Lathilleurie v. Workmen's Compensation Appeal Board
Court: Commonwealth Court of Pennsylvania; June 15, 1995; Pennsylvania; State Appellate Court
Marquis Lathilleurie (Claimant) appeals a decision from the Workmen’s Compensation Appeal Board affirming a referee's ruling that granted a modification petition from Thomas McMackin Citgo (Employer). Claimant, who suffered a back injury in 1987 and received temporary total disability benefits, was deemed capable of returning to work as of August 20, 1990, based on Employer's evidence. Employer's case included testimony from Dr. Easwaran Balasubramanian, an orthopedic surgeon, who evaluated Claimant on July 26, 1990, concluding that while Claimant could not perform his previous job, he was capable of various physical tasks and approved eight alternative jobs. Additionally, vocational rehabilitation counselor Paul C. Morrison provided testimony regarding job referrals, and surveillance evidence was presented, which included video footage and an investigator's report.
In opposition, Claimant testified and provided a deposition from Dr. Richard S. Glick, who asserted that Claimant was unable to work as of December 5, 1991. The referee ultimately ruled in favor of Employer, identifying two available jobs for Claimant. Claimant's appeal claims that the referee improperly allowed Employer to present surveillance evidence, arguing that it violated Section 131.61 of the Special Rules of Administrative Practice and Procedure, which mandates the exchange of evidence within a specific timeframe. Claimant contended that the surveillance report was not shared with his counsel until after the deadline, while Employer maintained compliance by asserting it had received the report within the required period. The referee admitted the surveillance evidence despite Claimant's objections, which showed him working at a café during extensive video monitoring.
Claimant did not contest the validity of video surveillance but claimed he was not employed at LI Trim's Cafe. The Referee found Bruce Keyser's testimony credible, establishing that Claimant was indeed working at the cafe, engaged in various physical tasks, including waiting on customers, driving a van, and cleaning. The Referee ruled that the surveillance evidence was timely provided to Claimant's counsel, allowing adequate preparation for rebuttal, and affirmed the admission of this evidence. Even if the surveillance evidence had been improperly admitted, the Referee's conclusion that Claimant could perform two light-duty positions was supported by sufficient evidence, including medical evaluations.
Dr. Balasubramanian's testimony was deemed more credible than Dr. Glick's, supporting the assertion that Claimant was capable of light-duty work and approving eight job referrals, including positions at Wackenhut Security and General Security Company. The Referee clarified that while the surveillance evidence reinforced her findings, it was not the sole factor in her decision. Claimant contested the availability of the job positions, arguing that the employer failed to accurately reflect his physical condition to prospective employers and that findings were based on inadmissible hearsay. However, the analysis of job availability follows established legal principles, requiring the employer to demonstrate medical evidence of a change in condition and job referrals fitting the claimant's medical clearance. The Referee found that Dr. Balasubramanian’s testimony sufficiently met the employer's obligation to provide medical evidence of a change in condition.
Dr. Balasubramanian's examination of Claimant on July 26, 1990, revealed good back mobility and indicated that although Claimant had a herniated disc at L5-S1, he had recovered well post-surgery. Dr. Balasubramanian concluded that Claimant could not return to his former job but could perform light-duty work, approving eight suitable positions. In contrast, Claimant’s physician, Dr. Glick, asserted that Claimant could not work in his previous role as an auto mechanic or any other job. The referee favored Dr. Balasubramanian’s testimony, deeming it more credible, and found substantial evidence supporting this decision.
Regarding job availability, Claimant contended that Employer failed to demonstrate that work was available since the vocational counselor did not communicate Claimant’s physical limitations to potential employers. According to the Kachinski standard, a job is not considered "actually available" without evidence that employers would accept Claimant given his limitations. Despite this, Employer successfully established that suitable work existed, as evidenced by Dr. Balasubramanian’s approval of the eight positions, which were communicated to Claimant via first-class and certified mail. Claimant confirmed reaching out to most of these employers.
Claimant argued that Employer did not act in good faith in job referrals, as there was no evidence that employers were informed of his restrictions. Previous cases, Young and Brown, highlighted that failing to disclose significant limitations undermined an employer's good faith effort in proving job availability. However, more recent rulings in Delaware Valley Truck Parts and Oscar Mayer Foods distinguished these earlier cases, addressing the obligations of vocational counselors regarding the communication of a claimant's limitations to employers.
In Oscar Mayer, it was determined that employers are not required to receive all of a claimant’s medical information but must be informed about the type of work the claimant is cleared to perform (e.g., light duty or sedentary work) and any relevant physical restrictions. The precise nature of the claimant’s disability is not necessary for the employer to know. In Delaware Valley Truck Parts, the Board reversed a referee's decision, stating that the employer failed to inform the prospective employer of all the claimant’s physical limitations, concluding that the job was not truly available. However, this was overturned because the claimant’s 50-pound lifting restriction was not relevant to the cashier job, which only required lifting 5 pounds; thus, a reasonable employer would not need to know about restrictions unrelated to the job's duties.
In the current case, a vocational counselor, who did not meet with the claimant but reviewed medical records and consulted with the employer, successfully identified eight light-duty jobs within the claimant's restrictions. Job descriptions were approved by the claimant’s doctor, affirming that they aligned with the claimant's physical capabilities. The employer met its burden of proof regarding the second requirement under Kachinski by providing relevant physical restrictions to the prospective employers. Any undisclosed limitations were deemed irrelevant.
The claimant's argument regarding the referee's reliance on hearsay testimony related to job availability was dismissed as disingenuous, as it conflated evidence concerning the second prong of the Kachinski test with the claimant's obligation to prove good faith follow-through on job referrals, which pertains to the third prong. Even if there was an error in admitting the hearsay, it did not impact the overall result.
The Claimant bore the sole burden to demonstrate that he acted in good faith by pursuing job referrals. After excluding contested testimony, the referee found the Claimant's account of his efforts to contact the referred jobs untrustworthy and concluded that he did not act in good faith. Specifically, the Claimant testified to contacting Wackenhut Security but expressed doubts about his ability to perform the job, citing physical limitations that prevented him from fulfilling job requirements such as walking or climbing stairs. He did not indicate that he applied for or interviewed for the position. Additionally, he failed to show any follow-up efforts regarding the General Security Company position. Consequently, the decision of the Workmen’s Compensation Appeal Board, which affirmed the referee's ruling to modify the Claimant’s benefits, was upheld. The review focused on whether constitutional rights were violated or if there were errors in law, confirming that the findings were supported by substantial evidence and aligned with the precedent set in Kachinski, which stipulates that the claimant must prove good faith follow-through on job referrals.
