Kachinski v. Workmen's Compensation Appeal Board

Dissenting Opinion by

Judge Doyle:

I respectfully dissent. The record contains descriptions of the positions at Keystone Warehouse (available February 4, to February 10, 1983), Globe Store (available May 25, 1983 to June 1, 1983), Allied Services (available May 13 to 19,1983) and the Jewish Community Center (available April 28 to May 4, 1983). There is also medical testimony describing Claimant’s physical limitations. The majority opinion seeks "to compel not only the testimony of medical and vocational experts, but also imposes on the burdened party (Employer) the requirement that one of the experts state, via use of specific hypothetical questions, that Claimant can, in fact, perform the particular jobs. This testimony, in my view, is not needed; rather, I believe that once adequate medical and vocational evidence is presented, a referee, as factfinder, can assess the job duties and medical restrictions and determine whether a particular job can be performed by a claimant. Thus, I do not perceive Dr. Cooper’s failure to testify on the Globe Store, Allied Services and Jewi'sh Community Center positions to be fatal to Employer’s case.

Additionally, I do not agree that the hypothetical question with respect to the Keystone Warehouse position" was inadequate. The vocational expert classified the position as a sedentary one. The job description which was entered into evidence states, “[tjakes phone *551orders for automotive parts; prepares billing statements using price catalogs, computes cost -with use of calculator, records on billing statement. ’ ’ I believe that given this job description the referee could draw upon common experience in determining whether Claimant could perform the job. I see no reason to require testimony on obvious matters such as one’s ability to talk on the telephone or consult a catalogue while standing or sitting. In short, I believe first, that a referee can “link” the testimony of vocational and medical experts in assessing whether a claimant can perform a particular position (and while hypothetical questions may be used they are not required) and second, that in examining job duties well known facts gained by common experience can be taken into account without direct evidence of record.

Finally, I also express my disagreement with the majority’s statement that equates pie-in-the-sky positions with sedentary ones. As I read 4156 Bar Corp. v. Workmen’s Compensation Appeal Board, 63 Pa. Commonwealth Ct. 176, 438 A.2d 657 (1981), the case holds only that a list of positions does not establish actual availability. This is undisputed; however, proof of an existing sedentary position could form the basis for establishing availability if a claimant’s only limitation were that he or she remain seated while working. Accordingly, I cannot agree with either the proposition stated or the authority cited.