decided: June 20, 1980.
ST. JOSEPH HOSPITAL, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND DONNA K. STOKES, RESPONDENTS
Appeal from the Order of the Workmen's Compensation Appeal Board in case of Donna K. Stokes v. St. Joseph Hospital, No. A-76520.
Christopher S. Underhill, Hartman, Underhill and Brubaker, for petitioner.
T. S. Trigg, for respondent, Donna K. Stokes.
Judges Wilkinson, Jr., MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 52 Pa. Commw. Page 266]
Petitioner, St. Joseph Hospital (employer), appeals an order of the Workmen's Compensation Appeal Board affirming a referee's decision granting claimant's petition to set aside a final receipt.*fn1 We affirm.
For purposes of this appeal the facts are not in dispute and little in the way of summary is needed. Claimant sustained a compensable injury on September 19, 1977 for which she received compensation until November 14, 1977, when her treating physician released her for a return to work provided certain injury-related restrictions were observed. Shortly thereafter claimant signed a final receipt and commenced a series of unsuccessful attempts, both in person and by telephone, to secure light duty work with employer.
A single narrow legal issue is presented concerning the burden of proof an employer must sustain in order to demonstrate the availability of work within a claimant's physical limitations. More specifically, employer argues that where jobs within the claimant's capabilities
[ 52 Pa. Commw. Page 267]
are shown to exist*fn2 its burden of showing the availability of work is satisfied even in a case where the claimant's applications are rejected, provided the failure to secure such employment is shown not to be related to the disability.*fn3
Employer has failed to offer authority for the foregoing proposition which we hold to be without merit. As this Court held in Weathergard, Inc. v. Workmen's Compensation Appeal Board, 41 Pa. Commonwealth Ct. 275, 398 A.2d 1103 (1979), where specific jobs are offered to satisfy an employer's burden on the issue of availability a claimant can vitiate the probative value of such evidence by showing that such jobs were not in fact available to the claimant.
Accordingly, we will enter the following
And Now, June 20, 1980, the order of the Workmen's Compensation Appeal Board at Docket No. A-76520 dated June 7, 1979 is hereby affirmed and it is ordered that judgment be entered in favor of claimant,
[ 52 Pa. Commw. Page 268]
Donna K. Stokes and against respondent St. Joseph Hospital and/or its insurance carrier, Insurance Company of North America in the amount of $99.50 per week from November 15, 1977 until properly terminated or modified under provisions of The Pennsylvania Workmen's Compensation Act. Interest at a rate of 10% per annum is assessed against all deferred compensation and respondent and/or its insurance carrier is directed to pay 20% of this award to claimant's counsel with the remainder to be paid to claimant.