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NORBERT J. BAUMGART v. WORKMEN'S COMPENSATION APPEAL BOARD (PULLMAN STANDARD) (12/17/87)

decided: December 17, 1987.

NORBERT J. BAUMGART, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (PULLMAN STANDARD), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Norbert J. Baumgart v. Pullman Standard, No. A-87778.

COUNSEL

Marilyn J. Horan, Murrin, Taylor, Flach & Horan, for petitioner.

Roy F. Walters, with him, Michael E. Relich, Fried, Kane, Walters & Zuschlag, for respondents.

Judges MacPhail and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 112 Pa. Commw. Page 72]

Norbert J. Baumgart (Petitioner) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision granting Pullman Standard's (Employer) petition for modification. For the reasons set forth below, we reverse.

On August 17, 1978, Petitioner sustained a work-related injury to his back. Pursuant to a notice of compensation

[ 112 Pa. Commw. Page 73]

    payable, Employer paid benefits to Petitioner at a rate of $213 per week. On July 29, 1982, Employer filed a petition for modification alleging that Petitioner's injuries had resolved into only a partial disability and that suitable work had been made available to Petitioner.

Following a hearing, a referee found that as of March 31, 1982, Petitioner's disability had resolved itself into a partial disability whereby he was able to perform sedentary and other light work. The referee further found that a position of in-plant truck driver was made available to Petitioner as of March 31, 1982. In his conclusions, the referee stated: "The [Petitioner] is able to perform work with restrictions imposed upon his return to work by his physician and the record reflects that a job has been made available to him from which he would be able to establish an earning capacity of $360.00 a week."

The referee concluded by granting Employer's petition for modification and reducing Petitioner's weekly benefits to a rate of $106.66 per week.

Petitioner makes two arguments. First, he argues that the record does not contain substantial evidence to support the referee's finding that a suitable position was made available to him. Second, Petitioner contends that because the determination as to the suitability of the allegedly offered position was made after the alleged offer was withdrawn, the Board erred in affirming the referee's grant of Employer's modification petition.

Our scope of review is limited to whether the Board has committed an error of law, violated a constitutional right, or whether necessary findings of fact are not supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. ยง 704. In the very recent case of Kachinski ...


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