*1 569 Pipeline Coating Standard 939, (1994); 326, 944 640 A.2d 377-78, Teslovich, Inc., Pa.Super. v. Solomon & Co. (1985). 840, 845 496 A.2d major in this was a issue constructive notice question
The conflicting evidence on case, and there was substantial by the question to be decided It was therefore issue. to the The court, jury. should have been submitted but as jury requested issue to submit failure have the outcome of very could well controlled appellant have misled believe might jury as notice of have actual or constructive need not PennDOT held liable. condition order be dangerous a new trial with Accordingly, necessary it is to order on the complete instructions give proper directions notice. issue of and a reversed
The order the Commonwealth granted. trial is new
NEWMAN, J., or in the consideration participate of this decision matter.
CONSULTANTS, INC. Pennsylvania. Supreme Court of Aug. 1996. Submitted Jan. Decided *2 Engineer- Weimer, for Construction Pittsburgh, Joseph S. Consultants, Inc. ing Fidei, Beaver, Louis Pertile. for J.
Richard CAPPY, ZAPPALA, FLAHERTY, C.J., and Before NIGRO, JJ. CASTILLE THE OF COURT
OPINION FLAHERTY, Justice. Chief inspector as a nuclear employed Pertile was
Louis (the Consultants, employer) Inc. Engineering Construction ac- injury. The a work-related he suffered when compensa- notice of injury and issued a liability for the cepted weekly 1987 for benefits August payable tion dated for modi- petition filed Subsequently $236.00. accept for or refused to that Pertile had alleging fication arising with the limitations compatible employment alternative injury. from his *3 referee found compensation hearing, the workmen’s
After for work to which Construc- apply had to that Pertile refused insurance carrier compensation workmen’s Engineering’s tion petition to granted him and had referred The appealed. Workmen’s compensation. Pertile modify referee. Board affirmed the Appeal Compensation reversed, employer holding that the Commonwealth failed that Pertile no which established produced had to address granted allocatur to for work. We ruling. Court’s of Commonwealth propriety in workmen’s First, scope inquiry we note that the courts is as follows: reviewing cases compensation whether, reweigh- upon proper scope review] [The evidence, by a referee the decision reached all of the ing one probable reasonable and to have the most appears been Rather, review is judicial rendered. that could have been contains of whether the record to a determination limited findings. the referee’s supports evidence that substantial Bethenergy Mines v. Workmen’s Compensation Appeal Board (Skirpan), 287, 291, (1992). 531 Pa. 612 A.2d
Guidelines for an employer seeking modify a claimant’s benefits based on ability the claimant’s to return to work are:
1. The who modify seeks claimant’s benefits on the basis that he has recovered some or all of his ability produce must first medical evidence of a change condi- tion.
2. The must then produce evidence of a referral (or referrals) (or to a open job jobs), then which fits occupational category for which claimant has given clearance, e.g., light work, medical work, sedentary etc. 3. The claimant must then demonstrate good that he has in referral(s). faith followed through on the If the referral fails to result joba then claim- [the] ant’s benefits should continue.
Kachinski v. Compensation Workmen’s Appeal Board (Vepco Co.), Construction 240, 252, (1987). 516 Pa. 532 A.2d In this employer presented testimony of a medical doctor and a vocational counselor. The counselor was employed by by the compensation workmen’s insurance carri er to locate work for Perfile. The doctor testified that Per- tile’s injury addressed, had been surgically that his condition had improved, and that he was able to return light duty work. The vocational counselor testified she conducted a Perfile, vocational interview with jobs she identified which would be for him suitable and informed him of twenty-one positions at which he was expected apply. Perfile testified that he applied for all of positions given to him by the *4 vocational however, counselor. The employer, contends that Perfile did not apply job for a at one employer, TriState Equipment.
The vocational counselor stated that she notified Perfile of position 20, Tri-State on October 1988. Perfile testified that he in applied person for that job on October 1988 and left his resume. The vocational counselor testified that she after the initial referral twice: once contacted TriState occasions, up. as a follow On both 1988 and later October they that vocational counselor informed the Tri-State Perfile, although at the for application employment have an had discarded they also indicated that they inquiry, second inquiry was The second question. for the applications hearing. for the preparation made to Perfile only job that the available concluded The referee Equip- at Tri-State apply he did not was for which Further, that Perfile was not credi- referee found ment. Qn the other position. for the claiming applied that he ble more credi- counselor was hand, found that the vocational he received from the on the information she “based ble position.” Referee’s that claimant did Decision, Finding p. second began her found that the counselor
The referee between November employers checks with all the series of stated: “Her 1990. The referee January 1989 and had thrown out applications that time that establishes informa- provide or unwilling were unable employers and Decision, 5. As to the second Finding p. tion.” Referee’s the vocational employers, and other contact with Tri-State testified: counselor and then follow-up first contact that
Q. So between contact, he could isn’t it true that follow-up your second threw, or his they away discarded applied have and then time? the mean application Yes, certainly that’s true.
