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DON-MARK REALTY COMPANY AND ALLSTATE INSURANCE COMPANY v. JOHN MILOVEC (01/10/74)

decided: January 10, 1974.

DON-MARK REALTY COMPANY AND ALLSTATE INSURANCE COMPANY, INSURANCE CARRIER, APPELLANTS,
v.
JOHN MILOVEC, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of John Milovec v. Don-Mark Realty Company and Allstate Insurance Company, Insurance Carrier, No. SA 866 of 1971.

COUNSEL

Raymond F. Keisling, with him Will & Keisling, for appellants.

Alexander J. Pentecost, for appellee.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers. Judge Crumlish dissents.

Author: Rogers

[ 11 Pa. Commw. Page 449]

A referee, the Workmen's Compensation Board*fn1 and the Court of Common Pleas of Allegheny County all held that the claimant in this case, John Milovec, was entitled to compensation for total disability. The employer has appealed the order of the Court. We must reverse.

That the claimant was injured in his employment is not disputed nor is there any question that he suffered permanent injuries to his right arm which renders him unable to perform all of the duties of his last work as a real estate maintenance man or of his former employment as a coal miner. Nor is it seriously contended that the claimant, whom one medical witness described as being 35 per cent disabled and whose principle limitation is the inability to lift objects weighing more than 20 pounds, is unable to do some work.

[ 11 Pa. Commw. Page 450]

The sole issue is whether the employer sustained its burden to prove that work other than that in which the claimant was engaged when injured was available to him, a duty imposed on it by Barrett v. Otis Elevator Co., 431 Pa. 446, 246 A.2d 668 (1968). We do not have the benefit of the lower court's thinking because its action is evidenced only by a judge's brief holographic order stating only that the compensation authorities had not capriciously disregarded competent evidence supporting the employer's cause. Our review compels us to the opposite conclusion.

The employer relied for proof of claimant's employability upon the testimony of Dr. Glen U. Cleeton, as industrial psychologist by intensive training and of wide experience, formerly Dean of Industrial Management, Humanities and Social Science of Carnegie-Mellon Institute of Technology and at the time of testifying a consultant for business enterprises in personnel relations, labor relations, job analysis and employment standards. After establishing his familiarity with the claimant's physical condition, education and employment background, Dr. Cleeton stated that there were a number of positions within the claimant's capabilities available in the vicinity of his residence, some of which were types of work the claimant had performed in the past. A portion of his testimony is: "These jobs [work the claimant could do] are available in the area, yes. The area figures for employment, about three per cent unemployment, which means that 97 out of every hundred people who want to work have a job or are on a payroll somewhere. The small eating and drinking establishments are crying for help. The larger ones are not. The hospitals are again -- I'll put the quotations around it, 'crying for help.'"

This evidence was not rebutted by the claimant. His witness on this subject was a part-time teacher of psychology who believed, because the only physical work

[ 11 Pa. Commw. Page 451]

    the claimant then did was cutting his own lawn, that the claimant was qualified only to be a groundskeeper for a cemetery or golf course. He did not know whether or not any ...


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