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COASTAL TANK LINES v. WORKMEN'S COMPENSATION APPEAL BOARD (JOHN H. SWICK) (02/24/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 24, 1983.

COASTAL TANK LINES, INC., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (JOHN H. SWICK), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of John H. Swick v. Coastal Tank Lines, No. A-78890.

COUNSEL

Theodore E. Breault, for petitioner.

Kenneth E. Fox, Jr., for respondent, John H. Swick.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 72 Pa. Commw. Page 309]

Coastal Tank Lines, Inc. (Employer) appeals a Workmen's Compensation Appeal Board order which affirmed the referee's dismissal of its Termination Petition. We affirm.

John Swick (Claimant), a truck driver for Employer, sustained a job-related injury on January 13, 1978 and has, since then, received total disability benefits. Employer filed a Termination Petition,*fn1 alleging that Swick had fully recovered as of July 18, 1979.

[ 72 Pa. Commw. Page 310]

Conflicting medical evidence*fn2 was presented to the referee. Employer does not challenge here, as he did before the Board, the referee's finding that the Claimant is partially disabled. Instead, Employer asserts that the referee erred in rejecting the evidence of its vocational expert by finding that

21. The defendant [Employer], although given the opportunity, failed to present credible evidence or testimony to show that work was available to the claimant which his limited physical condition would permit him to perform.

Employer argues that this evidence was uncontroverted and clearly established the availability of light work capable of being performed by Claimant. We disagree.

[ 72 Pa. Commw. Page 311]

It is well settled that the burden is on the employer to show that disability has ended or has been reduced and that (1) work is available to claimant and (2) claimant is capable of doing such work. State Products Corp. v. Workmen's Compensation Appeal Board, 61 Pa. Commonwealth Ct. 366, 434 A.2d 207 (1981). When the decision below is against the party with the burden of proof, our scope of review is limited to determining whether the findings of fact are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence. Roadway Express, Inc. v. Workmen's Compensation Appeal Board, 54 Pa. Commonwealth Ct. 169, 420 A.2d 774 (1980). Finally, questions of credibility and resolution of conflicting testimony are for the referee, not the reviewing court. Padilla v. Chain Bike Corp., 27 Pa. Commonwealth Ct. 190, 365 A.2d 903 (1976).

Employer has not challenged the referee's finding that Claimant is partially disabled and unable to drive a truck. Once there is a showing that a claimant, although unable to do the type of work in which he was engaged at the time of his injury, is capable of some type of work, the employer must then show the availability of work within claimant's capabilities. State Products Corp.

Employer presented to the referee the deposition of Mr. Michael Carrick, Manager of the Job Bank*fn3 of the Pennsylvania State Employment Service. Based on information from defense counsel,*fn4 Mr. Carrick developed

[ 72 Pa. Commw. Page 312]

    a list of jobs available to Claimant. This, however, only met a part of Employer's burden. The referee found that Employer failed to establish Claimant's ability to perform available work, and we will not say that he capriciously disregarded competent evidence*fn5 in so finding.

Accordingly, the order of the Workmen's Compensation Appeal Board is affirmed.

Order

The Workmen's Compensation Appeal Board order No. A-78890, dated December 4, 1980, is hereby affirmed.

Disposition

Affirmed.


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