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HELEN THOMAS v. WORKMEN'S COMPENSATION APPEAL BOARD (WINZEK CATERING SERVICE) (03/05/87)

decided: March 5, 1987.

HELEN THOMAS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (WINZEK CATERING SERVICE), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Helen Thomas v. Winzek Catering Service, No. A-86897.

COUNSEL

Thomas P. Geer, for petitioner.

Michael E. Relich, Fried, Kane, Walters & Zuschlag, for respondent, Winzek Catering Service.

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

Author: Kalish

[ 104 Pa. Commw. Page 362]

Helen Thomas petitions for review of a decision of the Workmen's Compensation Appeal Board (Board) affirming with a modification a referee's decision which granted the modification petition of Winzek Catering Service.

Thomas sustained a work-related injury on October 16, 1980, while working as a cook for Winzek Catering Service. She received total disability compensation pursuant to a notice of compensation agreement. On November

[ 104 Pa. Commw. Page 36323]

, 1982, Winzek filed a modification petition, pursuant to section 413 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 772, alleging that Thomas' disability was no longer total, and that jobs were available which she was capable of performing.

The referee credited the testimony of an orthopedic surgeon, Dr. Holland, and a family specialist, Dr. Lee. Both physicians testified that Thomas is capable of performing light work, with various restrictions. The referee also credited the testimony of Christina Strom, a vocational rehabilitation expert. Strom testified that the job of homebound telephone solicitor was made available to Thomas, but Thomas declined the interview. Thus, the referee granted Winzek's modification petition, and reduced compensation from total to partial disability as of November 23, 1982, the date Winzek filed its petition.

The Board affirmed the referee's decision to modify compensation from total disability to partial disability. However, the Board changed the date of the modification from November 23, 1982 to March 24, 1982, having determined that the referee capriciously disregarded evidence in the record showing that the job was made available to Thomas on the latter date.

Thomas contends that there was not substantial evidence to support the referee's finding that work was available since the job of homebound telephone solicitor was compensated on a commission basis, and therefore had no wage or salary. She further argues that the Board erred in modifying the referee's decision as to the date on which her disability had decreased.

Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are ...


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