*3 NIX, C.J., FLAHERTY, ZAPPALA, Bеfore CAPPY, and MONTEMURO, CASTILLE and JJ.
OPINION MONTEMURO, Justice. whether,
This is case about in compensation a workmen’s reinstatement an hearing, employer’s burden showing job is availability job met showing is within claim- ant’s work-related medical restrictions solely. granted We allocatur, as it is a impression, matter first to determine take into consideration required to is whether to claim- are unrelated restrictions which medical pre-existing on proof meeting its burden injury, ant’s de- correctly Court the Commonwealth availability. Because issue, affirm. we cided this of this matter. facts stipulated to relevant parties
The Markle, Claimant, a work-related L. suffered Terry 1. working while September injury on back Company. Tractor Caterpillar Defendant 1, 1989, re- was February Claimant or about 2. On loss without and to work duty returned leased restricted suspend- Agreement earning Supplemental and a power signed. ing transferred Defendant Jаnuary or about 3. On in its manufac- shop helper the Claimant was within Claimant’s department. turing restrictions. pulmonary emphyse- from severe The Claimant suffers 4. Dr. irritants as set forth avoid certain ma and must January 1990. dated Keeports, report M.D.’s Richard L. Stipulation to this Keeports’ report Dr. attached herein. incorporated is not a work- emphysema pulmonary The Claimant’s emphysema, of his severe pulmonary
6. Because shop helper the duties perform is unable bemay exposed where he manufacturing department, avoid. irritants that he *4 treating orthopedic physician, of Claimant’s report 7. M.D., work related concerning Claimant’s Joseph Danyo, J. incorporated and Stipulation attached to this restrictions are herein. January prior Both held the Claimant
8. warehouse, position paid 29,1990 shop helper and the in the wage. average weekly pre-injury to claimant’s wages equal Facts, Stipulation 8/20/90. and Caterpillar transfer offered refused the Before Compensation. for reinstatement Workmen’s
filed 152 (1) referee, only disputed: two issues were the reason for (2) transfer, Caterpillar and whether was aware of claim-
ant’s emphysema employer proposed at the time to trans- fer claimant.
The referee
employer
found
transferred claim-
ant because the
surplus,
warehouse
was declared
and
was
helper
claimant
transferred to the
shop
Markle
manufacturing department
seniority.
on the basis of
v. Caterpillar
Company,
Tractor
2/12/91,
Referee’s Decision
Fact
Finding
specific
No.
The referee did not make a
finding as whether
aware
claimant’s em-
transfer,
physema at the time of
nor did the
a
referee make
specific finding аs to
emphysema preexist-
whether claimant’s
Instead,
ed his
work-related
found
the referee
“position has been made available to the Claimant within his
Finding
restrictions.”
of Fact No. 5.
(Board)
Compensation
Workmen’s
Appeal Board
af-
Glass),
v.
Farquhar
(Coming
W.C.A.B.
firmed on the
basis
Jasper
v.
(1987);
515
and
Pa.
Claimant next appealed to the Commonwealth Court. In an unpublished Memorandum Opinion, that court affirmed the (a) Board on relying Section 413 Compensa- the Workmen’s holding Carpentertown &Coal Coke tion Act and its recent Co. v. (Seybert), Workmen’s Appeal Pa.Commw. Markle v. Compensa-
tion Board (Caterpillar Tractor Company), No. 1130 (Pa.Commw. 10, 1993) C.D. J., (Kelley, June dissenting). *5 with this of petition a for allowance filed v. Markle Court, February on 1994. granted we which Board, Tractor (Caterpillar (1994). argument Oral 7, 1994. on heard December matter compensation of in a worker’s scope review
Our has there determination of whether is limited to a of law, оr violation violation, an error constitutional findings necessary and whether procedure, Container substantial evidence. St. Joe fact are supported (Staroschuck), 347, 633 A.2d Co. v. W.C.AB. (1993). as a can best be understood
Worker’s employees law tort actions between replacement of common for obtaining compensation employers as a means for Co.), 516 injuries. Construction Kachinski W.C.AB. (1987). Pa. A claim worker’s out his injuriеs arising ant for may only collect those addition, Id. a claimant’s benefits are tied employment. his of the wage at time following a sus seeking claimant reinstatement must that
pension prove reasons First, longer prove no exist. Markle must suspension own, earning again through power no fault of his his Second, disability. prove he must adversely affected v. Ametek- disability continues. original Pieper Division, Thermox Instruments has sustained burden Once performing duties of proving that he is disabled from employment as a result of a work related pre-injury position that other proving has the burden of injury, injured capable he is is available performing. of obtaining and dispute is no that Markle’s work
In this matter there layoff of the date of his disability continued as no dispute through is no January, there own, again earning power is once fault of his claimant’s *6 adversely disability. affected his Accоrdingly, the burden proof Caterpillar prove job shifted to availability at the time of off. lay Markle’s
We find that the Caterpillar determination that met this is supported by burden substantial evidence and affirm. position may be found to actually only be available if it can performed by regard the claimant with his “physical limitations, his age, restrictions capacity, intellectual education, previous work experience, and оther rele vant considerations.” Kachinski v. Compensation Workmen’s Board Construction 240, 251, 532 374, A.2d 379 referrals the employer must be Id. at 252, made in good faith. 532 at 380. The A.2d referrals must be an attempt injured return the employee to produc tive employment and not an paying effort to avoid compensa Id. tion.
