The opinion
FRIEDMAN, Judge
dissenting.
I must respectfully dissent because, unlike the majority, I agree with Richard Crisman (Claimant) that Cytemp Specialty Steel's (Employer) offer of a full-time position as “Fire Watch” did not constitute a good faith effort to return Claimant to productive employment justifying a modification of workers’ compensation benefits under Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240 , 532 A.2d 374 (1987).
In concluding otherwise, the majority relies on Ryan v. Workmen’s Compensation Appeal Board (Port Erie Plastics, Inc.), 162 Pa.Cmwlth. 411 , 639 A.2d 866 (1994), in which this court held that a “no work position”, although “irregular,” was, nonetheless, still “available” within the meaning of Kachinski . Reluctantly, I must acknowledge Ryan’s holding; however, for the following reasons, I believe that Ryan was incorrectly decided and is contrary to our supreme court’s opinion in Kachinski .
In Ryan , the employer made a “no work position” available to the claimant. The position required the claimant to report to the workplace and simply put in time sitting or standing in a designated spot, doing no work whatsoever, for which the employer would pay the claimant an amount equal to her pre-injury wage. The referee 1 concluded that the “no work position” was not a good faith offer of suitable and available work and, thus, declined to grant the employer a suspension of benefits based on the claimant’s refusal to report to such a position. However, the Workmen’s Compensation Appeal Board (WCAB) determined that the referee’s conclusion was error and reversed. On appeal, this court affirmed the WCAB. In doing so, we simply quoted the four-pronged procedure set forth by our supreme court in Kachinski to govern the return to work of injured employees. Then, without further discussion of the Kachinski requirements, we determined that the case was controlled by Bennett v. Workmen’s Compensation Appeal Board (McCreary Tire), 150 Pa.Cmwlth. 525 , 616 A.2d 75 (1992), based on a perceived analogy between the situation in Ryan and that in Bennett . I believe that the analysis used in Ryan was flawed.
First, I note that a mere recitation of the four prongs of Kachinski , without further elaboration, fails to give a clear picture of what is required for an employer to establish that a job is actually available to a claimant or that a job referral was made in good faith. Indeed, our supreme court saw the need to offer further guidance on the matter and, immediately after setting down the four procedural steps, 2 explained:
*771 Obviously, the viability of this system depends on the good faith of the participants. The referrals by the employer must be tailored to the claimant’s abilities and be made in a good faith attempt to return the injured employee to productive employment, rather than a mere attempt to avoid paying compensation. By the same token, employees must make a good faith effort to return to the work force when they are able, and their benefits can be modified for failure to follow up on referrals or for willfully sabotaging referrals. If an employee refuses a valid job offer his benefits can also be modified if it is found he had no basis upon which to do so.
Kachinski, 516 Pa. at 252 , 532 A.2d at 380 (emphasis added) (citations omitted). Despite its relevance to the issue in Ryan , this court failed to mention this additional language from Kachinski and, thus, never considered whether the “no work position” offered by the employer in Ryan represented “a good faith attempt to return an injured employee to productive employment.” Instead, the majority in Ryan simply relied on Bennett , 3 stating:
In Bennett, this Court held that a work position offered to the claimant by a third party, which the employer agreed to finance, was suitable and available work for purposes of the Act.[ 4 ] Over [cjlaimant’s argument that the offered position was a “sham” position created to avoid paying compensation,this Court stated the following:
While we acknowledge that the financing arrangement is irregular, we cannot conclude that the position was not “available” within the meaning of Ka-chinski and its progeny.
Bennett, [ 150 Pa.Cmwlth. 525 ] 616 A.2d at 78 (1992).
Similarly, here, although the “no work position” offered by [ejmployer was irregular, we cannot conclude that said position was not “available” within the meaning of Kachinski.
Ryan, 639 A.2d at 868 . Unlike the majority in Ryan , I fail to see the similarity between Bennett and Ryan .
In Bennett , although the financing arrangement was irregular, the job itself was genuine. Indeed, in Bennett , we stressed the fact that the prospective employer testified as to the position’s duties and training possibilities, as well as the employer’s expressed need to have someone in the *772 position. We stated that, in that context, the fact that the position was predicated on the employer’s financing offer does not evidence bad faith precluding the grant of the suspension of benefits. The situation in Ryan was very different. In Ryan , as in the present case, it was not the means of financing the job that was irregular, but the “job” itself which was irregular because, in fact, it was not a real job at all, but, rather, a “sham” created to avoid paying benefits to the claimant. Because I believe that the majority in Ryan mistakenly relied on Bennett to reach an incorrect result, I also believe that the majority here improperly relies on Ryan to govern the outcome in this case.
