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decided: March 15, 1979.


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


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 you have?

A. At the time I remember I had a lot. About close to 30.

Q. Would you have hired [claimant] with his physical disability in preference to another man without any handicap?*fn3

A. Are you asking me if I had my choice?

Q. Yes.

A. I wouldn't hire him because I had pretty many applicants that are physically well.

[ 41 Pa. Commw. Page 278]

The testimony of the general manager just quoted provides rather dramatic confirmation of an observation made by Justice Musmanno: "To say that an employer would take a seriously disabled person in preference to one who is without physical infirmity is to indulge in fantasy which has no place in the realism of the law." Petrone v. Moffat Coal Co., 427 Pa. 5, 11, 233 A.2d 891, 894-95 (1967).

As to the other five jobs suggested by employer's witness, claimant's testimony establishes that none of them was available. Each of the remaining positions had either been filled, or required skills or qualifications not possessed by claimant.*fn4

We fully appreciate that it is the referee's duty to evaluate witness credibility and resolve any conflicts raised by the evidence. However, even if the referee chose to disregard the claimant's offered proof on the issue of availability in toto, the record would still fail to provide substantial evidence satisfying the employer's burden of proof on this crucial issue; absent such proof claimant must be compensated as for total disability. Yellow Freight System, Inc. v. Workmen's Compensation Appeal Board, 32 Pa. Commonwealth Ct. 147, 377 A.2d 1304 (1977).*fn5

[ 41 Pa. Commw. Page 279]

Accordingly, we will enter the following


And Now, March 15, 1979, the order of the Workmen's Compensation Appeal Board at No. A-72947 dated November 10, 1977 reversing the referee's suspension of compensation is hereby affirmed, and it is ordered that judgment be entered in favor of the claimant, David P. Diefenderfer, and against the petitioner, Weathergard, Inc. and/or its insurer, Pennsylvania National Mutual Casualty Insurance Co., in an amount consistent with resumption of compensation under the Notice of Compensation Payable commencing November 12, 1976, with interest on all deferred installments of 10 percent per annum with counsel fees as agreed upon by claimant and his attorney the payment of which shall be the obligation of claimant, all in accordance with the provisions of The Pennsylvania Workmen's Compensation Act.



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