In Titusville Hospital v. Compensation Workmen’s (Ward), 619, (1989), 122 Pa.Commw. 365 the Com- relied upon Kachinski and held that a monwealth Court claimant’s рhysical limitations are a factor to be considered Titusville, when determining whether work was available. 122 Pa.Commw. at v. 552 A.2d at 366. Sheehan Appeal Board (Supermarkets Gen- eral), (1991), 143 Pa.Commw. (1992), explained the court
when the referee considers physical limitations to determine job availability, physical limitations cannot be construed to include physical those resulting limitations a from non-work related with no casual priоr connection work- Sheehan, injury. related 143 Pa.Commw. at 600 A.2d at Moreover, the court cannot physical consider limitations Id. existing so, do To would require to compensate non-job injuries related during the period that the recov- ering from his or her work-related injury.
Clearly, emphysema claimants did not result his work There was uncontradicted evidence before the testified emphysema. claimant’s regarding referee in 1984. diаgnosed with the condition initially that he in a emphysema to claimant’s there is reference History. emphy- Caterpillar Interval Medical Claimant’s must referee limitation which the physical sema is availability. job about making when a determination consider (Hems), 19, 647 v. Pa.Commw. Corp. See USX W.C.A.B. (1994) required to show (employer was not A.2d 605 employment claimant was unable resume availability where than work- brain abscess rather because nоnwork-related Carpentertown & Coke injury); Coal related thumb A.2d 955 154 Pa.Commw. (Seybert), W.C.A.B. *7 (1993) (employer 535 Pa. benefits, though even claimant suspension to was entitled as result damage to heart muscle permanent had suffered infarction, inability to return myocardial where work-related heart, damage to but by to was not caused pre-injury disease). by coronary was caused preexisting rather illustrating how the examples raises an number could be holding in this matter Commonwealth Court’s to For A is confined a wheel- Employee instance: abused. A then by Employee B. hiring Employer chair at the time to use injury resulting inability suffers a work related he is disabled degree that one of his arms position employ- pre-injury duties of his performing the only position B Employee offers Employer ment. arm, him uninjured requires the of his but which requires use A could stand, walk, Employee perform to and climb ladders. limitations, given his work related duties the of that offered the duties clearly perform but he could not medical of his non-work related preexisting, because by this offered the claimant example condition. While example in the would B’s actions compelling, Employer set faith; violating requirement thus the good have been Board v. Workmen’s out in Kachinski (1987)(the Co.), Construction (Vepco faith, they good must made in by referrals an attempt injured employee must be to return the produc- to employment tive and not an to paying compensa- effort avoid tion).1 matter,
In this found persuasive convincing referee testimony by submitted that a Caterpillar, position has been made available the Claimant within his work-related restrictions. Markle v. Caterpillar Tractor Company, Refer- 2/12/91, ee’s Decision of Fact Finding No.
referee found Caterpillar’s testimony credible that Markle’s by warehouse was declared surplus Caterpillar and decision transfer claimant the shop helper position in department was on manufacturing based se- niority. Finding of Fact No. 6.
