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JOHN DOBASEWSKI v. WORKMEN'S COMPENSATION APPEAL BOARD (HENDRICK MFG. CO.) (09/12/85)

decided: September 12, 1985.

JOHN DOBASEWSKI, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (HENDRICK MFG. CO.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John Dobasewski v. Hendrick Manufacturing Co., No. A-86631.

COUNSEL

Richard S. Campagna, for petitioner.

Kathleen A. Lenahan, Lenahan and Dempsey, P.C., for respondent, Hendrick Mfg. 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.

Author: Rogers

[ 91 Pa. Commw. Page 612]

John Dobasewski 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, Hendrick Manufacturing Co., for modification of his compensation benefits.

The claimant, a surface grinder, suffered a compensable injury in an accident which occurred on September 15, 1975, on account of which he received payments for total disability. The claimant executed a final receipt stating that he was able to return to work on January 10, 1977 without loss of earning power. On June 8, 1978, the claimant and his employer executed a supplemental agreement which provided that the claimant's disability had recurred on September 30, 1977 and that the claimant shall receive compensation for total disability. The employer filed a petition for modification of compensation on January 23, 1981, contending that from November 18, 1980, the claimant was able to do light work based on a physician's findings.

After hearings, the referee found that the claimant was partially, rather than totally, disabled and that there was a position 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.

The claimant contends that the board's order "is erroneous and should be set aside because the testimony concerning work available to the petitioner and within his limitations was inadequate as a matter of law and the referee improperly and erroneously limited the testimony of . . . the claimant's vocational expert. . . ."

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

[ 91 Pa. Commw. Page 613]

    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.

Kachinski v. Workmen's Compensation Appeal Board, 91 Pa. Commonwealth Ct. 543, 545-6, 498 A.2d 36, 37 (No. 2160 C.D. 1984, filed September 10, 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 Corp. v. ...


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