A. Beerens, 22, 1990 at 64. January M. Deposition Nanette was essentially view is Commonwealth Pertile’s Review Compensation of the correct in its reversal Workmen’s on inadmissi- decision was based Board the referee’s because agree. We hearsay ble evidence. hearsay evidence was objection employer’s
Pertile’s preserved. and The referee hearing properly was made at the counsel stated: objection overruled the *5 574 physically possible to in a bring representative
[I]t every from employer every time there is a modification petition Pertile, filed as it relates to a claimant such as Mr. particular or this or twenty twenty-one different employers.
That would twenty necessitate service of or twenty-one subpoenas on the individual with whom Ms. Beerens [the vocational or the counselor] co-vocational consultant has had contact.
I think that Ms. testifying Beerens is as a vocational expert, and as such permitted she is the leeway testify as it relates information that she has developed about jobs certain and that information conveyed that has been her by employer. the
N.T. 134a-135a. The referee concluded: hearsay objections
Claimant’s to the of Nanette Beerens, based on her reliance on information obtained claimant, from prospective employers of the is overruled. The hearsay statements of prospective employers to Beerens are of type reasonably upon by expert relied an in the vocational rehabilitation field in forming opinion an subject of whether a claimant has through followed the appropriate manner on referrals. type of fact [The to which the counselor parameters falls within the testified] of permissible hearsay data by allowed the Commonwealth Markets, (Pilvalis), in [Acme Inc. v. WCAB 142 400, 3, (1991) Pa.Cmwlth. 409 n. 597 A.2d n. 298 3 ]. Decision, Law, Referee’s Conclusions of p. No. W.C.A.B., In McCray 402, 409-10, v. 167 Pa.Cmwlth. (1994), A.2d 351-52 Commonwealth Court explained Acme:
In
explained
Acme we
in a footnote that the testimony employer’s expert vocational
regard
witness with
to the
specific
duties connected with the work and
position
was admissible where the witness gained her information
personal
from
observation and
where
information was of
type reasonably
“the
relied on
an
expert
particular
Acme, 142
subject.”
on the
opinion
an
forming
field
In the
Here, there is McCray, as was job application as to whether Pertile’s testimony the plainly and is a matter of fact purely inquiry an file. Such errone- testimony was objection. The hearsay to the subject ously admitted. of illustrative a case more fact, imagine difficult to
In it is being employer the hearsay testimony. Without the evils of there inquire as to whether helpless was Perfile present, that he report error in the not have an may to who searches inquire not as not Perfile could apply. did who creates the qualifications, applications, files for their files, to the of the cost files, reliability security inquiries, counselor’s to the vocational responding of importance or lack of to the importance or the are accurate. It is conceivable responses sure that its making and maintained at Tri-State were created the files no interest or who had temporary personnel trained poorly to mount was entitled accuracy. Perfile ability to insure their of information concern- accuracy to the meaningful challenge a in the challenge impossible was application, his and such ing employer. of absence the vocation- hearsay testimony to admit the
It was error holding was correct al counselor. Commonwealth support of the decisions no there was substantial of the lower tribunals.1 of Commonwealth Court is affirmed.
.Order ÑEWMAN, J., participate in the consideration or decision of this case.
CASTILLE, J., concurring files a opinion.
CASTILLE, Justice, concurring. join I However, the decision of majority. I write separately to further explain my understanding on the use of hearsay testimony in compensation workers’ proceedings.
In Joyce v.
Compensation
Workmen’s
Appeal Board (Og-
Maintenance),
(1996),
545 Pa.
the for such hearsay evidence was also any in inadmissible event, was immaterial since applied Pertile made no claim that he after October the date when the counselor checked the first time.
577 of claimant’s affirmance of the modification monwealth Court’s present any to other the had failed benefits since of avail- proving to its burden substantial evidence meet Compensation Appeal under Kachinski v. Workmen’s ability Co.), Pa. A.2d 374 (Vepco Construction Board (1987). I con- dissenting opinion Joyce,
In in my concurring and that it announced a rule majority to the extent curred with alone, objec- proper to which a hearsay testimony of law that made, in a workers’ support finding tion cannot a referee’s majority I with the that compensation agreed case. also as to claimant specialist’s testimony whether placement hearsay Howev- position testimony. for a certain was applied er, I majority’s holding I because believed dissented from of testimony go proving that did not towards the issue such Instead, testimony I that went job availability. believed such a in pursued position to whether claimant referred the issue of specialist’s testimony good job placement faith. Because the made, objection was to a was I stated hearsay timely which by the testimony that alone could not be used standing such faith. a claimant support finding referee to that acted bad However, non-hearsay sup- since there was other evidence (such follow port failing of bad faith as claimant finding a admission applying position instructions for a claimant’s I seeking that to do employment), he needed more future from the modification majority’s dissented reversal claimant’s benefits.
In judice, sub it counselor’s the case is clear vocational Perfile, for a appellee, Louis A. testi- position Equipment hearsay with Tri-State constituted Thus, appellee timely objection. to which made a mony this could pursuant Joyce, not be used appellee acted in faith support finding referee bad *8 how- seeking Equipment position. Joyce, the TriState Unlike ever, any non-hearsay the record does not contain I Accordingly, independently support finding bad faith. join majority’s affirmance of the Commonwealth Court’s appellee’s reversal of the modification of benefits.