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MARYANN SMITH v. WORKMEN'S COMPENSATION APPEAL BOARD (FUTURA INDUSTRIES) (02/29/84)

decided: February 29, 1984.

MARYANN SMITH, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (FUTURA INDUSTRIES), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Maryann Smith v. Futura Industries, No. A-80312.

COUNSEL

Dale G. Larrimore, for petitioner.

Susan McLaughlin, Harvey, Pennington, Herting & Renneisen, LTD, for respondent, Futura Industries.

Judges Rogers, MacPhail and Barry, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 80 Pa. Commw. Page 508]

Maryann Smith (Claimant) appeals from a decision of the Workmen's Compensation Appeal Board

[ 80 Pa. Commw. Page 509]

(Board) dated April 1, 1982, which reversed the decision of the referee and dismissed her Petition for Reinstatement.

The Board reversed the decision of the referee on the basis of an error of law; however, the fact findings of the referee were not disturbed. The referee found as fact that Claimant suffered a compensable injury on July 25, 1975, and received compensation from July 26, 1975, through October 24, 1976. At that time Claimant returned to work with Futura Industries (Employer), her employer at the time of her injury. She returned to modified work at the same or greater wages, and compensation was suspended. Claimant's medical condition remained substantially unchanged from October 26, 1976, and she remains physically incapable of performing the job that she held at the time of her injury. On February 13, 1979, Claimant was laid off from her job as a result of a downturn in the Employer's business, and subsequently sought reinstatement of benefits. The referee found that the Employer failed to carry its burden of proving that there are jobs available to Claimant which she is able to perform within the physical limitations of her continuing disability.

The referee further concluded as a matter of law that since Claimant had proved that she remained disabled from performing her former job because of her work-related injury, and Employer had failed to prove that other jobs were available to Claimant within her abilities. Claimant was entitled to compensation for total disability.

The Board considered this matter and, in an opinion dated June 11, 1981, ordered reargument on the issue of whether an Employer is forever an insurer of

[ 80 Pa. Commw. Page 510]

    job availability to a partially disabled claimant or whether, once the employer has met the burden of showing job availability, the claimant must prove a change in physical condition to ...


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