# J.A. Jones Construction Co. v. Workers' Compensation Appeal Board

> Commonwealth Court of Pennsylvania · October 2, 2001 · 784 A.2d 280

URL: https://www.frixlaw.com/law-library/cases/9753267

## Case

- **Full name:** J.A. JONES CONSTRUCTION COMPANY and Aetna Life & Casualty, Petitioners, v. WORKERS’ COMPENSATION APPEAL BOARD (NELSON), Respondent
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** October 2, 2001
- **Citations:** 784 A.2d 280
- **Precedential status:** Published
- **Opinion:** Concurrence by Friedman
- **Judges:** Doyle, Friedman, Mirarchi
- **Cited by:** 4 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/9753267

## Opinion text

FRIEDMAN, Judge,
concurring.
I concur in the result reached by the majority here; however, because the issue presented in this case is one of first impression, I believe that we must be particularly careful in our handling of the matter. In this regard, I am concerned that, as written, the case may be misinterpreted and misapplied in the future. Specifically, I am troubled by the way that the majority expresses both the issue before this court and its resolution. Here, the majority states:
The issue presented: where a claimant successfully petitions for a modification of benefits from partial to total disability because of a worsening of his condition, does the claimant receive total disability benefits for a closed period of time only and return to partial disability because he has returned to baseline, or does the employer have to again establish job availability in order for the claimant's benefits to be modified from total to partial disability.
We resolve this issue by holding that [the e]mployer is not obligated to again establish job availability in order for [the claimant's benefits to be modified from total to partial disability.
(Majority op. at 282.)
Although, in setting forth the underlying factual scenario, the majority explains that *284 Jerry Nelson’s (Claimant) total disability previously was modified to partial disability benefits because of Claimant’s bad faith refusal of J.A. Jones Construction Company’s (Employer) offer of available light-duty work, (see majority op. at 281-282), the majority omits this crucial element of bad faith in its subsequent phrasing of the issue. As a result, I believe that the holding here may be, and I fear will be, applied to factual situations not intended to be encompassed within that holding. I, therefore, suggest that the bar would have been better served if we had adopted the WCJ’s Conclusion of Law, No. 2 as a clear and concise expression of the holding in this case. As quoted in the majority opinion, that Conclusion provides in pertinent part:
Once it has been established that work was available to the claimant and the claimant refused such work in bad faith, the fact of job availability does not have to be reestablished after an intervening period of temporary total disability.
(WCJ’s decision of April 21, 1997 at 8) (emphasis added).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9753267. Public record. Not legal advice.