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MCCRORY STORES v. WORKMEN'S COMPENSATION APPEAL BOARD (HOPKINS) (01/31/84)

decided: January 31, 1984.

MCCRORY STORES, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (HOPKINS), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of William J. Hopkins v. McCrory Stores, No. A-82195.

COUNSEL

Herman A. Gailey, III, Stetler & Gribbin, for petitioner.

Sherman A. Kusin, Harkness, Friedman, Kusin & Britt, for respondents.

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

Author: Crumlish

[ 80 Pa. Commw. Page 77]

McCrory Stores appeals a Workmen's Compensation Appeal Board order which reversed a referee's decision to grant its modification petition. We reverse the Board's order and remand for computation.

William Hopkins, an employee of McCrory, suffered a work-related back injury. He then executed an agreement for compensation with McCrory providing for temporary total disability. McCrory alleges that Hopkins is now capable of returning to work and that the agreement must be modified from temporary total to partial disability.

When an employer seeks to modify a workmen's compensation agreement by asserting that a claimant's disability is no longer total, the employer has the burden of proving that such disability has been reduced and that work is available which is within the employee's capability.*fn1 Yorktowne Paper Mills v. Workmen's Compensation Appeal Board, 60 Pa. Commonwealth Ct. 608, 432 A.2d 308 (1981).

The sole issue before us*fn2 is whether the referee's finding that there were jobs available for the claimant

[ 80 Pa. Commw. Page 78]

    to perform while partially-disabled was supported by substantial evidence.

The referee determined that McCrory had satisfied its burden of proving job availability, finding that there was suitable part-time work available for Hopkins. The referee, however, erroneously found that there was an available thirty hour-per-week job as a self-service gasoline attendant at the rate of $3.35 per hour. The Board reversed, deciding that the burden had not been met based on the thirty hour-per-week figure.

The record establishes that there was appropriate employment on a twenty-hour basis in the locality. A vocational-rehabilitation specialist*fn3 testified that there were numerous part-time jobs in self-service gasoline stations that Hopkins could perform. He further testified that Hopkins had sufficient capacity to perform certain twenty hour-per-week ...


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