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ROBERT SCHAFER v. WORKMEN'S COMPENSATION APPEAL BOARD (LEHIGH VALLEY MANPOWER PROGRAM) (12/12/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 12, 1985.

ROBERT SCHAFER, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (LEHIGH VALLEY MANPOWER PROGRAM), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Robert Schafer v. Lehigh Valley Manpower Company, No. A-86686.

COUNSEL

Quintes D. Taglioli, Markowitz & Richman, for petitioner.

William M. Thomas, Thomas and Thomas, for respondents.

Judges Colins and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 93 Pa. Commw. Page 458]

Robert Schafer appeals the order of the Workmen's Compensation Appeal Board affirming a referee's

[ 93 Pa. Commw. Page 459]

    decision which dismissed his petition for reinstatement of total disability benefits on the ground that his employer established the availability of numerous jobs. We reverse.

Schafer sustained a back injury for which he received total disability compensation. His employer supplied a light duty job under the CETA program. Upon expiration of that program he was laid off. He remained unable to return to his former pre-injury job. His employer provided evidence of the availability of work. However, he applied for and was not hired for these jobs for a variety of reasons. Schafer contends that his employer did not meet his burden of proving the availability of work which he was capable of performing.

Where a partially disabled claimant has been laid off from a modified job provided by the employer and seeks reinstatement of benefits, his burden of proof is met by showing that he is unable to perform his time-of-injury job. Smith v. Workmen's Compensation Appeal Board (Futura Ind.), 80 Pa. Commonwealth Ct. 508, 471 A.2d 1304 (1984). The employer then has the burden of showing that work is available which the claimant is able to perform. Id. A claim of work availability can be rebutted by evidence that a claimant applied for the work and was rejected.*fn1 Piper Aircraft Corp. v. Workmen's Compensation Appeal Board (Bibey), 86 Pa. Commonwealth Ct. 614, 485 A.2d 906 (1985).

Here, the employer established the availability of work for Schafer. However, the record shows that he applied for the jobs and was not hired. The employer

[ 93 Pa. Commw. Page 460]

    did not meet its burden. Thus, we find that the Board erred in affirming the referee's finding that the employer met his burden of proving work availability.

Accordingly, we reverse the board and hold that benefits should be reinstated.

Order

The order of the Workmen's Compensation Appeal Board, Docket No. A-86686, dated June 21, 1984, is reversed.

Disposition

Reversed.


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