Hoffman v. Commonwealth

Dissenting Opinion by

Judge Doyle:

I respectfully dissent because I do not believe that the majority opinion adequately distinguishes our deci*577sion in Fox v. Unemployment Compensation Board of Review, 105 Pa. Commonwealth Ct. 7, 522 A.2d 713 (1987). We stated in Fox:

[I]t is well-established that a claimant has an obligation to communicate her medical problems to her employer and to explain her inability to perform her regularly assigned duties. . . . Claimants argument that advising her Employer of her medical limitations would be futile misses the point. Only through communication can an employer be afforded an opportunity to accommodate a claimants problem by offering suitable work. . . . Moreover, a claimant would not necessarily be aware that an employer has suitable work because a suitable position may in fact be one specially created for the claimant.

Id. at 10 , 522 A.2d at 715 (citations omitted and emphasis in original).

First, our review of the paperbooks in Fox discloses that the same admission, i.e., a supervisors statement that no light duty work would have been available had claimant asked for it, was present in that case. Second, unless there is communication by a claimant, the employer loses the opportunity to create a job. In other words, even though no existing job may be available, Fox teaches that an employer must be given the opportunity to establish a suitable position. Additionally, where no present job exists, a supervisor might himself or herself be unaware of the feasibility of creating one. Fox, by its reasoning, encourages both mitigation of damages by an employer and conservation of the unemployment compensation fund. Such aims are to be encouraged. I believe that, by reading the case in such a restrictive manner, the majority frustrates these twin goals.