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WEATHERGARD v. COMMONWEALTH PENNSYLVANIA (03/15/79)

decided: March 15, 1979.

WEATHERGARD, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND DAVID P. DIEFENDERFER, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of David P. Diefenderfer v. Weathergard, Inc., No. A-72947.

COUNSEL

Richard A. Bausher, with him Stevens & Lee, for petitioner.

Robert A. Weinert, for respondent.

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

Author: Wilkinson

[ 41 Pa. Commw. Page 276]

This is an appeal from a decision of the Workmen's Compensation Appeal Board (Board) reversing a referee's decision suspending total disability compensation pursuant to Section 413(a) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 772. We affirm.

Claimant sustained a work-related injury on February 28, 1973. He received total disability compensation from March 15, 1973 until benefits were suspended by order of the referee on November 12, 1976.*fn1 The Board concluded that "[t]he Referee's Findings of Fact Nos. 5 and 7 are not founded on sufficient competent evidence. . . ."*fn2

[ 41 Pa. Commw. Page 277]

The referee sustained the employer's request for a supersedeas on November 12, 1976, in our opinion an action not inappropriate in light of the testimony then before the referee. On behalf of the employer, a certified employment counselor testified to the availability of six specific jobs, the duties of which an orthopedic surgeon had reported were within the claimant's capabilities. The claimant testified at the supersedeas hearing that, at least with reference to the job as cab driver, he would not be physically able to perform all the necessary duties. Nevertheless, it was not at that time unreasonable for the referee to conclude that suitable employment was available justifying the grant of supersedeas.

Employer's termination petition, however, must be denied because no evidence of job availability was presented at the March termination hearing. With respect to the cab driving job the testimony supplied by the company's general manager leaves no doubt that such employment was unavailable to claimant.

Q. When [claimant] applied for a job, how many openings did you have?

A. I would say roughly 6, no more than 6.

Q. And how many applicants did ...


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