holding the claimant did not act in good faith when he did not follow through with a car sales position because he thought the position was degrading and car salespeople were deceitful
How later courts described this case
- holding the claimant did not act in good faith when he did not follow through with a car sales position because he thought the position was degrading and car salespeople were deceitful
Written by the judges who cited it.
The opinion
BARBIERI, Senior Judge,
dissenting.
Most respectfully, I disagree with the result reached by the majority in that portion of its opinion designated as “MERITS”, because I believe that the majority has erred in fact finding contrary to the factual determination of the referee. The referee found:
20. That your Referee finds as fact the claimant’s credible testimony establishes he lacked the personality or vocational ability to be a car salesman.
21. That your Referee finds as fact that the job offers made available to the claimant by the defendant did not contain any description of the jobs’ requirements. Therefore, claimant’s failure to follow-up on these offers was reasonable.
Findings of Fact Nos. 20 and 21.
Finding of Fact No. 20 is supported by the record, since there is no testimony that would establish as “suitable” for this Claimant the occupation of car salesman. 1 On the contrary, in support of Finding of Fact No. 20, the vital testimony of the Claimant as to car salesman is as follows:
Q. Now, Mrs. Kearns also mentioned a possible position as a sales or auto sales representative for Bill Pitts’ [sic] Fords.
A. Yes.
Q. Did she mention that to you?
A. Yes.
Q. Did you explore that at all?
A. No.
Q. For what reason? Why didn’t you explore that?
*357 A. Well, I don’t particularly know anything about selling cars as it is. Some of their — maybe you don’t like what I say. Some of this is shady dealing. I don’t go along with it. I would be required to do whatever they tell me to do naturally if I worked for them.
R.R. 163a-164a.
It certainly must be conceded that a referral job must be within the vocational ability of the Claimant; for example, a job opening for an opera singer is not an available employment for one who cannot sing. Here, as to the referral suggested by employer, Claimant is not qualified on the record in this case to fill a salesman’s job. The majority points to no evidence, or other basis for a finding that Claimant can perform as a salesman, a calling which requires certain capabilities which this Claimant lacks. In short, Claimant is not vocationally qualified for a post requiring sales skills, 2 and Employer’s witness who suggested the sales job certainly provided no competent basis on which a finding of vocational qualification could be based. She testified:
Q. In the third survey job you found a job as a car salesman?
A. Yes for Phil Fitts Ford.
Q. What was involved in that job?
A. That was basically selling cars to the public.
Q. What led you to believe that Mr. Pallott was qualified for this position?
*358 A. Well again because it had something to do with cars and I felt he knew about cars and also it was a sedentary and light duty job.
R.R. 81a.
It would appear to me that by implementing the majority opinion on this issue a serious injustice could be visited upon this badly injured and disabled Claimant; also, a result, in my opinion, not justified by the record or any decision of our Courts.
Accordingly, since the employer has failed to demonstrate error in the findings of the referee that the employer failed to prove earning power that would reduce the claimant’s benefits from those for total disability to lesser amounts based upon a properly established resurgence of earning power, I would affirm the order of the Workmen’s Compensation Appeal Board in affirming the decision of the referee on the merits of the case.
. The majority concedes that application of the Kachinski tests require that the "employer provide[d] the Claimant with a suitable job referral ...” (Emphasis added.)
. It should he pointed out also that the sales job offered here provided no compensation that could establish earning power or certain earnings, but was solely on commission, a very unlikely test of earning power for one starting in a suggested sales job, with no experience or demonstrated capabilities or qualifications.
A. ... I next conducted a survey in February of 1980 and found two job openings. The one was a sales representative to sell cars at Phil Fitts Ford and the other job as Security Officer for the Lawrence County Job in New Castle here.
Q. Was the Ford Sales Job an hourly pay job?
A. Commission basis.
R. R. 75a.