Brown v. Workmen's Compensation Appeal Board

KELLEY, Judge.

Ruby Brown (claimant) suffered a work-related injury to her shoulder on January 27, 1988, while employed by Village Thrift Stores, Inc. (employer). Employer provided claimant with total disability benefits pursuant to a notice of compensation payable. On April 25, 1990, employer filed a modification petition alleging that claimant had recovered sufficiently from her injury to be capable of returning to work available in the community. At the hearings before a referee, both parties presented the testimony of medical experts and employer introduced the testimony of a vocational expert. The referee found the testimony of employer’s witnesses to be credible and suspended claimant’s benefits based on the availability of a job with wages greater than claimant’s pre-injury wages. Claimant appealed to the Workmen’s Compensation Appeal Board which affirmed. This appeal followed.1

This court’s scope of review is to determine if constitutional rights have been violated, an error of law has been made, or necessary findings of fact are not supported by substantial evidence. Russell v. Workmen’s Compensation Appeal Board (Volkswagen of America), 121 Pa.Commonwealth Ct. 436, 550 A.2d 1364 (1988).

*1038Claimant’s sole argument is that the referee erred in concluding that claimant did not act in good faith. To support a modification petition, an employer must produce medical evidence of a change in claimant's condition establishing that claimant has recovered some or all of the ability to work, and then must produce evidence of employment available to the claimant which falls within claimant’s limitations. Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987). Once the employer has produced evidence of job availability within claimant’s physical and occupational restrictions, the claimant must then demonstrate that he or she has followed through on the referrals in good faith. Id. Failure to demonstrate good faith follow through on job referrals will result in a modification of benefits.

Employer’s vocational expert testified that she found five positions within claimant’s physical and occupational restrictions. Claimant applied for two of those positions but was not hired due to the availability of a more qualified applicant. Claimant failed to apply for the remaining three positions.

In Finding of Fact No. 6, the referee stated as follows with respect to the three positions for which claimant did not apply:

[Cjlaimant ... testified that she went to the location of the Central Parking System position but was advised that applications were not being taken. She testified that she did not attend or apply for the position at E-Z Park due to not having carfare. She further testified that she failed to apply for the position at the 7901 Apartments due to the length of travel and the geographic location of that site. I find the testimony of the claimant to be credible in this case and adopt it as the facts of the case.

The referee then went on to state the following in Conclusion of Law No. 5:

Claimant’s testimony that she was without carfare to go to a job interview at E-Z Park is not a legally sufficient excuse and as such as to this job she failed to act in good faith in following up on the referral. I therefore conclude that defendant is entitled to a modification of claimant’s benefits in accordance with the wages available at the E-Z Park position_

We agree with claimant’s argument that the referee erred in concluding that she did not act in good faith with respect to the E-Z Park position. The referee adopted claimant’s testimony as the facts of the case and claimant testified that she did not apply for the E-Z Park position because she did not have carfare. Once the referee found as a fact that claimant did not apply for the position because she did not have the money to obtain transportation, we fail to see how the referee could then conclude that claimant did not act in good faith. The referee made no other finding which would indicate that claimant had an alternative means of transportation. Because there is nothing in the referee’s findings which would support a conclusion that claimant acted in bad faith, we must conclude that the referee erred in this regard.

Accordingly, we will reverse the order of the board.

ORDER

NOW, this 20th day of December, 1993, the order of the Workmen’s Compensation Appeal Board, dated April 30, 1993, at No. A92-1987, is reversed.

. This case was reassigned to this author on October 29, 1993.