holding that employee’s failure to pursue job referrals procured by employer provides reason to terminate disability benefits
How later courts described this case
- holding that employee’s failure to pursue job referrals procured by employer provides reason to terminate disability benefits
- stating injured employee’s place of residence is a relevant consideration in determining whether an offer is actually available to the employee
- noting that "[o]bviously the viability of this system [of determining job availability] depends on the good faith of the participants"
- noting that “[ojbviously the viability of this system [of determining job availability] depends on the good faith of the participants”
Written by the judges who cited it.
The opinion
LARSEN, Justice, concurring.
I join in the result (affirmance of the Commonwealth Court) reached by the majority. However, I do not accept the “guidelines” enunciated by the majority today which establish that an employer may meet its burden of proving that a claimant's benefits should be modified from total to partial disability by producing medical evidence of an improvement in the claimant’s condition and by producing evidence of an actually available job referral “which fits in the occupational category for which the claimant has been given medical clearance, e.g., light work, sedentary work, etc.” Majority op. at 252.
While the majority acknowledges that “the referrals by the employer must be tailored to the claimant’s abilities,” under Unora v. Glen Alden Coal Co., 377 Pa. 7, 13 , 104 A.2d 104 (1954). I fail to see how a referral to such broadly defined, generic categories such as “light work, sedentary work, etc.” accomplishes this purpose, or how it fulfills the *255 employer’s obligations under Unora to show an actual referral tailored to the claimant’s abilities. I believe the Commonwealth Court reached the proper accomodation between an employer’s obligation to an injured employee under the Workmen’s Compensation Act and an employee’s obligation to accept actually available employment which that employee is capable of performing, and that court properly interpreted and applied this Court’s decisions in Unora, supra and Barrett v. Otis Elevator Co., 431 Pa. 446 , 246 A.2d 668 (1968), when it stated:
An employer, or its insurance carrier, seeking to modify a workmen’s compensation agreement and asserting that a claimant’s disability is no longer total has the burden to prove that the claimant’s condition of disability has abated and that work is available which the claimant is capable of doing. Barrett v. Otis Elevator Co., 431 Pa. 446 , 246 A.2d 668 (1968)____ The work proposed for a partially disabled claimant must be actually available, that is, in fact within his reach, and it must be brought to his notice by the employer. A position may be found to be actually available, or within the claimant’s reach, only if it can be performed by the claimant, having regard to his physical restrictions and limitations, his age, his intellectual capacity, his education, his previous work experience, and other relevant considerations, such as his place of residence. The employer does not have to produce a job offer, ... but positions which are pie-in-the-sky, often described by vocational experts as sedentary or light or requiring little lifting, do not without additional description of their physical demands, establish actual availability of work which a claimant with particular physical limitations can do —
91 Pa.Cmwlth. 543 , 498 A.2d 36, 38-39 (1985) (emphasis added; citations omitted).
Accordingly, I would affirm based upon the able opinion of The Honorable Theodore O. Rogers of the Commonwealth Court.