Kachinski test in Pennsylvania

2016An employer who seeks to suspend a claimant’s benefits on the basis that the claimant has recovered some or all of his ability must meet the four prong standard announced in Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 532 A.2d 374, 380 (Pa. 1987).7, 8 If, as in the current case: 7 The Kachinski standard is as follows: 1.

2016An employer who seeks to suspend a claimant’s benefits on the basis that the claimant has recovered some or all of his ability must meet the four prong standard announced in Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 532 A.2d 374, 380 (Pa. 1987).7, 8 If, as in the current case: 7 The Kachinski standard is as follows: 1.

2005Joe Container Co. v. Workmen’s Compensation Appeal Bd. (Staroschuck), 534 Pa. 347, 352 , 633 A.2d 128, 130 (1993)(adding to the Kachinski test the inquiry, “whether the job is, in essence, unacceptable for some reason unrelated to the employee’s physical abilities or his conduct in connection with a valid job referral, thus rendering it unavailable to the Claimant”).

2005Joe Container Co. v. Workmen’s Compensation Appeal Bd. (Staroschuck), 534 Pa. 347, 352 , 633 A.2d 128, 130 (1993)(adding to the Kachinski test the inquiry, “whether the job is, in essence, unacceptable for some reason unrelated to the employee’s physical abilities or his conduct in connection with a valid job referral, thus rendering it unavailable to the Claimant”).

2015Services, Inc.), 858 A.2d 648, 651 (Pa. Cmwlth. 2004) (holding that the 1996 amendment eliminated the Kachinski requirement that an injured employee be offered an actual job).

2009Services, Inc.), 858 A.2d 648, 651 (Pa.Cmwlth.2004) (holding that the 1996 amendment eliminated the Kachinski requirement that an injured employee be offered an actual job). 8 The legislature amended the Workers’ Compensation Act and added the definition of “earning power” at issue here as well as a new standard for proving earning power.

2008Lewis . 3 “In order to meet its burden under the first prong of the Kachinski test, an employer need only adduce medical evidence that the claimants current physical condition is different than it was at the time of the last disability adjudication.” Id. at 501, 919 A.2d at 928 (Emphasis added.) It is not sufficient, nor is it proper, for an employer merely to challenge the diagnosis of a claimant’s injuries as determined by a prior proceeding.

2008Lewis . 3 “In order to meet its burden under the first prong of the Kachinski test, an employer need only adduce medical evidence that the claimants current physical condition is different than it was at the time of the last disability adjudication.” Id. at 501, 919 A.2d at 928 (Emphasis added.) It is not sufficient, nor is it proper, for an employer merely to challenge the diagnosis of a claimant’s injuries as determined by a prior proceeding.

1997A claimant’s statements indicating to a prospective employer the reasons she should not be hired “take[] on all the indicia of a willful sabotage, effectively eliminating any chance for employment.” Munroe v. Workmen’s Compensation Appeal Board (H & G Distributing Co.), 151 Pa.Cmwlth. 465 , 617 A.2d 88, 91 (1992), petition for allowance of appeal denied, 536 Pa. 634 , 637 A.2d 294 (1993).

1997A claimant’s statements indicating to a prospective employer the reasons she should not be hired “take[] on all the indicia of a willful sabotage, effectively eliminating any chance for employment.” Munroe v. Workmen’s Compensation Appeal Board (H & G Distributing Co.), 151 Pa.Cmwlth. 465 , 617 A.2d 88, 91 (1992), petition for allowance of appeal denied, 536 Pa. 634 , 637 A.2d 294 (1993).

2023Claimant posits that just as it is not vocationally suitable to pay someone to sit in a cafeteria all day with no work, the position “is an intentional attempt to provide unpleasant work not reflective of [her] true vocational aptitude.” (Claimant’s Reply Br. at 3-4; see also id. at 12 (“referring persons near retirement age to utterly dissimilar work[] may not be vocationally appropriate”).) Claimant cites to this Court’s decision in Bussa v. Workers’ Compensation Appeal Board (Giles & Ransome, Inc.), 777 A.2d 126 (Pa. Cmwlth. 2001), as well as various nonprecedential decisions of the Board,

2023Claimant posits that just as it is not vocationally suitable to pay someone to sit in a cafeteria all day with no work, the position “is an intentional attempt to provide unpleasant work not reflective of [her] true vocational aptitude.” (Claimant’s Reply Br. at 3-4; see also id. at 12 (“referring persons near retirement age to utterly dissimilar work[] may not be vocationally appropriate”).) Claimant cites to this Court’s decision in Bussa v. Workers’ Compensation Appeal Board (Giles & Ransome, Inc.), 777 A.2d 126 (Pa. Cmwlth. 2001), as well as various nonprecedential decisions of the Board,

2007See also Keys-Pealers, Ltd. v. WCAB (Bricker), 870 A.2d 936 (Pa.Cmwlth.2005) (holding that an employer seeking modification must show a change in claimant's physical condition); Mora v. WCAB (DDP Contracting Co., Inc. and Penn National Insurance), 845 A.2d 950 (Pa.Cmwlth.2004) (same); Anderson v. WCAB (Pennsylvania Hospital), 830 A.2d 636 (Pa.Cmwlth.2003) *928 (same); Dow v. WCAB (Household Finance Co.), 768 A.2d 1221 (Pa.Cmwlth. 2001) (same); J.E.

