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HENRY WOYTACH v. WORKMEN'S COMPENSATION APPEAL BOARD (CITY SCRANTON) (10/18/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 18, 1985.

HENRY WOYTACH, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CITY OF SCRANTON), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Henry Woytach v. City of Scranton, No. A-84580.

COUNSEL

George W. Teets, for petitioner.

William J. Hall, for respondent, City of Scranton.

Judges Rogers and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 92 Pa. Commw. Page 301]

Henry Woytach (petitioner) appeals here from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision modifying his compensation benefits.

The referee found that, on April 16, 1980, the City of Scranton (employer) filed with the Board a Notice of Compensation Payable to the petitioner for a disability

[ 92 Pa. Commw. Page 302]

    he incurred as a result of a compensable injury sustained on February 9, 1979; that he thereafter underwent various medical procedures; and that, while as of December 30, 1980, the petitioner could not sit, walk, or stand for long periods without resting by changing position, his condition had improved to the point that he could perform sedentary or light duty work, providing that he could change positions at times, rest briefly, and would lift no more than twenty pounds. It was further found that his condition had remained the same. The referee also found that, on January 14, 1982, four specific jobs were available to him,*fn1 and reduced benefits on the basis that he was only partially disabled. The petitioner thereafter appealed to the Board.*fn2

An employer seeking to terminate or modify a workmen's compensation award or agreement has the burden of proving that a claimant's disability has ended or been reduced and that there is work available

[ 92 Pa. Commw. Page 303]

    to him within his ability. Schiavo v. Workmen's Compensation Appeal Board (Frank's Beverages), 68 Pa. Commonwealth Ct. 479, 449 A.2d 816 (1982). Work for a partially disabled claimant must actually be available to him, and it must be brought to his notice by the employer. Kachinski v. Workmen's Compensation Appeal Board, 91 Pa. Commonwealth Ct. 543, 498 A.2d 36 (1985). And where an employer offers specific jobs in an attempt to meet its burden of establishing the availability of work, a claimant may rebut such evidence by showing that such positions were not, in fact, available to him. St. Joseph Hospital v. Workmen's Compensation Appeal Board, 52 Pa. Commonwealth Ct. 265, 415 A.2d 957 (1980); Weatherguard, Inc. v. Workmen's Compensation Appeal Board, 41 Pa. Commonwealth Ct. 275, 398 A.2d 1103 (1979).

Where, as in the instant case, the party with the burden of proof prevailed before the Board, our scope of review is limited to determining whether or not there has been a violation of constitutional rights or an error of law committed, and whether or not there is substantial evidence to support the findings of fact. Schiavo.

In this appeal the petitioner essentially contends that there is not substantial evidence to support the referee's fifth finding of fact that the four specified jobs were available to him on January 14, 1982, and he argues that there is no evidence in the record that he had any notice of those positions on that day. He asserts that the testimony of the employer's witness, a rehabilitation coordinator, shows that the petitioner had no knowledge of these positions prior to February 22, 1982, and, moreover, that the positions were unavailable to him because they were all filled on that date.

[ 92 Pa. Commw. Page 304]

Our careful review of the record reveals that the rehabilitation coordinator testified that she first interviewed the petitioner on January 13, 1982, and that she subsequently notified him by letter dated February 22, 1982 that the positions were available, writing that he should call her if he was interested in any of them. She further testified, however, that the four specific positions were filled as of that letter's date. We find no evidence that the petitioner had, as of January 14, 1982, any notice that the positions were available, or that they were available at the time when he finally received notice thereof.*fn3 We do not believe, therefore, that the positions could be said to have been available to the petitioner unless he had notice of them while they were open, and we must conclude that there is no substantial evidence to support the finding challenged here by the petitioner.

We will, therefore, reverse the order of the Workmen's Compensation Appeal Board.

Order

And Now, this 18th day of October, 1985, the order of the Workmen's Compensation Appeal Board dated April 26, 1984 at Docket No. A-84580, is reversed and the Notice of Compensation Payable is reinstated. Deferred payments of compensation shall bear interest at the statutory rate.

Disposition

Reversed. Notice of compensation payable reinstated. Payments to bear interest at statutory rate.


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