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

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 ...


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