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MARGARET M. FARKALY v. WORKMEN'S COMPENSATION APPEAL BOARD (BALTIMORE LIFE INSURANCE COMPANY) (09/11/85)

decided: September 11, 1985.

MARGARET M. FARKALY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BALTIMORE LIFE INSURANCE COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Margaret M. Farkaly v. Baltimore Life Insurance Co., No. A-86010.

COUNSEL

Richard S. Campagna, for petitioner.

Lucille Marsh, Henkelman, Kreder, O'Connell & Brooks, for respondents.

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.

Author: Rogers

[ 91 Pa. Commw. Page 572]

Margaret M. Farkaly (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 prayer of the petition of her former employer for modification of her benefits.

The claimant, who worked as a debit agent, suffered a compensable injury in an automobile accident on August 23, 1978. The claimant received compensation, which was terminated by the execution of a final receipt on November 2, 1978. On March 18, 1980, the claimant filed a petition for reinstatement of compensation, which was granted by the referee and is not now contested by the employer. The employer filed a petition for modification of compensation on May 18, 1981, contending that the claimant's disability had ceased or changed from total to partial and that work was available which the claimant was capable of performing.

After hearings, the referee found that the claimant was partially disabled and that there were two positions available in the labor market which she was capable of performing. 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 the petitioner and within her limitations was inadequate as a matter of law since it did not specifically relate job requirements to the petitioner's physical condition, experience and training."

An employer, or its insurance carrier, seeking to modify a workmen's compensation agreement

[ 91 Pa. Commw. Page 573]

    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 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 limitations can do.

[ 91 Pa. Commw. Page 574]

Kachinski v. Workmen's Compensation Appeal Board, 91 Pa. Commonwealth Ct. 543, 545-6, 498 A.2d 36, 37 (1985) (emphasis in original). See 4156 Bar Corp. v. Workmen's Compensation Appeal Board, 63 Pa. Commonwealth Ct. 176, 438 A.2d 657 (1981); State Products Page 574} Corp. v. Workmen's ...


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