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WORKMEN'S COMPENSATION APPEAL BOARD AND ANA G. VALADEZ v. PENNSYLVANIA SCHOOL BOARDS ASSOCIATION (02/15/77)

decided: February 15, 1977.

WORKMEN'S COMPENSATION APPEAL BOARD AND ANA G. VALADEZ
v.
PENNSYLVANIA SCHOOL BOARDS ASSOCIATION, APPELLANT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Ana G. Valadez v. Pennsylvania School Boards Association, No. A-70714.

COUNSEL

Charles E. Wasilefski, with him Hurwitz, Klein, Benjamin & Angino, for appellant.

Wallace B. Eldridge, III, and James N. Diefenderfer, for appellees.

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

Author: Mencer

[ 28 Pa. Commw. Page 619]

This appeal has been taken by the Pennsylvania School Boards Association (Association) under the provisions of The Pennsylvania Workmen's Compensation Act*fn1 (Act). A referee's decision, affirmed by the Workmen's Compensation Appeal Board (Board), denied the Association's petition to modify an award of compensation for total disability to Ana G. Valadez (claimant). The Association has argued here that (1) the referee and Board erred in finding that it had failed to meet its burden of showing work was available within claimant's physical limitations and (2) the claimant forfeited her right to compensation by allegedly refusing to undergo vocational rehabilitation.

On September 16, 1971, claimant was awarded compensation for total disability as a result of a work-related accident on August 25, 1969 which caused an injury to her back. According to the testimony of Dr. Litton, claimant's physician, he suggested that claimant obtain some type of light work where there would be periods of rest and no prolonged standing or sitting. At the Association's request, claimant went to Goodwill Industries (Goodwill) in February 1974 for testing, as a prelude to rehabilitation and eventual job placement. She left after a half day and refused to return, although she testified she was seeking vocational

[ 28 Pa. Commw. Page 620]

    rehabilitation through several other organizations.

On August 21, 1974, the Association filed a petition to modify the award. Based on the testimony of Dr. Litton, who was called by the Association, the referee found that, while claimant had a residual disability of bodily functions as a whole to the extent of 20 to 25 percent, she was employable within the work restrictions set by Dr. Litton.

On the questions of the availability of work for the claimant and her capacity to do such work, the Association presented two witnesses. The program manager at Goodwill, whose only contact with the claimant was a 10- to 15-minute intake interview on the day she went to Goodwill, testified that there was a possibility that claimant could do clerical work. A job-development specialist from Goodwill testified that general office jobs paying between $80 and $120 per week were available within the claimant's limitations. Admitting she had never talked with the claimant, the specialist based her opinion of the claimant's capacity to do this work on Dr. Litton's testimony. When asked for a specific example of a general office job, she stated that because of the confidential nature of the information she would write definite openings on a piece of paper and give it to the referee. When claimant took the stand, she testified that she could only work two or three days at a time and that she spent the balance of the time in bed.

When the employer is the moving party he has the burden of showing that the disability has ended or has been reduced and that (1) work is available to the claimant and (2) claimant is capable of doing such work. See Parkview Hospital, Inc. v. Workmen's Compensation Appeal Board, 20 Pa. Commonwealth Ct. 567, 342 A.2d 137 (1975); ...


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