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BURGETTSTOWN AREA SCHOOL DISTRICT AND INSURANCE COMPANY NORTH AMERICA v. COMMONWEALTH PENNSYLVANIA (11/15/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 15, 1979.

BURGETTSTOWN AREA SCHOOL DISTRICT AND INSURANCE COMPANY OF NORTH AMERICA, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND MAGDELENE SLONE, RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Magdelene Slone v. Burgettstown Area School District, No. A-74550.

COUNSEL

Raymond F. Keisling, with him Will & Keisling, for petitioners.

Arnold Turner, Jr. and John Brunner, for respondents.

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

Author: Craig

[ 47 Pa. Commw. Page 327]

This appeal, by the employer's insurance carrier from a decision of the Workmen's Compensation Appeal Board (board) affirming a referee's dismissal of a petition to terminate a notice of compensation payable, leaves us without evidence of a crucial fact. Accordingly, we must remand.

Before her injury, claimant was a physical education instructor. As a result of her work-related accident, she continues to suffer from the effects of

[ 47 Pa. Commw. Page 328]

    ruptured discs in the lumbar area of the spine and cervical area of the neck.

Because the insurer moved to terminate the present compensation agreement, it bore the burden before the compensation authorities of showing the termination or change of claimant's disability and the availability of work which claimant is capable of doing. Workmen's Compensation Appeal Board v. Pennsylvania School Boards Association, 28 Pa. Commonwealth Ct. 618, 369 A.2d 503 (1977).

Beyond dispute, the medical testimony established that claimant is at least partially disabled, operates under certain physical limitations, and is currently incapable of returning to the position of physical education instructor, a job which would require her to demonstrate sundry body movements to her students.*fn1

The issue is whether or not claimant is capable of performing assignments as a substitute classroom teacher, given her present physical limitations. There is no dispute as to the availability of that kind of work.

Work at the blackboard is the crux of the problem in this case.

The referee made the following finding of fact, upon which, alone, rests the conclusion that claimant could not perform classroom teacher work:

4. Claimant could not perform the duties of a classroom teacher because she would have difficulty

[ 47 Pa. Commw. Page 329]

    working at the blackboard because this would require hyperextension of the neck and this would produce intolerable discomfort in her neck. There would also be restrictions in regard to her low back.*fn2

If claimant were required to use a blackboard, part of her physician's testimony would amply support that finding of fact; he said that she would have "difficulty" working at a blackboard.*fn3

However, nothing in the record before the referee supports his assumption that use of a blackboard is an essential or substantial part of the duties of a substitute. The above opinion of claimant's doctor is the only reference to blackboards in the record.

In reviewing this finding of fact, the board adopted the same assumption:

[ 47 Pa. Commw. Page 330]

No doubt, the referee reasoned that even as a classroom teacher, claimant would be required to use the blackboard, and the medical testimony indicates pain in such use would prevent her from using the blackboard, which, it is Page 330} known, is a fundamental function of a classroom teacher. (Emphasis added.)

Although it may seem to be a matter of common sense that classroom teachers would be required to use a blackboard, the problem in this case is that the work the employer proved to be available to claimant was that of a substitute classroom teacher.*fn4

The testimony as to the duties of a substitute teacher, presented by a high school principal, strongly indicate that, in fact, a substitute teacher's primary function is simply to keep order in the classroom.*fn5 Thus, because the record shows the duties of a substitute teacher to be different in some measure,

[ 47 Pa. Commw. Page 331]

    we are not prepared to conclude that the assumption that claimant would be required to use a blackboard is an inference that could reasonably be made without a specific finding based on the record. The referee's crucial finding as to use of the blackboard is simply not supported by competent evidence in the record.

In this case, under Forbes Pavilion Nursing Home Inc. v. Workmen's Compensation Appeal Board, 18 Pa. Commonwealth Ct. 352, 336 A.2d 440 (1975), a remand by the board would have been proper, even under the narrower limitations on the board's power to remand under the 1972 amendments to Section 423 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยงยง 853, 854.

Hence, we must remand this case to the board for a specific finding, based on competent evidence, on the issue of whether or not claimant, as a substitute teacher, would be required to use a blackboard.

If the evidence supports a finding that claimant would not be required to use a blackboard, a recomputation of benefits based on a partial disability would appear to be appropriate.*fn6 See Yellow Cab Co. v. Workmen's Compensation Appeal Board, 37 Pa. Commonwealth Ct. 337, 390 A.2d 880 (1978).

[ 47 Pa. Commw. Page 332]

Order

And Now, this 15th day of November, 1979, the order of the Workmen's Compensation Appeal Board, dated June 1, 1978, at Docket No. A-74550 is vacated, and the case remanded to the Workmen's Compensation Appeal Board for disposition consistent with this opinion.

Disposition

Order vacated. Case remanded.


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