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JAMES C. HALLORAN v. COMMONWEALTH PENNSYLVANIA (01/31/80)

decided: January 31, 1980.

JAMES C. HALLORAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, SCHOOL DISTRICT OF ERIE AND PENNSYLVANIA MANUFACTURERS ASSOCIATION INSURANCE COMPANY, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of James C. Halloran v. School District of Erie, No. A-75897.

COUNSEL

James P. Lay, III, of Gifford, Lay, Johnson & Ridge, for appellant.

Howard N. Plate, of Plate, Doyle, Hutzelman and Berlin, for appellee.

Judges Crumlish, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Crumlish, Jr. Judge DiSalle did not participate in the decision in this case.

Author: Crumlish

[ 49 Pa. Commw. Page 145]

James C. Halloran appeals a decision of the Workmen's Compensation Appeal Board (Board) awarding benefits for partial disability. We affirm.

Halloran, a custodian for the School District of Erie (School District), sustained an accidental injury on February 6, 1974. Halloran and employer-School District executed a workmen's compensation agreement providing coverage through May 26, 1975. The final receipt was filed May 30, 1975.

The present litigation was instituted on July 2, 1975 when Halloran filed a petition to set aside the final receipt. A referee found Halloran to be totally disabled and ordered payment of benefits for total disability commencing May 27, 1975.

The School District appealed the determination to the Board and simultaneously filed a separate petition for suspension of compensation. The Board set aside the referee's order and remanded "to determine whether there is work available which claimant can perform" and then to determine (1) whether total disability should continue; (2) whether partial disability should be allowed on the basis of lost earnings; or (3) whether the suspension of compensation was proper initially.

[ 49 Pa. Commw. Page 146]

On remand, employer offered testimony of availability of suitable employment for Halloran and medical opinion as to his ability to perform such employment. The referee concluded that, although Halloran could not return to his previous employment, "as of June 1, 1975, there was work available which claimant was capable of performing even [with] said residual disability" and awarded benefits for partial disability to commence June 1, 1975. The Board affirmed.

In a workmen's compensation case, once the claimant establishes that he is unable to do the type of work he was engaged in when injured, the employer has the burden of showing the availability of work which claimant is capable of performing. Yellow Cab Co. v. Workmen's Compensation Appeal Board, 37 Pa. Commonwealth Ct. 337, 390 A.2d 880 (1978).

Thus, the sole question on review is whether the evidence presented by the School District is sufficient to support the Board's determination that suitable work was available as of June 1, 1975. A careful review of the record ...


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