# Harrell v. Workmen's Compensation Appeal Board > Commonwealth Court of Pennsylvania · November 12, 1992 · 151 Pa. Commw. 8 URL: https://www.frixlaw.com/law-library/cases/9748841 ## Case - **Full name:** Anthony HARRELL, Petitioner, v. WORKMEN’S COMPENSATION APPEAL BOARD (CIRCLE HVAC), Respondent - **Court:** Commonwealth Court of Pennsylvania - **Decided:** November 12, 1992 - **Citations:** 151 Pa. Commw. 8; 616 A.2d 1051 - **Precedential status:** Published - **Opinion:** Dissent by Barry - **Judges:** Craig, Palladino, Barry - **Cited by:** 3 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/9748841 ## Opinion text BARRY, Senior Judge, dissenting. The majority’s conclusion that the employer, Circle HVAC (CHVAC), made a genuine, good faith effort to return the claimant, Anthony Harrell (Harrell), to the work force is erroneous. We should hold that the employer has failed its *16 burden of proof on the second point of the four step Kachinski test and reverse. Our Supreme Court recognized that any effort to rehabilitate a claimant receiving workmen’s compensation disability benefits is doomed to failure unless both sides, claimants and employers, proceed in good faith. See, Kachinski, 516 Pa. 240, 252 , 532 A.2d 374, 380 (1987) (“Obviously, the viability of this system depends on the good faith of the participants.”) The stringent standard by which the good faith of claimants is measured is clear. A claimant who fails to follow through on a single valid job referral acts in bad faith. Beres v. Workmen’s Compensation Appeal Board (Lawson’s Convenience Store), 140 Pa.Commonwealth Ct. 497, 593 A.2d 939 (1991). It is also clear that the final determination of whether a position is actually within a claimant’s capabilities, and thus available, is for the referee. Farkaly v. Workmen’s Compensation Appeal Board (Baltimore Life Insurance Co.), 516 Pa. 256 , 532 A.2d 382 (1987). These two principles combine to require a claimant to pursue every position referred by the employer. Claimants who refuse to follow up on any job referral run the risk that their benefits will be modified or terminated if a referee subsequently determines that the referred position was within their capabilities. Under the four step test announced in Kachinski , however, the issue of the claimant’s good faith does not arise until the employer has produced evidence of a change in condition and a referral within the claimant’s capabilities. See Kachinski, 516 Pa. at 252 , 532 A.2d at 830 (indicating that the burden of proof shifts to the claimant only after the employer has produced evidence on the first two steps). The majority treats the employer’s obligation to act in good faith as an implicit requirement of the valid job referral portion of the employer’s burden of proof. I agree that it is the employer’s obligation to prove its own good faith before the burden shifts to the claimant. The employer initiates the rehabilitation effort in the overwhelming majority of cases. If an employer acts in bad faith, the entire subsequent chain of events is colored by the employer’s actions. *17 When concluding that Mr. Stackhouse, CHVAC’s rehabilitation expert, acted in good faith in the case at hand the majority relies upon the following facts: At least six of the jobs referred were within Harrell’s physical capabilities. Mr. Stackhouse testified that he considered Dr. Williams’ restrictions and recommendations in all job searches. To complete the picture, I would add the following facts which were conceded by Mr. Stackhouse: Despite the availability of aptitude testing at Mr. Stackhouse’s firm and the admitted appropriateness of such testing in the rehabilitation process, no tests were administered to Harrell. (Stackhouse Deposition [S.D.], 5/2/88, pp. 93-95.) Rather, the assessment of Harrell’s job capabilities was based upon the medical reports of Drs. Hoffman and Williams and a 90 minute interview with Harrell (S.D., 5/2/88, pp. 92, 98-99). Mr. Stackhouse generally described the methods he used to locate potential openings for Harrell as follows: Generally I just perused the labor market. In that respect it might be establishing contacts with an employer directly; of course, noting publications for advertised openings be it in a trade magazine, a newspaper, that kind of thing; also establish a phone contact with various employers in an effort to inquire about their possible openings. (S.D., 2/18/88, p. 19.) When cross-examined about how specific opportunities were located, however, Mr. Stackhouse could not identify one position which had been identified other than by reading the help wanted ads in the local newspapers. (S.D., 5/2/88, pp. 83-87.) Dr. Williams, one of CHVAC’s examining physicians, indicated that commercial driving was inappropriate for the claimant. Dr. Hoffman, another examining physician employed by CHVAC, restricted Harrell from commercial driving. Mr. Stackhouse was aware that this activity was outside Harrell’s medical limitations as stated by both Doctors. (S.D., 5/2/88, pp. 98-99.) Despite this knowledge and his professed use of the medical restrictions and recommendations in the job search, Mr. Stackhouse referred Harrell to job openings at four different courier services. (S.D., 2/18/88, pp. 34-47.) *18 Those courier service positions involved commercial driving and Mr. Stackhouse was aware that such driving was required when he referred Harrell to the positions. (S.D., 5/2/88, pp. 96-99.) Mr. Stackhouse located a possible job opening for Harrell at the Insigner Machine Co.; upon initial contact with the company, Mr. Stackhouse did not adequately describe Harrell’s medical limitations. (S.D., 5/2/88, pp. 84-85.) Mr. Stackhouse referred Harrell to Insigner and was subsequently informed that Insigner did not believe that Harrell was an acceptable candidate for the position. (S.D., 5/2/88, p. 84.) Mr. Stack-house never informed Harrell of Insigner’s position, stating that he wanted “to give