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Meade v. Workers' Compensation Appeal Board11/22/2002
Cheryl Meade (Petitioner) petitions for review of the order of the Workers' Compensation Appeal Board (Board) that affirmed a decision of the Workers' Compensation Judge (WCJ) granting Farely Inc.'s (Employer) modification petition based on Petitioner's failure to pursue available employment within her restrictions. Petitioner raised two issues: whether the Board's decision was unsupported by substantial evidence because the record failed to support a finding that she was offered a job within her physical restrictions and whether the Board's decision was unsupported by substantial evidence because the record failed to support a finding that she failed to pursue suitable employment in good faith.
Petitioner has been receiving total disability benefits pursuant to a notice of compensation payable for a work-related right carpal tunnel injury since 1986. Dr. Steven Cash, a board-certified orthopedic surgeon, examined Petitioner on November 6, 1998, and he opined that she was capable of performing full-time sedentary work with non-repetitive use and no overhead reaching of the upper right extremity. The doctor approved a desk clerk position with Employment Alternatives, Inc. (EAI) at the Boyertown YMCA. Employer notified Petitioner of the position by letter dated November 8, 1998 with a start date of November 18. Petitioner worked at the YMCA until she was terminated on December 4, 1998. On May 29, 1999, Employer filed a modification petition alleging that Petitioner failed to pursue available employment in good faith.
To support its modification petition, Employer presented Michael Smychynsky, a certified vocational rehabilitation counselor for Concentra Managed Care (Concentra), who testified that he was retained to find a suitable position for Petitioner. He found a full-time sedentary desk clerk position at the YMCA, which was within Petitioner's restrictions after observing others perform the position. The duties involved assisting the desk clerks, taking membership cards, giving out keys to the facility, answering the telephone and taking messages, which could be performed with one hand either standing or seated. Petitioner never expressed any concerns about her duties and stated that she had no difficulty writing with her right hand. Petitioner signed EAI's employment forms, which instructed her to contact EAI personnel if she was to be absent from work, but on November 20, 1998 she left Smychynsky two messages informing him that she was leaving work early due to pain. He visited the facility to meet with Petitioner; she did not indicate any particular duty that she was unable to perform but repeated that she could not perform the position. He testified that Petitioner never produced medical documentation to support that she could not work full-time.
Richard Korber, the president and co-owner of EAI, testified that EAI with the financial support of the injured workers' time-of-injury employers hires injured workers and employs them at various non-profit organizations. Although Petitioner was released to full-time work, he stated that she only worked an eight-hour day on her first day of work, after which time she began missing work and leaving early without reporting it to Korber as required by EAI's employment policy. Also he was never provided with any medical slip or report that contradicts her release to full-time employment. After becoming aware of the absenteeism from Petitioner's time sheets, he terminated her employment.
Employer presented Dr. Cash's report and a report from Dr. Joseph Thoder, who also agreed that Petitioner could perform full-time sedentary work that did not require any repetitive use of the right upper extremity. It also presente
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