Backowski v. Workmen's Compensation Appeal Board

*349Dissenting Opinion by

Judge Doyle:

Respectfully, I must dissent. This case presents an unusual factual situation because the injury occurred on October 13th and 16th in 1979, but no claim petition was submitted until March 18, 1981. ' '

After Claimant returned to work following his injuries, he performed his normal duties for approximately one month and then was switched to a counter job entailing light duty work. Claimant continued to receive his full pay throughout the time he was injured and while he was performing his counter'job. Although the employer was notified of the injuries, no claim petition was filed by Claimant until seventeen months after the injury.

On December 17, 1979, Claimant was laid off for economic reasons. On approximately March 1, 1980, the employer’s general layoff ended, but the employer did not recall Claimant for work (nor did Claimant ask to be recalled). In January, 1980, however, Claimant enrolled in a computer-programming school and completed the course in' May, 1981. On April 30, 1981, a month before he graduated after one and one-half years of training in computer programming, Claimant became employed by a different firm as a manager of data processing without a loss of earnings. (Referee’s Findings Nos. 8, 10, 11)

As indicated, Claimant filed his claim petition a full seventeen months after the injury and only one and one-half months before his graduation from the training in his new occupation. He is contending now that he is entitled to a suspension of compensation from October 17, 1979, through October 22, 1979, and for an indefinite period from April 30, 1981, and that he is further entitled to full compensation for total disability from December 18, 1979 through April 20, *3501981. For all but one month of this latter period he was going to school full time.1

When the majority opinion here imposes on the employer'an obligation to make known to Claimant the availability of sedentary job offerings, it seems to me that it imposes on the employer an impossible task. The employer had no knowledge of Claimant’s claim when those, jobs were available. Claimant’s claim had no,t yet been filed. Therefore, why would the employer find it necessary to inform Claimant of their availability?

. The referee found that Claimant “failed to adduce competent medical evidence to establish a legal nexus between said injury and his alleged disability.” (Finding No. 14). 'The Board reversed the referee because “ [t]he medical testimony by both parties clearly established that claimant’s injury did prevent him returning to his job in his former capacity.” But the Board went on to affirm the referee and deny benefits on the basis that “ [t]he testimony also indicated that the claimant was able to work in sedentary employment as long as he refrained from lifting heavy objects.” The Board found that the employer “clearly established by sufficient, competent evidence that there was work available which the claimant was capable of performing. ’ ’ Claimant never challenged this job availability, but challenged instead his ability to perform these jobs because of their various physical requirements.

. . Succinctly and in summary, it is my opinion that when an employer is in a situation where it is not aware of an employee’s claim, and the employee has *351not established that he or she has been injured or that any disability has been suspended, the employer should not be made to meet an impossible burden to establish that it made known to the employee the availability of work which was not sought.

The referee, in finding number 16, found: “The reasonable inference is that claimant preferred to complete his education in computer programming rather than return to work for employer or for any other firm.