1. In Kachinski
employed Vepco
claimant was a mechanic
Construc-
Company.
working
employer’s
tion
While
premises,
on
claimant was
injured
paint
exploded.
explosion
when a
can
caused claimаnt to
working
injure
fall off the
he
machine
was
on and
his back.
addition,
explosion.
facial
extensive
bums were caused
Kachin-
ski v. Workmen’s
Construction
bums,
Worker’s
were
awarded for the
but no
petition
award
made for the back
Id. Kachinski filed a
compensation, claiming
review the notice of
that his back
also
had
injured
paint
in the
can
Vepco
accident.
denied
Kachinski had
back;
injured
additionally, Vepco
petition
modify compen-
filed a
Employer
sufficiently
sation.
stated that
“claimant
recovered from
original
as
gainful
to be able to return to
employment
presently
place.”
which was then
available in the market
*8
Id. at
Furthermore, of the Worker’s Section modification, in Act, provides pertains which pensation part: pertinent the suspended because has been compensation
[W]here wages in of his or earnings equal are excess employee’s or agreement under the payments injury for any during period at time may resumed award be unless disability payable, partial from not result earnings the loss does it shown that be due to the disability statute, reviewing guided we § 772. 77 P.S. When Act, 1 Statutory principles set out in the Construction interpreta- object statutory of all §§ 1501-1991.2 The Pa.C.S. intention of the General and tion is to ascertain effectuate 1921(a). Regardless, § when the words Pa.C.S. Assembly. all we will ambiguity, free from are clear and the statute the pretext of the law under disregard not the letter 1921(b). The legislature § its Pa.C.S. pursuing spirit. may after a be resumed compensation payments decided earnings does it be that the loss suspension “unless shown words disability injury.” from due to the These result loss of Because claimant’s ambiguity. are clear free due disability result from earnings did not com- his worker’s emphysema, but from non-work related may not resumed. pensation Accordingly, we affirm. J., of this
PAPADAKOS, the decision participate did not case. § imd. effective. Dec. P.L. No.
NIX, C.J., J., dissenting CAPPY, files opinion joins. J.,
MONTEMURO, sitting by designation. NIX, Justice, dissenting. Chief I Because do not believe the instant job availability, matter met its burden of I proving dissent. majority correctly that Appellant states satisfied his proving burden of that the reasons the susрension of his existed, longer thereby no shifting the burden to the prove job availability. to a position In order for available, actually perform must be it able regard his “having physical limitations, restrictions education, age, his intellectual capacity, his previous work experience, considerations, and other relevant such as Compensation residence.” Kachinski Workmen’s place of Co.), Appeal Bd. Cоnstr. 374, (1987) (quoting Kachinski v. Compensation Workmen’s Appeal Bd. (Vepco Constr. 91 Pa.Commw. (1985)). Clearly then,
A.2d 38-39 this Court allows consid- eration of several factors than other injury work-related determining a position actually whether available to injured employee. cites Sheehan v. majority General), (Supermarkets Bd. 143 Pa.Commw. (1991), However, in support position. of its I do not agree Sheehan, majority’s
with the reading that case. physical Cоmmonwealth Court held that restrictions and limitations to determining job consider when if a is available resulting those from the or those or flowing already existing, conditions
existing, prior to the injury. Physical limitations taken into consideration determine availability cannot be construed include physical those limitations resulting from a non-work-related injury with no casual connection to the [sic] work-
159
limitations
physical
are
injury nor which
related
rеlated
existing prior to the
added). According to
632,
(emphasis
Id. physical that proposition stands for the majority, Sheehan the not to be injury work are prior which existed to a limitations How- job availability. Op. in at 1358. determining considered existed ever, conditions which clearly states that Sheehan address- language injury to the can be considered. ambigu- limitations which are non-work-related ing physical condi- prior existing could lead to the conclusion ous and how- job availability; considering not a when tions are factor light is valid in ever, interpretation I not such an do believe facts language and the of Sheehan. quoted preceding the There, injury during the course the suffered back employee workers’ began receiving and employment of his Sheehan, A.2d 143 Pa.Commw. 600 benefits. injury, employee from recovering While his work Id. The a non-work-related hеart attack. suffered Benefits, that the Suspension claiming a Petition for filed his work and partially recovered from employee modifica- pre-injury position to his with certain could return No was made due to his back Id. consideration tions have been may to restrictions given Id. heart attack. employee’s holding residual of the heart employee’s that the effects availability, determining were irrelevant
