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INTER-STATE TILE AND MANTEL CO. v. COMMONWEALTH PENNSYLVANIA (12/27/78)

decided: December 27, 1978.

INTER-STATE TILE AND MANTEL CO., INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JOHN W. MYERS, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John W. Myers v. Inter-State Tile and Mantel Co., No. A-73204.

COUNSEL

Ronald M. Katzman, with him Goldberg, Evans & Katzman, for appellant.

John J. Krafsig, Jr., with him James N. Diefenderfer, for appellees.

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

Author: Mencer

[ 39 Pa. Commw. Page 430]

In Workmen's Compensation Appeal Board v. Inter-State Tile and Mantel Co., 20 Pa. Commonwealth Ct. 178, 341 A.2d 218 (1975), the employer (Inter-State) having filed a petition for termination of workmen's compensation benefits, we determined that there was substantial competent evidence in the record to support the referee's determination that John W. Myers (claimant) was only partially disabled. We specifically held that the Workmen's Compensation Appeal Board (Board) was in error when it reversed the referee's determination of partial disability and substituted a finding that the claimant continued to be totally disabled.

However, we concluded that it was an error of law for the referee to award partial disability without a finding that there was work available which the claimant could perform. This conclusion was based on our holding in Freedman v. Crown Paper Board Co., 9 Pa. Commonwealth Ct. 260, 307 A.2d 466 (1973). Accordingly, we remanded to the Board for resubmission to the referee for a finding on the issue of the

[ 39 Pa. Commw. Page 431]

    availability of work that the claimant could perform and for the referee to make a further order.

In Freedman, as here, the referee in the first instance found only that the total disability had changed to partial disability, and we held that it was an error of law to award partial disability without a finding that there was work available which the claimant could perform. Judge Wilkinson succinctly wrote on this issue what is equally applicable to the instant case:

Since there is evidence both ways on this critical issue, we are not confronted with the problem of which party had the burden of proof. This record will support a finding either way. This Court cannot presume that the Board concluded that work was available merely because there was an award of partial disability. There must be a finding on this point.

9 Pa. Commonwealth Ct. at 262, 307 A.2d at 467.

Following our remand order, the Board remanded the case to Referee Noonan,*fn1 who made the following key findings and entered an order directing that the claimant be paid ...


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