Harrell v. Workmen's Compensation Appeal Board

PALLADINO, Judge.

Anthony Harrell (Claimant) appeals from an order of the Workmen’s Compensation Appeal Board (Board) affirming in part and vacating and reversing in part a referee’s decision which modified Claimant’s benefits to partial disability. We affirm.

Claimant sustained a back injury on August 24, 1984 while working for Circle HVAC (Employer). Claimant received *11total disability benefits pursuant to a November 8,1984 Notice of Compensation Payable.

On June 8, 1987, Employer filed a modification petition alleging that Claimant’s total disability had decreased to partial disability and that work was available to Claimant within Claimant’s capabilities. Claimant filed a timely answer denying that his disability had decreased. Claimant’s total disability compensation continued until the referee granted a partial supersedeas in a November 3, 1987 interlocutory order reducing Claimant’s compensation to partial disability.

In support of its petition, Employer presented the deposition testimony of Dr. John T. Williams, Employer’s evaluating physician. Dr. Williams examined Claimant on December 16, 1986. Based upon his examination and review of medical records, Dr. Williams diagnosed Claimant as suffering from post-op lumbar laminectomy with residual absence of the left ankle jerk. Dr. Williams was of the opinion that Claimant could not return to his previous laborious work as an installer of air conditioning and heating units, but could resume work at a limited capacity with restrictions.

Employer also presented the deposition testimony of Harry Robert Stackhouse, a vocational rehabilitation counselor. Mr. Stackhouse testified that he located and informed Claimant of available job opportunities, taking into consideration Claimant’s age, education, past work experience, transferable skills, geographic area, and physical restrictions. Mr. Stackhouse’s testimony indicates that six of the job opportunities which he located were actually approved by Dr. Williams. Mr. Stack-house also testified that Claimant failed to pursue several available job opportunities, and declined several job offers.

Claimant presented the deposition testimony of Dr. Jerry Ginsberg, Claimant’s treating physician. Based upon his examinations of Claimant and review of x-ray reports, Dr. Ginsberg diagnosed Claimant as suffering from chronic unresolved post traumatic lumbar strain and sprain, with bulging discs at L4-L5 and scar tissue at L5-S1. Dr. Ginsberg was of the opinion that Claimant’s pain would be permanent, and that Claimant’s activities should be restricted.

*12The referee was not persuaded by Dr. Ginsberg’s testimony, and chose to rely on Dr. Williams’ and Mr. Stackhouse’s testimony. The referee found that Claimant did not exercise good faith in following through on job referrals. The referee modified Claimant’s benefits to partial disability and directed Employer to pay Claimant’s litigation costs.

Claimant appealed to the Board alleging that the referee’s findings were not supported by substantial evidence and were contrary to law. Employer also appealed to the Board contending that the referee erred by ordering Employer to pay Claimant’s litigation costs.

The Board affirmed the modification of benefits, but vacated and reversed the assessment of litigation costs against Employer. On appeal to this court, Claimant argues that the Board erred by concluding that alternative employment was actually available to Claimant within his physical restrictions, capabilities, and vocationally relevant factors because: 1) Employer failed to sustain its burden of proving a change in Claimant’s medical condition, and 2) Employer failed to sustain its burden of proving it referred Claimant to jobs that were within Claimant’s physical capabilities.1 Our scope of review is limited to determining whether an error of law was made, constitutional rights were violated, or crucial findings of fact were 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).

Where, as here, the Board does not take any additional evidence, the referee is the ultimate factfinder, whose findings, if supported by substantial evidence, will not be disturbed on appeal. Northeastern Hospital v. Workmen’s Compensation Appeal Board (Turiano), 134 Pa. Commonwealth Ct. 164, 578 A.2d 83 (1990). Substantial evidence is *13any competent evidence that a reasonable mind may accept as adequate to support the findings of the factfinder. Krumins Roofing & Siding v. Workmen’s Compensation Appeal Board (Libby and, State Workmen’s Insurance Fund), 133 Pa. Commonwealth Ct. 211, 575 A.2d 656 (1990).