attack from sought prevent Court Commonwealth injuries occurring an for having “compensate employee job during employee from the away period at injury.” or her work-related recovering from added). language at 637 This does (emphasis condition, pre-existing nor the Common- contemplate condition reviewing pre-existing the effect of a wealth Court work or alternative employee’s ability to return to an on thе employer. referred cite other majority the lower also several tribunals pre-existing that a medical support cases of the condition is not a factor to be determining job considered However, availability. distinguishable these cases Farquhar v. instant Work case. The Board relied upon Works), Compensation Appeal (Corning men’s Bd. Glass (1987); Jasper Compensa Pa. Bd., tion and Lash (1982); Bd., v. Workmen’s A.2d 1325 the proposition that when an employer asserts can return to his or her pre-injury but the is unable to because of the risk *11 evidence, further harm as shown medical employer’s the burden is met if the risk of harm is unrelated to the work- case, the injury. employer instant asserting that Appellant capable returning to his pre injury position. Appellant If were to return to job, able he would not entitled to compensation wages. lost However, becausе he remains from his performing disabled pre-injury position, he is entitled to for lost wages unless employer required by his finds him a as Kachinski. as precede these cases all this Court’s Kachinski, in they in opinion help determining little determining job availability. what factors can be considered in The prior Commonwealth Court relied on its in decision Carpentertown &Coal Coke Co. v. Compensation Workmen’s Appeal Bd. (Seybert), 154 Pa.Commw. 623 A.2d (1993), affirming 631 A.2d 1011 Bоard, Carpentertown the Board. Like cases cited Coal addressed the issue of whether employee an was able return to pre-injury position alleged recovery based on his from his work-related heart attack. issue of what consti- addressed, therefore, tutes was not Carpenter- availability town Coal is not controlling. also cites USX majority Corp. (Hems), Bd. Appeal Pa.Commw. Like the cited other cases, USX Corp. does not reach issue of an whether met, employer’s proving job availability burden of has been rather, it question addresses an employee whether because pre-injury unable to return remains Compensa- v. Workmen’s Pawlosky this Court stated As Bd., may “[i]t tion as an takes an said, generally, now be added). 458-59, (emphasis Id. at at 1209 he comes.” Be- from pulmonary emphysema. Instantly, Appellant suffers comes,” factor this should be a this is “аs he condition cause Appellant, provided if a is available to determining Appellant’s condition existed predates a work-related A medical condition job availability in determining no important should be less edu- employee’s intelligence, previous experience, than the from his home to the referred cation or the distance or her must consider position. These are factors which the making а referral. being as inherent in the when preclude medical condition which would em- pre-existing without perform job able to ployee being physically consider- given to his or her health should be same risk ation. in Kachinski holding this
This is consistent with Court’s *12 system compensation] viability [the that “the workers’ on the faith of The referrals depends good participants. abilities must be tailored to claimant’s injured made in faith to return the good attempt and be а ” Kachinski, employment.... employee productive omitted). (citation can 240, 252, 532 A.2d if to an abilities employee’s said to tailored not be or her precludes a condition him physical has which employee position. performing from pre-existing of a condition deter-
Allowing consideration of the language does not contravene the mining availability pre- or her where the is unable to return employee Act recovery a yet there not full injury position because has 413(a) Act for the of the allows injury. from the work Section when resumption partial disability is unless payable a earnings loss of is not the result of the injury. work-related not Where is able to return to or her pre- injury position injury because the work and a is not capable performing, available is the loss earnings injury. is due to the work Such is case presently before Appеllant us. has recovered injury and remains return unable to to his pre-injury Therefore, position without until restriction. a abilities, him which made available to is tailored to his his loss of earnings does result from his work “the ... isAct remedial in nature and intended to benefit worker, therefore, the Act be liberally must construed to Peterson Work- objectives.” effectuate its humanitarian (PRN men’s Bd. Nursing Agency), Requiring consider- ation of medical condition which prеdates a work determining job availability purpose. serves this I
Because would hold that employer making job when an to Kachinski pursuant referrals is required it to consider physical conditions which predate injury, I work-related would remand this matter for a workers’ compensation judge Appellant pulmonary determine whether contracted emphy- sema or before after the occurrence of his Therefore, I dissent.
CAPPY, J., joins in this dissenting opinion.