Appeal from the Order of the Workmen's Compensation Appeal Board in case of Frank Illuzzi v. RCA Corporation, No. A-73823.
John R. Lenahan, Jr., with him Lenahan, Dempsey, Murphy & Piazza, for petitioner.
Harry P. O'Neill, with him Anthony A. Lawrence, for respondent.
Judges Wilkinson, Jr., Mencer and MacPhail, sitting as a panel of three. Opinion by Judge Mencer.
[ 46 Pa. Commw. Page 412]
RCA Corporation (RCA) appeals an order of the Workmen's Compensation Appeal Board (Board) denying RCA's petition to modify benefits payable to Frank Illuzzi (claimant). We affirm.
As the result of a work-related injury to his back on July 12, 1972, claimant entered into an agreement with RCA for temporary total disability benefits of $94 per week. RCA filed its petition to modify, based on the findings of Dr. Cecil Park, an orthopedic surgeon, that claimant's disability had decreased to a 20-percent temporary partial disability. After several hearings, the referee found that claimant was capable of sedentary employment, but he remained totally disabled because RCA failed to show that work was available to claimant within his limitations. Upon the Board's affirmance, RCA appealed to this Court.
In Workmen's Compensation Appeal Board v. Pennsylvania School Boards Association, 28 Pa. Commonwealth Ct. 618, 620-21, 369 A.2d 503, 505 (1977), we stated:
[ 46 Pa. Commw. Page 413]
When the employer is the moving party [in a modification petition] he has the burden of showing that the disability has ended or has been reduced and that (1) work is available to the claimant and (2) claimant is capable of doing such work. See Parkview Hospital, Inc. v. Workmen's Compensation Appeal Board, 20 Pa. Commonwealth Ct. 567, 342 A.2d 137 (1975); Servomation Corp. v. Workmen's Compensation Appeal Board, 15 Pa. Commonwealth Ct. 199, 325 A.2d 344 (1974).
To meet this burden, RCA presented Dr. Park's testimony that claimant had sufficiently recovered from his injury to return to his former position at RCA and the testimony of a vocational specialist that three other full-time sedentary positions were available to claimant within his area of residence. In view of this and other evidence that claimant was capable of sedentary work, RCA claims the referee erred in finding that claimant was still totally disabled. We disagree.
Claimant's physician, Dr. Hood, while indicating that claimant could do sedentary work, testified that claimant was capable only of part-time work even under conditions that involved no lifting and allowed claimant to periodically change his position for comfort. In addition, claimant testified that he was unable to work even on a part-time basis, because of the pain in his back, when he attempted to return to his former position at RCA in January 1973. In light of this testimony and RCA's failure to show that part-time employment of a sedentary nature was available to claimant, we cannot say the referee capriciously disregarded competent evidence in finding RCA had not met its burden of ...