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YELLOW FREIGHT SYSTEM v. COMMONWEALTH PENNSYLVANIA (10/12/77)

decided: October 12, 1977.

YELLOW FREIGHT SYSTEM, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND FORREST E. DENNIS, JR., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Forrest E. Dennis, Jr. v. Yellow Freight Systems, Inc., No. A-71337.

COUNSEL

Christopher S. Underhill, with him Hartman and Underhill, for petitioner.

David R. Eaby, with him Eaby & Eaby, and James N. Diefenderfer, for respondents.

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

Author: Wilkinson

[ 32 Pa. Commw. Page 148]

The difficult question raised in this appeal from the dismissal of a petition to terminate a compensation agreement is whether an employer can be restricted in proving the availability of work, within a claimant's physical limitations, to the area of the claimant's present residence as opposed to the area where he worked at the time of his injury. The Workmen's Compensation Appeal Board (Board) affirmed a referee's decision which considered only the area of the claimant's present residence. We affirm.

Respondent was employed by petitioner as a dockman in Lancaster, Pennsylvania, when, in December 1972, he suffered a compensable injury for which he

[ 32 Pa. Commw. Page 149]

    has received total disability payments. In October 1973, petitioner filed its petition to terminate, alleging that respondent's physician had discharged him to return to work in March 1973 and that respondent was fully recovered from his disability and able to return to work. Sometime thereafter, respondent moved from the Lancaster area to a town with an approximate population of 4,500 in Delaware, where he presently resides.*fn1 He has not been employed since incurring the injury.

Petitioner's physician testified that respondent has permanent work limitations preventing him from lifting more than 50 pounds and performing excessive bending or stooping, a diagnosis in agreement with the March 1973 discharge report of respondent's treating physician, to which the parties stipulated. Petitioner's employment expert testified that he had found three jobs available to a person with what were then considered respondent's qualifications and physical limitations in the area of respondent's Delaware residence, two as a security guard and the third as a tire salesman.

The referee found that respondent has "at the minimum a permanent partial disability" with the lifting and bending restrictions, that respondent has made sincere efforts to find employment, that petitioner's employment expert had not provided credible evidence as to available employment and that petitioner had not raised a reasonable contest as to respondent's alleged recovery. The referee then dismissed the petition to terminate. The Board affirmed.

Petitioner contends that it should have been given the option to meet its burden of ...


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