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MARGARET M. FARKALY v. WORKMEN'S COMPENSATION APPEAL BOARD (BALTIMORE LIFE INSURANCE COMPANY). APPEAL BALTIMORE LIFE INSURANCE COMPANY (10/15/87)

decided: October 15, 1987.

MARGARET M. FARKALY, APPELLEE
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BALTIMORE LIFE INSURANCE COMPANY). APPEAL OF BALTIMORE LIFE INSURANCE COMPANY



Appeal form the Order of the Commonwealth Court at No. 2161 C.D. 1984, entered September 11, 1985, reversing the order of the Workmen's Compensation Appeal Board at No. A-86010 entered June 28, 1984, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a dissenting opinion.

Author: Mcdermott

[ 516 Pa. Page 257]

OPINION

Claimant, Margaret M. Farkaly, while operating in the course of her employment with employer, Baltimore Life Insurance Company, was involved in a car accident in which her back and neck were injured. At the time Ms. Farkaly was a debit agent with Baltimore Life, a job which involved

[ 516 Pa. Page 258]

    visiting clients for purposes of collecting insurance premiums. Since her job involved extensive driving and some lifting she was ultimately unable to continue in that employment.

The original injury to claimant occurred in August, 1978. She received compensation for this injury up until October, 1978, at which time she returned to work. In March, 1980, she filed a petition for reinstatement of benefits, alleging a recurrence of the symptoms from her original injury. In June, 1980, an interim order was signed awarding benefits. In May, 1981, employer filed a petition for modification, alleging that claimant's disability had ceased or changed from total to partial, and that work was available which claimant was capable of performing.

After a number of hearings the referee concluded, inter alia, that payment of compensation should be reinstated, and that the amount of payments should be modified from total disability to partial disability because of the availability of suitable work: a decision which was affirmed by the Board.

On appeal the Commonwealth Court reversed, 91 Pa. Commw. 571, 498 A.2d 34. Upon petition we granted allowance of appeal. We now reverse the Commonwealth Court and reinstate the order of the Workmen's Compensation Appeal Board.

The issue in this case is the same as that presented in Kachinski v. Workmen's Compensation Appeal Board, 516 Pa. 240, 532 A.2d 374 (1987): whether the employer has shown the availability of suitable employment such that claimant's benefits can be reduced from total to partial.

In Kachinski we held that a disabled claimant is entitled to a job referral to a position which the evidence proves was within his capabilities; and that the refusal of the claimant to pursue valid job referrals can be a basis for reducing benefits.

In this case there was testimony, which the referee accepted, that claimant was physically able to perform

[ 516 Pa. Page 259]

    part-time sedentary work, and that two positions were available that fit this description. Though at the time of the referee's decision he was not required to make a finding that Ms. Farkaly was referred to these jobs, the testimony in the record is undisputed that the information about these jobs was effectively conveyed to the claimant. In this regard employer's vocational expert, after describing the jobs, testified that "[a]ll these jobs were made known to [her] attorney." Deposition, Lawrence Thayer, March 18, 1982. Unlike Kachinski, where only general overtures were made to claimant's counsel, here the employer ...


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