Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Joseph Kachinski v. Vepco Construction Co., No. A-87167.
Richard S. Campagna, for petitioner.
Cal A. Leventhal, for respondent, Vepco Construction Co.
Judges Rogers and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Rogers. Judge Barry did not participate in the decision in this case. Dissenting Opinion by Judge Doyle.
[ 91 Pa. Commw. Page 544]
Joseph Kachinski (claimant) has filed a petition for review of an order of the Workmen's Compensation Appeal Board (board) affirming a referee's order granting the petition of his former employer, Vepco Construction Co., for modification of his compensation benefits.
The claimant, a welder, suffered a compensable injury or injuries in an accident which occurred on January 20, 1981, on account of which he received payments for total disability under a notice of compensation payable. On April 9, 1981, the claimant filed a petition for review of the notice of compensation payable,
[ 91 Pa. Commw. Page 545]
alleging that he receives compensation for work-related burns to his face but that he had also suffered a back injury in the same accident for which the employer refused to compensate him. By answer, the employer denied that the claimant had sustained a back injury and, on September 24, 1981, filed a petition for modification of compensation, contending that from June 30, 1981, the claimant had sufficiently recovered from his work-related injury to be capable of returning to gainful employment and that "said employment" was presently available in the marketplace.
After hearings, the referee found that the claimant was partially, rather than totally, disabled and that there were six positions which were available in the labor market and within the claimant's physical and intellectual capabilities. The claimant appealed, and the board affirmed the referee's order. This appeal followed, with the claimant contending that the board's order "is erroneous and should be set aside because the testimony concerning work available to Petitioner and within his limitations was inadequate as a matter of law since it did not specifically relate job requirements to Petitioner's physical condition, experience and training."
An employer, or its insurance carrier, seeking to modify a workmen's compensation agreement and asserting that a claimant's disability is no longer total has the burden to prove that the claimant's condition of disability has abated and that work is available which the claimant is capable of doing. Barrett v. Otis Elevator Co., 431 Pa. 446, 246 A.2d 668 (1968); Petrone v. Moffat Coal Co., 427 Pa. 5, 233 A.2d 891 (1967); St. Vincent Health Center v. Workmen's Compensation Appeal Board, 59 Pa. Commonwealth Ct. 130, 428 A.2d 1061 (1981). The work proposed for a
[ 91 Pa. Commw. Page 546]
partially disabled claimant must be actually available, that is, in fact within his reach, and it must be brought to his notice by the employer. A position may be found to be actually available, or within the claimant's reach, only if it can be performed by the claimant, having regard to his physical restrictions and limitations, his age, his intellectual capacity, his education, his previous work experience, and other relevant considerations, such as his place of residence. The employer does not have to produce a job offer, Don-Mark Realty Co. v. Milovec, 11 Pa. Commonwealth Ct. 448, 314 A.2d 349 (1974), but positions which are pie-in-the-sky, often described by vocational experts as sedentary or light or requiring little lifting, do not without additional description of their physical demands, establish actual availability of work which a claimant with particular physical ...