Mr. Harrell the benefit of the doubt,....” (S.D., 5/2/88, p. 85.) I believe this conceded course of conduct by CHVAC constitutes bad faith. The Kachinski Court cited Unora v. Glen Alden Coal Co., 377 Pa. 7 , 104 A.2d 104 (1954), when noting that an employer must tailor its job referrals to the disabled claimant’s abilities. Kachinski, 516 Pa. at 252 , 532 A.2d at 380 . Unora describes the close fit that is required as follows: [A] consideration and weighing (in addition to the anatomical facts) of such factors as the claimant’s mental outlook, his industrial background, his education, the occupation, if any, he could perform where his particular physical impairment would not be a total bar.... Unora, 377 Pa. at 13 , 104 A.2d at 107 . It is these factors, over and above the medical restrictions, which aptitude tests are designed to measure. Yet despite their admitted availability, CHVAC, through Mr. Stackhouse, chose not to give Harrell the benefit of such tests in this rehabilitation effort. 1 Without *19 an accurate analysis of these other factors, CHVAC could not appropriately tailor the job referral as required by Kachinski More importantly, Mr. Stackhouse admittedly referred Harrell to a number of jobs involving duties which had been prohibited, 2 or listed as not recommended, 3 by CHVAC’s examining physicians. I fail to see how such referrals can be considered good faith. Based upon the knowledge available to CHVAC at that time, 4 it is obvious that the restrictions and recommendations of those examining physicians were disregarded when the referrals to the courier service positions were made. At a minimum, good faith obligates CHVAC to abide by the limitations imposed by its own medical experts. Finally, the referral to the position at Insigner Machine Co. cannot be construed as a good faith effort to return Harrell to productive employment as required under Kachinski Accepting Mr. Stackhouse’s testimony at face value, he referred Harrell to a position before it was determined that the position was appropriate given Harrell’s medical limitations. Then he failed to inform Harrell that Insigner deemed him an unacceptable candidate. Once Mr. Stackhouse was aware of the stance taken by Insigner, he knew that any application for the *20 position made by Harrell was doomed to failure. Rehabilitation consists of locating appropriate potential opportunities to return the disabled claimant to productive work. Kachinski 516 Pa. at 252 , 532 A.2d at 380 . Given Insigner’s position, any follow up- on this referral by Harrell would have been a wild goose chase. It could be argued that the failure to provide aptitude testing, or the almost exclusive reliance on the help-wanted ads, standing alone, do not demonstrate bad faith. It is less arguable that multiple referrals to positions which involve duties exceeding the medical recommendations of CHVAC’s own physicians, considered in a vacuum, could be construed as good faith. The referral to the Insigner position before it had been determined appropriate and subsequent failure to disclose the information regarding Insigner’s determination that Harrell was an unacceptable candidate for the position is equally suspect. If one failure to follow through on a valid job referral by a claimant constitutes bad faith, the conduct conceded by CHVAC,' whether considered in isolation or as a whole, must constitute bad faith. Our Supreme Court has condemned such sham rehabilitation as “a mere attempt to avoid paying compensation.” Kachinski, 516 Pa. at 252 , 532 A.2d at 380 . In summary, the record, read as a whole, indicates that CHVAC acted in bad faith. An employer who acts in bad faith cannot meet its burden of proof on the second step of the Kachinski test. The issue of the claimant’s good faith does not arise until the employer presents evidence satisfying the first two requirements. I would reverse the decision and deny CHVAC’s petition. The decision of the Board should be reversed and CHVAC’s petition should be denied. . The Unora Court also noted that positions which are appropriate for disabled claimants are not easily located, colorfully referring to them as "employment plums that do not often dangle from the tree of everyday economics”. Unora, 377 Pa. at 13 , 104 A.2d at 107 . While I recognize that help-wanted ads are a legitimate source of available positions, I question whether the overwhelming reliance on such ads which admittedly occurred here represents an adequate search for such rare opportunities. . By Dr. Hoffman. . By Dr. Williams. . As noted above, the ultimate determination of whether or not a referred position is within a claimant’s abilities lies with the referee. Knowledge of the result of such determinations is not available at the time the referrals are made. The determination of whether or not the employer acts in good faith, however, must be made by viewing its actions in light of its knowledge at the time of those actions. To measure good faith based upon the referee's decision on the appropriateness of the referral would vitiate the tailoring requirement of Kachinski . An employer could refer a claimant to any position and argue that such a referral was not bad faith because, until the referee made the decision, they could not know that the referral was beyond the claimant’s capabilities. Nor is the use of such a time frame unreasonable in light of how the good faith of claimants is measured. As noted above, a claimant must follow up on every job referral or run the risk of subsequent modification or termination. Measuring the employer’s good faith by the knowledge available at the time of referral should result in all such referrals being at least arguably within the claimant's capabilities. We can then measure the claimant’s good faith and willingness to return to the work force by their response to arguably appropriate referrals. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9748841. Public record. Not legal advice.