. KURTIAK, Petitioner, v. WORKMEN’S COMPENSATION APPEAL BOARD (WESTERN SIZZLIN’ STEAK HOUSE), Respondent; WESTERN SIZZLIN’ STEAK HOUSE, Petitioner, v. WORKMEN’S COMPENSATION APPEAL BOARD (KURTIAK), Respondent
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** December 23, 1993
- **Citations:** 160 Pa. Commw. 637; 635 A.2d 732; 1993 Pa. Commw. LEXIS 774
- **Precedential status:** Published
- **Opinion:** Dissent by Friedman
- **Judges:** Palladino and Friedman, Jj., and Narick, Senior Judge
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9648265

## Opinion text

FRIEDMAN, Judge,
dissenting.
I respectfully dissent.
First, I would have initially addressed the employer’s contention that Claimant failed to give timely notice of the carpal tunnel syndrome. If employer’s contention proved correct, there would be no need to address the other issues.
However, I also have a more fundamental disagreement with the majority’s analysis. I would affirm the Board’s conclusion that Employer failed to meet its burden of proving a change in Claimant’s physical condition, as required by Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240 , 532 A.2d 374 (1987). The majority cites our recent decision in Harrell v. Workmen’s Compensation Appeal Board (Circle HVAC), 151 Pa.Commonwealth Ct. 8, 616 A.2d 1051 , petition of allowance of appeal denied, 532 Pa. 645 , 614 A.2d 1142 (1992) for the proposition that “there is no requirement that an employer establish that a claimant’s physical condition has changed in order to meet its burden of proving that the claimant’s disability decreased.” (Maj. Op. at 736.) This statement is not consistent with Kachinski 1 and is not found in Harrell although a review of *647 Harrell’s facts might lead to such a conclusion. I do not believe that Harrell, which is an opinion of this court, should be read in such a way as to contradict the Supreme Court’s teaching in Kachinski . Therefore, I disagree with the majority’s statement of the law and its application to this case. I would affirm the Board.
Accordingly, I dissent.
. Unora v. Glen Alden Coal Co., 377 Pa. 7 , 104 A.2d 104 (1954), relied upon in Kachinski , contains the following quote from Professor Arthur *647 Larson’s work on Workmen’s Compensation Law (Vol. 2, Sec. 57, 10, pp. 2, 3):
... the disability concept is a blend of two ingredients, ... the first ingredient is disability in the medical or physical sense, as evidenced by obvious loss of members or by medical testimony that the claimant simply cannot make the necessary muscular movements and exertions; the second ingredient is do facto inability to earn wages, as evidenced by proof that claimant has not in fact earned anything.
Id. 377 Pa. at 12 , 104 A.2d at 107 . Kachinski required that evidence on medical condition and earning ability be produced separately.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9648265. Public record. Not legal advice.