Masko v. Workmen's Compensation Appeal Board

BARRY, Senior Judge. Ronald Masko, the claimant, appeals an order of the Workmen’s Compensation Appeal Board (the Board) which affirmed an order of a referee granting a suspension/modification petition of the employer, Civic Center Cleaning Co., Inc., and ordering that the employer pay only a portion of the claimant’s medical bills. We reverse. The claimant injured his back at work in June of 1984 and began collecting benefits for total disability pursuant to a notice of compensation payable. The employer subsequently filed two petitions, the first of which was a suspension/modification petition wherein it alleged that the claimant had failed to pursue in good faith job referrals within the claimant’s physical capabilities. The employer also filed a review petition in which it questioned the reasonableness and necessity of some of the claimant’s medical bills. Following hearings and the introduction of evidence, the referee found that the claim [561] ant had not in good faith pursued job opportunities within his physical capabilities to which he had been referred by the employer; by order of May 23, 1989, the referee reduced the claimant’s benefits based upon the conclusion that the claimant was only partially disabled. That same order required the employer to pay only one-half of the claimant’s medical bills up to September 26, 1988, and none thereafter. The Board affirmed and the claimant has sought our review.1 Our scope of review is limited to determining, inter alia, if an error of law was committed and if all necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704. On a petition to either modify or suspend benefits because a claimant, though not completely recovered from the work-related injuries, is capable of performing work less strenuous than was required at his job when he was originally injured, the procedure is as follows: 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. Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 252, 532 A.2d 374, 380 (1987). The claimant contends that the referee erred when he concluded that the employer met its burden in this case. The claimant notes initially that the employer never informed the claimant that its medical experts ever told him that he had been given clearance to do less strenuous work. [562] Our review of the record indicates that the employer offered no evidence in this regard. The claimant testified that he went to his medical expert each time he was sent a job referral to see if he could perform those jobs with his physical limitations. It is undisputed that the claimant’s doctor disapproved four of the jobs and approved three of the jobs. It is also undisputed that the claimant applied for each of the three jobs which his doctor approved but obtained none of them. The referee nonetheless granted the employer’s modification/suspension petition, stating that he rejected the testimony of the claimant and “believes that claimant did not make a good faith effort in attempting to secure alternate employment as claimant failed to apply for four of the positions presented to him.” (Referee’s Decision, Finding of Fact 15, 5/23/89.) Given this factual scenario, we are convinced that the referee erred in granting the employer’s modification/suspension petition. The claimant does not dispute that the employer offered the necessary medical evidence to the referee to prove a change in his medical condition. The claimant does, however, assert that the employer never notified him that he had been given medical clearance to do light duty work. The employer points to no such evidence that it offered. As we have stated, “... it is essential that Claimant be made aware that he is medically sanctioned for an occupational category.” Lukens, Inc., v. Workmen’s Compensation Appeal Board (Williams), 130 Pa.Commonwealth Ct. 479, 486, 568 A.2d 981, 984 (1989). Because we held that employer’s failure to offer such evidence in Lukens mandated a holding that the employer had not met its burden under Kachinski, we must similarly hold that the employer in the present case also failed to sustain its burden. The employer aptly points out that the claimant was notified by his own physician that he was capable of doing three of the jobs. The claimant posits that the employer’s failure to inform him of medical clearance for light duty jobs in and of itself relieved him of any responsibility for applying for any jobs. There is no precedent in this Court for the principle that a claimant must ask his or her physician for [563] medical clearance when the employer fails to inform the claimant of such clearance. We need not decide that question today because the claimant did in fact consult with his own doctor and applied for the jobs which his doctor approved. The referee did not make any factual finding which would indicate that the claimant did not act in good faith when applying for those three jobs; rather, the referee determined that the claimant acted in bad faith because he did not apply for the four jobs which his doctor believed too physically taxing. We are constrained to hold that failing to apply for those four jobs did not constitute bad faith on the part of the claimant.2 Because the claimant’s inaction with regard to those four jobs cannot be considered, we are left with a situation where the claimant applied for all of the jobs which he had been told that he was capable of doing. Because he did not obtain any of those jobs, his benefits must continue. Kachinski The claimant also argues that the referee and the Board erred in relieving the employer of responsibility for paying for a portion of the claimant’s medical expenses. The referee decided that a portion of the medical expenses were unreasonable and unnecessary. We have held, however, that a referee is empowered to relieve an employer of its obligation to pay for medical expenses only after the date of a decision that those expenses were unreasonable or unnecessary. Johnson v. Workmen’s Compensation Appeal Board (Albert Einstein Medical Center), 137 Pa.Commonwealth Ct. 176, 586 A.2d 991 (1991); Boehm v. Workmen’s Compensation Appeal Board (United Parcel Services), 133 Pa.Commonwealth Ct. 455, 576 A.2d 1163 (1990). In this case, the referee decided on May 23, 1989 that the expenses charged by the claimant’s doctor were unreasonable and excessive. Since the referee [564] held that the employer was not responsible for related medical expenses prior to that date, the referee erred. We must also reverse the Board’s order affirming the referee’s decision in this regard. Reversed. ORDER NOW, August 5,1992, the order of the Workmen’s Compensation Appeal Board, dated September 13, 1990, at A89-1514, is reversed. Footnotes [1] This case was reassigned to the writer on February 18, 1992. [2] The referee’s findings show that he ultimately determined that the claimant was capable of performing all of the seven jobs, thereby discrediting the opinion of claimant’s doctor that four of the jobs were outside the claimant's physical capabilities. This credibility determination does not alter our conclusion as we believe that the claimant was entitled to act on his doctor’s advice when the employer failed to notify him that he had been medically cleared for light duty work by the employer’s physicians.