Mason v. WCAB (Joy Mining Machinery)

In Mason v. Workers' Compensation Appeal Board (Joy Mining Machinery), 944 A.2d 827 (Pa. Cmwlth. 2008), the case upon which the Court relied in Hensal the employer had also provided claimant with vocational counseling and referred him to available suitable work within claimant's restrictions and abilities before a determination was made that claimant had retired. Id. at 829. After a right knee work injury, for which he originally received total disability benefits, the claimant's disability status fluctuated between partial, total, and suspended, based on various factors in the claimant's work and treatment history between August 1994 and July 2005. Id. at 828. Ultimately, the employer's physician cleared the claimant to return to medium-duty work. Id. However, the claimant wished to return to his prior position, which was not medium-duty work. Id. The employer decided not to reinstate the claimant or offer him a modified-duty position. Id. The claimant applied for and received a disability pension from the employer and left employer's active-duty roster on July 31, 2005. Id. In May 2005, before he took his pension, the claimant met with a vocational rehabilitation counselor, Martin Bright (Bright), who referred the claimant to various positions that were available and suitable for the claimant's physical and vocational abilities. Id. at 829. On January 24, 2006, after the claimant took his disability pension, the employer filed a suspension petition alleging that the claimant had voluntarily removed himself from the workforce. Id. The claimant argued that the employer failed to show that suitable work was generally available. In rebuttal, the employer offered the following testimony: Bright testified that he first notified the claimant about a position as an auto glass installer with Safelite Auto Glass (Safelite). Bright stated, though, that the claimant never appeared to interview for that position. Rather, in a subsequent feedback letter, the claimant told Bright that he did meet the manager of Safelite, was told that the business was out of applications, and that he should attempt to re-contact her. Bright stated that the manager confirmed this account, but added that the claimant never re-contacted her. The next position Bright located was as a residential cleaner with Cinderella's Cleaning Service (Cinderella's) but that the claimant was not hired because he gave Cinderella's manager the impression that he did not want the position because he talked at length about his disabilities and how it would not behoove him financially to return to work. Bright then found four more openings--an operator at a call center, a janitorial position and two telemarketing jobs--but the claimant either failed to submit an application to the employer or appear for the interviews. Bright testified that every job referral was within the claimant's vocation and physical capabilities, and that the employer's medical expert approved of each of them as being within the claimant's physical work restrictions. Id.