Thomas v. Workmen's Compensation Appeal Board

*366Dissenting Opinion by

Judge Craig:

This court should vacate the Workmens Compensation Appeal Boards decision granting the modification petition of the employer, Windsor [sic] Catering Service, to the extent that the board affirmed the referees finding that work was available to Claimant Helen Thomas at which she could earn $65 per week. The case should be remanded for findings relating to the determination of work availability, particularly as it pertains to the job of homebound telephone solicitor.

The employers vocational rehabilitation representative testified that she notified the claimant on March 24, 1982, that she had located a position for her as a home-bound telephone solicitor for Red White and Blue Thrift Stores. The claimants physician indicated that he believed that the claimant was physically capable of performing the duties of that position, which could be performed entirely at her home. She would receive a list of contacts daily from the thrift store and would be responsible for telephoning residents in the Pittsburgh area to arrange for pickup of used clothing and furniture. The salary would be determined by the number of pickups arranged at $1.00 per actual pickup. The representative testified that the average employee earned $65-to-$70 per week, but some employees earned up to $150 per week.

A position may be found to be actually available only if it can be performed by the claimant. In Kachinski v. Workmens Compensation Appeal Board (Vepco Construction Co.), 91 Pa. Commonwealth Ct. 543, 546, 498 A.2d 36, 38-39 (1985), we stated that:

A position may be found to be actually available or within the claimants 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 *367work experience, and other relevant considerations. ...

Here, the findings do not indicate whether the referee considered any factors other than the claimants physical restrictions and limitations.

Although substantial evidence supports the referees determination that the claimant was physically able to perform the duties of a home-bound telephone solicitor, there are other considerations relating to the claimants ability to work as a telephone solicitor which the findings do not address.

The record indicates that the vocational rehabilitation representative testified that, although she believed that the claimant was able to communicate well on the telephone, she could not state whether the claimant had a particular aptitude for working as a telephone solicitor. Additionally, the representative stated that her estimate of expected income was based on the performance of other employees and did not include those who had unsuccessfully undertaken the position. Moreover, the referee failed to indicate whether he considered the added telephone expense, if any, which the claimant could incur. The vocational rehabilitation representative testified that the claimant stated that she would not be able to use her home telephone four hours daily because her husband used it for his contracting business.

In Community Medical Center v. Workmens Compensation Appeal Board, 47 Pa. Commonwealth Ct. 566, 569 n. 1, 408 A.2d 592, 594 n. 1 (1979), this court affirmed the boards determination that a home-bound telephone solicitor position, which also paid on a strictly commission basis, was not suitable work because the vocational specialist could not specify what remuneration could be expected to be earned by a person who was not experienced in telephone solicitation work. There, as here, the vocational rehabilitation specialist *368also admitted that an experienced telephone solicitor would be more successful than an inexperienced solicitor who might be totally unsuccessful.

The Pennsylvania Workmens Compensation Act is intended to benefit the worker and must be construed to effectuate its humanitarian objectives. Krawchuk v. Philadelphia Electric Co., 497 Pa. 115, 439 A.2d 627 (1981). Because jobs which pay solely on a commission basis are inherently risky, findings must make clear the factors which contribute to a determination that work is available within the claimants capabilities and that a specific net amount can be earned as commission. Here, the findings do not indicate the basis for the referees determination that the claimant could earn— which apparently means clear—$65 per week as commission.

Accordingly, the boards order should be vacated to the extent that it affirmed the referees finding .that work was available to the claimant at which she could earn $65 per week. This case should be remanded for the development of findings to indicate the factors contributing to the determination of work availability, including a substantiation of the claimants net earning capacity as a commission-paid employee in the telephone solicitor position, taking into consideration any possible expenses—such as telephone costs—to be deducted.

As to the majority’s disposition of the board’s order changing the effective date of modification, there can be no disagreement.