Appeal from the Order of the Workmen's Compensation Appeal Board in case of Bernadette R. Krupski v. Community Medical Center, No. A-74455.
Joseph Lenahan, with him John R. Lenahan, Jr., for petitioner.
Todd J. O'Malley, for respondent.
Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.
[ 47 Pa. Commw. Page 567]
Community Medical Center (CMC) has appealed from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's dismissal of CMC's Petition for Modification of compensation benefits being paid to Bernadette Krupski. We affirm.
Ms. Krupski was injured while working for CMC as a practical nurse. For two years thereafter, CMC's insurance carrier paid compensation to Krupski for total disability. In May 1977, CMC's insurance carrier filed a Petition for Modification seeking to terminate compensation payments on the ground that Ms. Krupski's disability had decreased to a thirty percent (30%) partial disability. A hearing was held before a referee, at which time the deposition of an Orthopedic surgeon who had examined Ms. Krupski for CMC was introduced into evidence. The Orthopedic surgeon's
[ 47 Pa. Commw. Page 568]
unrebutted testimony was to the effect that Ms. Krupski's disability had decreased to thirty percent (30%) and that, while Ms. Krupski would be able to do light sedentary work, she would not be able to engage in prolonged standing or sitting. CMC also presented the testimony of a vocational specialist, who, after reviewing the Orthopedic surgeon's deposition, was of the opinion that there were four positions then available to Ms. Krupski. Three of these positions involved telephone solicitation and one was a telephone switchboard operator. The vocational specialist further testified that, while he did not know what percentage of time Ms. Krupski would be required to sit in these jobs, the jobs were primarily sitting jobs. He opined, however, that Ms. Krupski probably would be able to change her position at some time during the work shift of each job. The vocational specialist did not know the length of the workshift of any of the jobs except that of telephone switchboard operator, which was a full time, eight hour per day position.
The referee found as fact that Ms. Krupski could not perform any of the positions presented by the vocational specialist. The referee concluded that CMC failed to prove that work was actually available to Ms. Krupski which she could perform with her physical limitation and that Ms. Krupski was therefore totally disabled and entitled to continued compensation payments. The Board, without taking additional evidence, affirmed the referee's decision.
In order to modify Ms. Krupski's compensation benefits, CMC was required to prove that work was available to Ms. Krupski and that she was capable of performing the work. A-1 Motors, Inc. v. Workmen's Compensation Appeal Board, 35 Pa. Commonwealth Ct. 238, 240, 385 A.2d 632, 633 (1978). There is no dispute in this case that CMC proved that work existed in Ms. Krupski's vicinity. CMC contends that the referee
[ 47 Pa. Commw. Page 569]
erred in finding that CMC failed to meet its burden of proving that Ms. Krupski was capable of performing this work. CMC claims that they met their burden of proof by the unrebutted ...