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decided: June 23, 1981.


Appeal from the Order of the Workmen's Compensation Appeal Board in case of Timothy L. Wenzel v. International Petroleum Service, No. A-77223.


William J. Schaaf, with him John C. Brydon, Marsh, Spaeder, Baur, Spaeder & Schaaf, for petitioner.

No appearance for respondent.

President Crumlish and Judges Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 60 Pa. Commw. Page 142]

The petitioner*fn1 seeks review of a determination of the Board*fn2 which reversed a referee's decision and reinstated the payment of total disability benefits to the claimant.*fn3

The claimant suffered a fractured elbow on March 1, 1977, in the course of his employment with the petitioner and a compensation agreement was later executed

[ 60 Pa. Commw. Page 143]

    pursuant to which the claimant received benefits for total disability. The petitioner sought to terminate those benefits as of October 4, 1977, but that petition was denied, and a second termination petition was subsequently filed, alleging that the claimant had fully recovered from his injury on or before December 5, 1978. After a hearing and the taking of testimony regarding this second petition, the referee found that, after the claimant's separation from his employment with the petitioner, he had obtained work as a truck driver for Brokenstraw Oil Corporation on June 13, 1978 from which he was discharged on that same day for a reason unrelated to his disability: his involvement in an accident causing extensive damage to his new employer's equipment.*fn4 An employee of Brokenstraw testified that the claimant would still have been employed if not for that accident. The referee thereupon determined that, although the claimant had a residual disability, there was work available which he could perform on June 13, 1978 and his benefits were therefore reduced from total to partial disability. On appeal, the Board reversed, holding that the claimant's disability "could well have caused the accident . . ." which resulted in his discharge and that "[t]he fact that claimant was terminated because of said accident indicates clearly that the said truck driving job was not available to claimant after claimant had experienced the accident." The Board then concluded that the petitioner had not met its burden of proving that work was available which the claimant was capable of performing*fn5 and his total disability compensation was reinstated.

[ 60 Pa. Commw. Page 144]

The petitioner contends that the referee's findings of fact were supported by substantial evidence, that his conclusions of law were consistent with those findings and that the Board erred by substituting its own findings of fact and conclusions of law for those of the referee.*fn6

While we agree there was substantial evidence to support the referee's finding that the claimant's accident was not caused by his disability, we must affirm the Board's conclusion that there was insufficient evidence to show that work was available to the claimant.

The only evidence presented by the petitioner as to the availability of work was the testimony of the employee of Brokenstraw to the effect that the claimant was hired as a truck driver; that he performed that job; that he was discharged due to an accident (which was unrelated to his disability); and that he would still be employed if not for this accident. Such testimony, however, establishes only that employment was available to the claimant sometime in the past and that he performed that work, but there was no showing that at the time of this termination petition, there was work as a truck driver available to him.

In Jessop Steel Co. v. Workmen's Compensation Appeal Board, 10 Pa. Commonwealth Ct. 186, 309 A.2d 86

[ 60 Pa. Commw. Page 145]

(1973), we specifically found that an employer had not met its burden of proving availability of work by showing that at a prior time the claimant could have taken work as a janitor when it was clear to us that such a position was no longer open. Similarly here, although the petitioner has demonstrated that work as a truck driver was available to the claimant in June of 1978, there was no showing that in December of 1978, when this termination petition was filed, such a position was still available with Brokenstraw*fn7 or, alternatively, that other truck driving work was available in the local labor market.*fn8

We must, therefore, agree with the Board that the petitioner did not provide sufficient evidence that work was available to the claimant and we will affirm the reinstatement of benefits for total disability.


And Now, this 23rd day of June, 1981, the order of the Workmen's Compensation Appeal Board in the above-captioned matter is affirmed;

And It Is Further Ordered that judgment be entered in favor of Timothy L. Wenzel against International Petroleum Service and/or its insurance carrier and they are directed to pay compensation from December

[ 60 Pa. Commw. Page 1464]

, 1978, in the amounts established in the Notice of Compensation Payable relevant to this matter and any deferred compensation shall bear interest at the rate of ten percent (10%) per annum from the due date thereof until the date of payment.



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