Claimant argues that the Board erred by concluding that work was actually available to Claimant because Employer failed to meet the first two requirements of Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987). Kachinski sets forth a four part test to determine whether work is available to a claimant:

1. The employer who seeks to modify a claimant’s benefits on the basis that he has recovered some or all of his ability must first produce medical evidence of a change in condition.
2. The employer must then produce evidence of a referral (or referrals) to a then open job (or jobs), which fits in the occupational category for which the claimant has been given medical clearance, e.g., light work, sedentary work, etc.
3. The claimant must then demonstrate that he has in good faith followed through on the job referral(s).
4. If the referral fails to result in a job then claimant’s benefits should continue.

Id. at 252, 532 A.2d at 380.

Claimant asserts that Employer failed to meet the first requirement of Kachinski because Employer did not produce medical evidence of a change in condition. However, Dr. Williams clearly stated the following opinion in his deposition testimony with respect to Claimant’s disability status:

I feel that he is able to be gainfully employed in less laborious-type of work. I would not recommend that he return to his previous employment as an installer of air conditioners and heating units. He can work with certain restrictions. I do not feel that he do [sic] any commercial driving. I do not feel that he should climb ladders. Bending should be limited to maybe 10 to 12 times an hour. He *14is able to lift 50 pounds and twisting motions should be avoided. Overhead work should be avoided.

June. 22, 1988 Deposition of Dr. John T. Williams at 33.

The referee accepted this deposition testimony of Dr. Williams, and this testimony is sufficient to satisfy the first requirement of the Kachinski test.

As to the second requirement, Claimant argues that he was not apprised of medical approval for the job opportunities offered by Mr. Stackhouse, and was not offered jobs that were within his physical capabilities. According to Lukens, Inc. v. Workmen’s Compensation Appeal Board (Williams), 130 Pa. Commonwealth Ct. 479, 568 A.2d 981 (1989), it is implicit within the second requirement of Kachinski that a claimant be apprised of his medical clearance so that he may faithfully pursue any appropriate job referrals. However, it is not necessary to obtain medical clearance for each job referral; Claimant need only be apprised of medical approval for a category of positions. Lukens.

Specifically, Claimant argues that the letters from Mr. Stackhouse which notified Claimant of available job opportunities failed to inform Claimant that the jobs were within the category of positions medically approved. However, an examination of the letters reveals just the opposite.2 A June 25, 1987 letter to Claimant from Mr. Stackhouse states in its introductory paragraph, “[njoting your prior work experience and the restrictions placed on you as of February 1987, the following positions have been found available.”3 Therefore, Employer has met this implicit requirement of Kachinski.

Claimant also contends that Employer failed to satisfy the second Kachinski requirement because Employer’s efforts to return Claimant to the work force were not in good faith. Claimant argues that Employer took a “scattershot” approach to job referrals with “utter disregard” for whether the refer*15rals had been approved by Dr. Williams. However, as previously stated, it is not necessary to obtain medical clearance for each job referral, medical approval is needed for only a category of positions. Lukens. Mr. Stackhouse specifically testified that he utilized Dr. Williams’ restrictions and recommendations in all of his job searches. February 18, 1988 Deposition of H. Robert Stackhouse at 36. In addition, Mr. Stackhouse provided Claimant with at least six available job opportunities within Claimant’s vocational abilities which were specifically approved by Dr. Williams. Referee’s Decision at 3. We, therefore, conclude that Employer made a genuine and good faith effort to return Claimant to employment.

As the court in Kachinski pointed out, it is the referee’s duty to determine, from the medical and vocational evidence presented, whether a claimant is able to perform the jobs in question. Here, the referee found as a fact that Claimant was particularly suited for two positions which were available and promptly provided to Claimant, but which Claimant failed to pursue. This finding is supported by the testimony of Mr. Stackhouse. Therefore, the Board did not err by concluding that Employer met its burden of proving that alternative employment was actually available to Claimant within his physical restrictions, capabilities, and vocationally relevant factors.

Accordingly, we affirm the Board.

ORDER

AND NOW, April 15, 1992, the order of the Workmen’s Compensation Appeal Board in the above-captioned matter is affirmed.

. Claimant also argues within the context of his brief that the Board erred in concluding that Claimant was not entitled to litigation costs. However, Claimant failed to raise or suggest this issue within his statement of questions involved; therefore, we will not consider this issue. Pa. R.A.P. 2116(a).

. These letters were attached to Mr. Stackhouse’s deposition testimony as exhibits and were not objected to by Claimant’s counsel.

. Mr. Stackhouse received Dr. Williams’ report concerning Claimant’s physical restrictions in February of 1987.