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ROBERT HOLMES v. WORKMEN'S COMPENSATION APPEAL BOARD (PISANI BROTHERS (12/28/84)

decided: December 28, 1984.

ROBERT HOLMES, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (PISANI BROTHERS, INC.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Robert Holmes v. Pisani Brothers, Inc., No. A-83421.

COUNSEL

Edward Jaffee Abes, Abes & Begler, P.C., for petitioner.

Kim Darragh, for respondent, Pisani Brothers, Inc.

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

Author: Williams

[ 86 Pa. Commw. Page 544]

Robert Holmes (Holmes) petitions for review of an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision finding him to be only partially disabled. We affirm.

Holmes was last employed as a truck mechanic by Pisani Brothers, Inc. (employer). On August 22, 1978, he sustained a work-related injury to his right knee as a result of which he was found totally disabled and awarded workmen's compensation benefits of $149.89 per week. Thereafter, the employer attempted to involve Holmes in a vocational rehabilitation program but Holmes declined to participate. The employer, however, persisted in its efforts to

[ 86 Pa. Commw. Page 545]

    locate suitable employment for Holmes despite his lack of cooperation. The employer contracted with General Rehabilitation Services (GRS) to find suitable job openings near Holmes' residence. GRS was provided with medical reports on Holmes which were prepared by two of his treating physicians, Dr. Foss and Dr. Johnstone. GRS located two jobs which it felt Holmes was capable of holding: attendant in a self-service gasoline station and small-engine repairman. GRS submitted both of these jobs to Dr. Johnstone for approval or rejection. Dr. Johnstone unconditionally approved the gas station attendant's job. Although Dr. Johnstone expressed some concern over the small-engine repairman's position, he said it was "worth a try." GRS notified Holmes of both job openings by certified mail on June 17, 1981. Holmes did not apply for either job until mid-September, at which time neither job was available. On August 26, 1981, the employer filed a Petition to Modify Holmes' benefits, asserting that Holmes was no longer totally disabled. Two referee's hearings were held at which the employer presented testimony from Gregory Jakub, a representative from GRS, also presented the deposition testimony of Dr. Johnstone. On March 10, 1982, the referee granted the employer's petition and found Holmes to be only partially disabled. The referee found Holmes capable of performing the gas station attendant's job and that the job had been available to Holmes. Holmes' benefits were reduced to $60.57 per week effective June 18, 1981. Holmes appealed to the Board, which affirmed the referee. A timely petition for review to this Court was then filed by Holmes.

Before this Court, Holmes contends that the referee's finding that there was suitable work available to him is not supported by substantial evidence, and that the referee erred as a matter of law by not awarding

[ 86 Pa. Commw. Page 546]

    him costs under Section 440 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 996.

We initially note that where an employer moves to modify benefits, the employer has the burden of showing that work is available which the claimant is physically capable of performing. Cugini v. Workmen's Compensation Appeal Board (Arlen Realty), 74 Pa. Commonwealth Ct. 470, 460 A.2d 395 (1983). Where the party with the burden of proof has prevailed before the referee, our scope of review is limited to a determination of whether necessary findings are supported by substantial evidence, whether an error of law was committed or whether any constitutional rights of ...


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