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CANNON BOILER WORKS v. COMMONWEALTH PENNSYLVANIA (04/16/81)

decided: April 16, 1981.

CANNON BOILER WORKS, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ROGER NORRIS, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Roger Norris v. Cannon Boiler Works, Inc., No. A-76678.

COUNSEL

Stuart W. Benson, III, Brandt, Milnes, Rea & Malone, for petitioner.

Alexander J. Pentecost, for respondent.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers. This decision was reached prior to the expiration of the term of office of Judge Wilkinson.

Author: Rogers

[ 58 Pa. Commw. Page 547]

In this workmen's compensation case, the claimant, Roger Norris, suffered a compensable injury in the course of his employment by Cannon Boiler Works, Inc. (Cannon) on February 17, 1976, when a conveyor assembly fell and broke both of his legs. At the time of the injury, the claimant was earning an average weekly wage of $238.35. Compensation was paid for total disability from the date of injury until April 4, 1977, when the claimant returned to work and was given light work and paid an average weekly wage of $248.35. A supplemental agreement was entered into on April 12, 1977, suspending the claimant's compensation benefits.*fn1

The claimant continued to perform the light duties of repairing small hand equipment until he and 13 other employees were laid off on May 14, 1977, due to a falling off of business. A review petition was filed by the claimant on May 19, 1977, alleging that he had been laid off, was disabled, and was entitled to compensation. The employer filed a responsive answer on July 13, 1977, denying the allegations. On

[ 58 Pa. Commw. Page 548]

July 14, 1977, the claimant secured employment from another company as an apprentice tool-and-die maker, and his average weekly wage at this job was less than he had been paid by his previous employer. On August 12, 1977, the president of Cannon telephoned Norris to offer him the job of doing light work which had become available again. The president spoke to Mrs. Norris who said the claimant had another job and did not wish to return to Cannon. There was no further communication between the parties.

After a hearing, the referee found that the claimant was disabled for any light work which the employer had available.*fn2 The referee awarded the claimant full compensation payments for the period of May 15, 1977, to and including July 13, 1977, which payments are not in dispute here, and two-thirds of claimant's loss of wages after July 13, 1977, reflecting his new employment.*fn3

The employer appealed from the referee's order to the Workmen's Compensation Appeal Board. The Board affirmed the referee's order and this appeal followed.

[ 58 Pa. Commw. Page 549]

The general rule is that, once the claimant has discharged his burden of proving that, because of his injury, he is unable to do the type of work he was engaged in when injured, the employer has the burden of proving that other work is available to the claimant which he is capable of performing. Barrett v. Otis Page 549} Elevator Co., 431 Pa. 446, 246 A.2d 668 (1968). This Court has recently held that, if the employer can establish that light work which a claimant could do was at all times available to him, without loss of earning power, then the employer is relieved of ...


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