Appeal from the Order of the Workmen's Compensation Appeal Board in case of Michael Pastellak v. Chamberlain Corporation.
Joseph E. Gallagher, with him O'Malley, Morgan, Bour & Gallagher, for appellant.
Thomas J. Foley, Jr., with him Ralph P. Needle, and, of counsel, Rosser, McDonald, Marcus & Foley, for appellees.
Judges Crumlish, Jr., Wilkinson, Jr., and Mencer, sitting as a panel of three. Opinion by Judge Wilkinson.
As a result of an accidental injury occurring on January 27, 1969, claimant-appellee and employer-appellant entered into a Workmen's Compensation Agreement providing coverage for one and two-sevenths (1-2/7ths) weeks. Claimant received a total of $77.14 and executed a final receipt on February 17, 1969.
The present litigation was initiated in April of 1969 when claimant filed a petition for compensation for disability, which has been treated by the Referee and the Workmen's Compensation Appeal Board as a petition to set aside a final receipt. After hearing, the Referee set aside the final receipt and found the claimant to be totally disabled as a result of the injury to his lower back. The Workmen's Compensation Board, however, found that claimant suffered only a partial disability and remanded for a determination of the extent of the disability. An impartial medical expert was appointed to aid in this determination.
At the second hearing, in addition to the testimony of the impartial medical expert, the Referee heard testimony concerning available jobs and offers of employment made to claimant. As a result of this hearing, the Referee concluded that ". . . the claimant is unable to perform any sustained work other than that of a selective or sedentary type which would not involve lifting,
bending or stretching", and again awarded total disability because there was no work available which claimant could perform. The employer is appealing from the Board's affirmance of this award.
Petrone v. Moffat Coal Company, 427 Pa. 5, 233 A.2d 891 (1967), and Barrett v. Otis Elevator Company, 431 Pa. 446, 246 A.2d 668 (1968), require that once it is established that the claimant is unable to do the type of work he was engaged in when injured, the employer then assumes the burden of showing that work the claimant is capable of obtaining is available. Appellant here does not contest the Board's determination that the claimant can now perform only light work of a selective nature, but does contend that the burden of showing available work has been met. A careful review of the record convinces us that appellant has indeed met this burden, and the Board has committed an error of law in finding otherwise. Our scope of review, as now set forth in the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, Section 44, 71 P.S. § 1710.44, permits reversal when the adjudication is not in accordance with law.*fn1
Two employees of the appellant testified at the second hearing on the matter of ...