2007See also Keys-Pealers, Ltd. v. WCAB (Bricker), 870 A.2d 936 (Pa.Cmwlth.2005) (holding that an employer seeking modification must show a change in claimant’s physical condition); Mora v. WCAB (DDP Contracting Co., Inc. and Penn National Insurance), 845 A.2d 950 (Pa.Cmwlth.2004) (same); Anderson v. WCAB (Pennsylvania Hospital), 830 A.2d 686 (Pa.Cmwlth.2003) (same); Dow v. WCAB (Household Finance Co.), 768 A.2d 1221 (Pa. Cmwlth.2001) (same); J.E.

2003Indeed, the dissent noted, this Court in Banic v. Workmen’s Compensation Appeal Bd. (Trans-Bridge Lines, Inc.), 550 Pa.276, 705 A.2d 432 (1997), while phrasing the issue from the opposite perspective, had specifically noted that it was an open question: “ ‘the issue of whether a claimant’s release from prison automatically entitles the claimant to a reinstatement of benefits is left for another day.’ ” 734 A.2d at 948 (Doyle, J., dissenting), quoting Banic, 705 A.2d at 437 n. 8 (emphasis by Judge Doyle).

2003Indeed, the dissent noted, this Court in Banic v. Workmen’s Compensation Appeal Bd. (Trans-Bridge Lines, Inc.), 550 Pa.276, 705 A.2d 432 (1997), while phrasing the issue from the opposite perspective, had specifically noted that it was an open question: “ ‘the issue of whether a claimant’s release from prison automatically entitles the claimant to a reinstatement of benefits is left for another day.’ ” 734 A.2d at 948 (Doyle, J., dissenting), quoting Banic, 705 A.2d at 437 n. 8 (emphasis by Judge Doyle).

2003As this Court has defined “disability” in the workers’ compensation context as “loss of earning power,” Landmark Constructors, Inc. v. Workers’ Compensation Appeal Board (Costello), 560 Pa.618, 747 A.2d 850, 854 (2000), section 413 of the Act therefore permits an employer to file a modification petition any time an injured employee’s loss of earning power has either decreased or “temporarily or finally ceased.” Id.

2003As this Court has defined “disability” in the workers’ compensation context as “loss of earning power,” Landmark Constructors, Inc. v. Workers’ Compensation Appeal Board (Costello), 560 Pa.618, 747 A.2d 850, 854 (2000), section 413 of the Act therefore permits an employer to file a modification petition any time an injured employee’s loss of earning power has either decreased or “temporarily or finally ceased.” Id.

2003Thus, the court believed it necessary to modify the first prong of the Kachinski test in irreversible disease cases to provide that: The employer who seeks to modify the benefits of a claimant with an irreversible disease on the basis that the claimant can work in a modified position must first produce evidence that the claimant has been given medical clearance for the modified position. 778 A.2d at 1288 (emphasis in original).

2003Thus, the court believed it necessary to modify the first prong of the Kachinski test in irreversible disease cases to provide that: The employer who seeks to modify the benefits of a claimant with an irreversible disease on the basis that the claimant can work in a modified position must first produce evidence that the claimant has been given medical clearance for the modified position. 778 A.2d at 1288 (emphasis in original).

1998Dilkus v. Workmen’s Compensation Appeal Bd. (John F. Martin & Sons), 543 Pa. 392, 398 , 671 A.2d 1135, 1138 (1996) (quoting Kachinski ); Westerwald Pottery Corp. v. Workmen’s Compensation Appeal Bd. (Watters), 692 A.2d 1145 (Pa.Cmwlth.1997).

1998Dilkus v. Workmen’s Compensation Appeal Bd. (John F. Martin & Sons), 543 Pa. 392, 398 , 671 A.2d 1135, 1138 (1996) (quoting Kachinski ); Westerwald Pottery Corp. v. Workmen’s Compensation Appeal Bd. (Watters), 692 A.2d 1145 (Pa.Cmwlth.1997).

1994Recently, we considered the Kachinski standard in Oscar Mayer Foods Corp. v. Workmen’s Compensation Appeal Board (McAllister), — Pa.Commonwealth Ct. -,-, 648 A.2d 116, 118 (1994), stating: Under Kachinski an employer who seeks to modify a claimant’s benefits on the basis that the claimant has recovered some or all of his ability must produce medical evidence of a change in condition. [1] The employer must then produce evidence of referrals to then open jobs which fit the occupational category for which claimant has been cleared.

1994Recently, we considered the Kachinski standard in Oscar Mayer Foods Corp. v. Workmen’s Compensation Appeal Board (McAllister), — Pa.Commonwealth Ct. -,-, 648 A.2d 116, 118 (1994), stating: Under Kachinski an employer who seeks to modify a claimant’s benefits on the basis that the claimant has recovered some or all of his ability must produce medical evidence of a change in condition. [1] The employer must then produce evidence of referrals to then open jobs which fit the occupational category for which claimant has been cleared.