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ELKVIEW COUNTRY CLUB v. COMMONWEALTH PENNSYLVANIA (07/18/79)

decided: July 18, 1979.

ELKVIEW COUNTRY CLUB, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND MYRON R. DENNY, SR., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Myron R. Denny, Sr. v. Elkview Country Club, No. A-73436.

COUNSEL

John C. Mascelli, with him Lenahan, Dempsey, Murphy and Piazza, for petitioner.

William F. Bradican, for respondent.

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

Author: Wilkinson

[ 44 Pa. Commw. Page 323]

Employer is appealing an adverse ruling by the Workmen's Compensation Appeal Board (Board) which affirmed the referee's setting aside a final receipt because claimant's disability was continuing and because the referee found the employer failed to demonstrate that there was appropriate work available to the claimant. We affirm.

[ 44 Pa. Commw. Page 324]

On March 11, 1975 claimant sustained a back injury while moving lockers at work. He obtained workmen's compensation benefits for the weeks of April 10, 1975 through September 28, 1975. On September 28, 1975 claimant informed employer he had a slip from his doctor that he could go back to work. He was informed by employer that he had been replaced and that there was no work available for him. From the testimony it seems clear that claimant made repeated efforts to secure work from employer at that time. On October 2, 1975, a compensation adjuster called on claimant and delivered his final check. Claimant signed a final receipt.

On August 25, 1976, claimant filed a petition to set aside the final receipt on the grounds that he was permanently and totally disabled from performing his usual and normal occupation.

The issue here is not whether claimant was disabled at the time he signed the final receipt; both sides agree he was. The issue is whether there was suitable work available for him. The employer maintains that he carried his burden of proof by presenting testimony of a vocational specialist that there were five different jobs available within the relevant labor market. Employer contests referee's findings of fact numbers nine and ten which say in pertinent part:

9. [The vocational counselor] testified as to availability of five jobs, namely: McDonald's Restaurant, Dunmore, Pa. which required the claimant to stand on his feet for prolonged periods of time which is not within his physical capacity; Triangle Pipe and Tube Company, said job not being presently available, however sometime in the future will be available; Gentex Corporation, Simpson, Pa., not presently available at the hearing; High Pressure Cleaning, Inc., Peckville, Pa. had a position available

[ 44 Pa. Commw. Page 325]

    in Carbondale, Pa., said job required long standing and constant walking which was not within the physical capacity of the claimant. Scranton Wiping Cloth, said job required long standing and not within the physical capacity of the claimant. Globe Security, Carbondale, Pa., said employment being from 7:30 a.m. to 4 p.m. and required sitting, standing and walking and inspecting buildings for security. Said security job also required checking I.D. Cards at a plant gate, answering questions from visitors and ...


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