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

COMMONWEALTH COURT OF PENNSYLVANIA


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 compensation for a 50-percent permanent partial disability.

5. . . . [B]ased on competent medical evidence, of record, claimant as of March 14, 1974, as a result of accidental injury of July 27,

[ 39 Pa. Commw. Page 4321967]

, still suffers a 50% permanent partial disability which is reflected in a similar loss of earning power.

6. . . . [B]ased on testimony of record, light work was made available to the claimant, work of type of which claimant could perform.

7. . . . [T]he burden of proof has been met to establish availability of work at the presumed level of ability.

The claimant appealed Referee Noonan's decision and the Board sustained the appeal and again remanded the case to the referee. Inter-State has appealed*fn2 this order of remand*fn3 by the Board. We reverse.

[ 39 Pa. Commw. Page 433]

It must be kept in mind that we remanded for the purpose of securing from the referee a finding on the issue of the availability of work that claimant could perform. Our previous opinion indicated that Inter-State presented evidence at the hearing before the referee in the form of testimony from a psychologist who qualified as a vocational expert, knowledgeable in the field of job rehabilitation and placement for disabled persons. He testified that there were approximately a dozen specific jobs available in the area which claimant could perform. Claimant's medical witness affirmed that claimant was able to do some of the light jobs that the vocational expert described. Workmen's Compensation Appeal Board v. Inter-State Tile and Mantel Co., supra. The Board, in its opinion in support of its last remand order, admits that "there is evidence of record on both sides of this issue [availability of work that claimant could perform]."

The weighing of testimony is solely within the province of the referee factfinder. Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973). Referee Noonan made findings of fact, supported by substantial evidence of record, that light work was made available to the claimant, work of the type which claimant could perform,*fn4 and that work was available to the claimant

[ 39 Pa. Commw. Page 434]

    at the level of claimant's ability, reflecting his permanent partial disability of 50 percent, as of March 14, 1974.

Therefore, Referee Noonan has made adequate findings on all crucial issues, findings which are supported in the record by substantial and competent evidence and which fulfill our previous remand order and the requirements of our holding in Freedman v. Crown Paper Board Co., supra. Accordingly, the remand order of the Board, under date of August 9, 1977, was erroneous and beyond the power of the Board and must be reversed.

[ 39 Pa. Commw. Page 435]

Order

And Now, this 27th day of December, 1978, the order of the Workmen's Compensation Appeal Board, under date of August 9, 1977 and docketed at No. A-73204, remanding the record to the referee and vacating his order of April 15, 1977 and setting aside his findings of fact and conclusions of law, is reversed, and the order of the referee, under date of April 15, 1977, is reinstated. Accordingly, it is ordered that judgment be entered in favor of John W. Myers and against Inter-State Tile and Mantel Co., Inc., in the amount of $26.25 per week, beginning March 14, 1974 and continuing until such time as disability changes in nature or extent or ceases and terminates, together with interest at the rate of 10 percent per annum on deferred payments of compensation from the date due to the date paid, all within the terms and limits of The Pennsylvania Workmen's Compensation Act.

Disposition

Reversed. Order of referee reinstated.


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