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FRANK L. VINGLAS v. WORKMEN'S COMPENSATION APPEAL BOARD (BETHLEHEM MINES CORPORATION) (09/16/87)

decided: September 16, 1987.

FRANK L. VINGLAS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BETHLEHEM MINES CORPORATION), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Frank L. Vinglas v. Bethlehem Mines Corporation, No. A-89899.

COUNSEL

Timothy P. Creany, for petitioner.

Robert G. Rose, Spence, Custer, Saylor, Wolfe & Rose, for respondent.

Judges Craig and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 109 Pa. Commw. Page 368]

Frank L. Vinglas (claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision granting the modification petition of Bethlehem Mines Corporation (employer) which found the claimant partially disabled and reduced his compensation from $94.00 to $54.57 effective September 7, 1984. We reverse.

[ 109 Pa. Commw. Page 369]

On November 3, 1972, the claimant sustained a work-related back injury for which compensation was paid under an agreement for compensation. On July 6, 1984, the employer filed a petition for modification of compensation alleging that the claimant's disability had changed from total to partial disability. After holding three hearings, the referee found that the claimant's disability had decreased from total to partial disability and that the employer was entitled to the relief sought. The referee also found that beginning September 7, 1984, work became available to the claimant which was within the vicinity of his residence and which was within the limitations imposed upon him by his 1972 compensable injury.

The claimant appealed to the Board arguing that the referee's findings as to both the diminution of disability and availability of work were not supported by substantial evidence. The Board affirmed the referee's decision and a petition for review to this Court followed.

In this appeal, the claimant argues that the referee's findings as to the availability of work as of September 7, 1984, are not supported by substantial evidence.*fn1 We agree.*fn2

[ 109 Pa. Commw. Page 370]

It is well-settled that an employer seeking to modify a workmen's compensation agreement and alleging that a claimant's disability is no longer total has the burden to prove that such disability has been reduced and that work is available which is within the claimant's capability. Barrett v. Otis Elevator Co., 431 Pa. 446, 246 A.2d 668 (1968). In order to satisfy the burden of work availability, the employer has two options. First, it may show general availability of suitable jobs in the relevant labor market. Dreher v. Workmen's Compensation Appeal Board, 38 Pa. Commonwealth Ct. 473, 393 A.2d 1081 (1978). Second, it may show that specific jobs have been offered to the claimant which are within his capabilities. However, in such cases, the claimant can rebut the evidence by showing that the specific jobs are not in fact available because he cannot perform the work due to his disability, or he is not qualified in other respects for the employment, or he has applied for the positions and has been rejected. Halloran v. Workmen's Compensation Appeal Board, 49 Pa. Commonwealth Ct. 144, 410 A.2d 420 (1980), St. Joseph Hospital v. Workmen's Compensation Appeal Board, 52 Pa. Commonwealth Ct. 265, 415 A.2d 957 (1980). We have also noted that a claimant may rebut such evidence by showing that the specific jobs were filled at the time of application. See Weathergard, Inc. v. Workmen's Compensation Appeal Board, 41 Pa. Commonwealth Ct. 275, 398 A.2d 1103 (1979), Yorktowne Paper Mills v. Workmen's Compensation Appeal Board, 60 Pa. Commonwealth Ct. 608, 432 A.2d 308 (1981).

The evidence of work availability in this case was presented at a hearing on October 18, 1984, through the testimony of a ...


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