I wish to emphasize that I agree that a claimant’s mere expression of dissatisfaction with a particular job as demeaning or unsuitable does not excuse him from applying for a proffered position in good faith. See, e.g., Hendry v. Workmen’s Compensation Appeal Board (Miller & Norford, Inc.), 133 Pa.Cmwlth. 28 , 577 A.2d 933 (1990). However, our supreme court clearly contemplated that both employees and employers act in good faith with respect to an injured employee’s return to work. This means that an employee may not simply refuse alternative employment that would justify a reduction in benefits any time he considers the proposed job unsuitable; it also means that, to warrant a reduction in benefits, an employer must refer employees to a job that represents productive employment rather than invent a humiliating and meaningless no work position “to avoid paying compensation”. Kachinski, 516 Pa. at 252 , 532 A.2d at 380 . Athough a claimant’s personal feelings about a particular job are irrelevant, State Products Corp. v. Workmen’s Compensation Appeal Board, 61 Pa.Cmwlth. 366 , 434 A.2d 207 (1981), a elaim-ant, at the very least, has a right to expect referral to genuine employment. To hold otherwise would make a mockery of the workers’ compensation scheme.
Having stated that a claimant may not decide for himself when a job is to his liking and refuse to apply for those positions he feels are demeaning, I point out that this is not what happened in the present case. Here, Claimant did not refuse to apply for the position of “Fire Watch;” in fact, Claimant previously held that position for ten hours a week. Recognizing what it was like to do this “work” for two hours a day, Claimant knew that performing this same “work” for eight hours a day was nothing more than “sham” employment, requiring no duties other than to sit in one place all day, every day, and look for fires which never come. 5 Claimant here, having “worked” at the “Fire Watch” position on a part-time basis, was familiar with the lack of job duties. He did not refuse to accept the position on a full-time basis because of low pay or status; rather, he objected because, in fact, it was not a job at all. Because I do not believe that this no work position is a good faith offer of suitable and available work, I would hold that Employer had failed to meet its burden under Kachinski and, accordingly, I would reverse the grant of Employer’s Modification Petition based on Claimant’s refusal to accept this position. ,
Judge McGINLEY joins in this dissent.
. Prior to 1993, workers' compensation judges were called referees.
. In Kachinski , our supreme court set forth the following four-pronged procedure for determining whether a modification of benefits is appropriate:
1. The employer who seeks to modify a claimant’s benefits on the basis that he has recovered some or all of his ability must first produce medical evidence of a change in condition.
2. The employer must then produce evidence of a referral (or referrals) to a then open job (or jobs), which fits in the occupational category for which the claimant has been given medical clearance, e.g., light work, sedentary work, etc.
3. The claimant must then demonstrate that he has in good faith followed through on the job referral(s).
4. If the referral fails to result in a job then claimant’s benefits should continue.
Id. at 252 , 532 A.2d at 380 . It is apparent that these procedural steps, by themselves, offer only a partial insight into what constitutes "available” employment under Kachin-ski. For a more complete understanding of what our supreme court intended, we must look to the court’s clarification and refine *771 ment of the term "available employment,” found elsewhere in the opinion.
This court, too, has provided direction for determining whether particular employment is actually available to an injured employee. With respect to the second prong of Kachinski , this court, in Titusville Hospital v. Workmen’s Compensation Appeal Board (Ward), 122 Pa.Cmwlth. 619 , 552 A.2d 365 (1989), stated that factors to be considered in determining whether work is available to claimant or within claimant’s reach include claimant’s physical limitation, age, intellectual capacity, prior work experience, and other relevant considerations, such as the claimant's place of residence. Ultimately, our inquiry is whether a specific job is appropriate for a reasonable person in the position of the claimant. Goodwill Industries of Pittsburgh v. Workmen’s Compensation Appeal Board (Friend), 158 Pa.Cmwlth. 292 , 631 A.2d 794 (1993). Of course, as part of any consideration to determine whether a particular job is actually available to the claimant, we must decide whether the job itself represents the employer’s good faith offer of productive employment.
. In Bennett , an injured employee released to perform restricted light duty work refused an offer to work at a fur shop because he deemed it unsuitable. The referee, affirmed by the WCAB, determined that the employer was entitled to a suspension of benefits based on the claimant’s refusal to accept a valid job offer at pre-injury wages. On appeal to this court, the claimant argued that, because the job offer was prompted by the employer’s agreement to finance the position at wages equal to the claimant’s pre-injury wage, the position was a "sham” created by the employer to avoid paying compensation. We disagreed. Although we acknowledged that the financing arrangement was irregular, we stated that we could not conclude that the position was not available within the meaning of Kachinski .
. The Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2626.
. The majority notes Claimant's admission that preventing or reporting the possibility of fires is a duty and responsibility. (Majority op. at 769 n. 7.) However, I do not believe that Employer can transform a “no work” job into productive employment simply by calling it a "Fire Watch” position. As Claimant points out, anyone working for Employer shared the duty to prevent or report the possibility of fire, and Claimant, sitting stationary in a trailer for the entire day, acted as nothing more than a human smoke alarm.