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JOHN F. DAVIS COMPANY v. COMMONWEALTH PENNSYLVANIA (11/13/79)

decided: November 13, 1979.

JOHN F. DAVIS COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ESTHER LUCAS, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Esther Lucas v. John F. Davis Company, No. 74232.

COUNSEL

John R. Lenahan, Jr., with him Lenahan, Dempsey, Murphy & Piazza, for petitioner.

William Malone, with him John J. Brazil, for respondents.

Judges Mencer, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 47 Pa. Commw. Page 292]

This is an appeal from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's denial of a petition to terminate the benefits of Esther Lucas (Claimant) filed by the John F. Davis Company (Employer).

After two hearings the referee denied Employer's petition to terminate benefits finding that Claimant was totally disabled because she was unable to perform her regular work and was only able to do light, sedentary work which was not available to her. Employer appealed the referee's decision to the Board which then remanded the case to the referee to permit Employer to offer evidence of the availability of work suitable to Claimant's physical condition. At the remand hearing a vocational specialist testified for Employer that there were four available jobs in the area where Claimant resided entailing light, sedentary work.*fn1 The referee found that the mere fact that there was evidence that such jobs "existed" did not mean that they were "available" to Claimant. Previously, our Court has held that if a job which a claimant is capable of performing exists in the local job market, that claimant is not totally disabled. See Dreher v. Workmen's Compensation Appeal Board,

[ 47 Pa. Commw. Page 29338]

Pa. Commonwealth Ct. 473, 393 A.2d 1081 (1978). The employer is not required to show specific job openings as Employer did here. Dreher, id.

The referee also found as a fact that in the jobs mentioned by the vocational specialist Claimant would still be required to bend her neck, use her arms, shoulders and hands, and that Claimant's work would be complicated by her emotional overlay. Accordingly, the referee concluded for the second time that Claimant was totally disabled because there were no light, sedentary or restricted-type jobs available to her.

On Employer's appeal to the Board a second time, a majority of the members of the Board found that Employer had failed to meet its burden of proving that work existed which Claimant was able to do. The Board held as a matter of law that Employer's vocational expert was incompetent to express an opinion whether Claimant could perform a specific job because the expert was not aware of Claimant's educational and mental abilities and industrial background. This ruling was erroneous for the reason that no objection was made to the witness' competency at the hearing.*fn2 In Workmen's Compensation Appeal Board v. Czepurnyj, 20 Pa. Commonwealth Ct. 305, 340 A.2d 915 (1975), we held that failure to object to a medical expert's competency at the hearing before the referee constituted a waiver of that objection. We are of the opinion that the same rule applies here. Accordingly, we hold that the Board's sua sponte ruling that the vocational specialist was incompetent to testify was an error of law.

The Board held that the witness was incompetent because he was not familiar with Claimant's background. Employer ...


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