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ROADWAY EXPRESS v. WORKMEN'S COMPENSATION APPEAL BOARD (LEWIS) (02/03/88)

decided: February 3, 1988.

ROADWAY EXPRESS, INC., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (LEWIS), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of John Lewis v. Roadway Express, Inc., No. A-89417.

COUNSEL

Richard L. Bush, for petitioner.

John E. V. Pieski, for respondent.

President Judge Crumlish, Jr., Judge Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 113 Pa. Commw. Page 231]

This is a petition for review filed by Roadway Express, Inc. (Employer) from an order of the Workmen's Compensation Appeal Board (Board) denying Employer's petition for modification of benefits from total disability to partial disability. We affirm the order of the Board.

John J. Lewis (Claimant) suffered a work related back injury on December 16, 1977, when he was struck by a crane while unloading freight. He attempted to return to work on May 5, 1978, and again injured himself while loading sixty pound rugs onto a truck. Pursuant to a notice of compensation payable, he has been receiving compensation for total disability in the amount of $213.00 per week since June 1, 1978. Compensation was suspended by supplemental agreement from October 1980 to April 1981 while Claimant was employed as a mail clerk in a CETA program. Claimant remains continuously under a physician's care and at times wears a back brace. Claimant was finally cleared to return to work with restrictions on October 18, 1982. On May 18, 1983, following examination by its own physician, Employer filed its petition for modification asserting that its vocational counselor had produced

[ 113 Pa. Commw. Page 232]

    referrals for available work within Claimant's medical capabilities. In analyzing this case we are guided by the standards recently set forth by our Supreme Court in Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987), Farkaly v. Workmen's Compensation Appeal Board (Baltimore Life Insurance Company), 516 Pa. 256, 532 A.2d 382 (1987).

An employer who seeks to modify a claimant's benefits on the basis that he has recovered some or all of his ability has the burden of producing a referral to an open job which fits in the occupational category for which the claimant has been given medical clearance, e.g., light work, sedentary work, etc. Kachinski at 252, 532 A.2d at 380. Employer's physician testified that based on his examination of Claimant, he believed Claimant could perform light to medium work involving lifting up to fifty pounds. Employer's vocational counselor testified that from the period April 15, 1982, to September 6, 1983, she had submitted nine referrals to Claimant or his counsel, none of which Claimant had followed up on. Employer's physician stated that all of these referrals were within Claimant's capabilities.

Claimant's treating physician directly contradicted this testimony. He stated that Claimant was still suffering from chronic somatic dysfunction of the lumbosacral spine along with a herniated disk and his condition had not improved at all since the last injury. Claimant's condition continued to be aggravated by a right leg Claimant had broken as a child which had healed two inches shorter than his left leg. Claimant's treating physician was of the opinion that Claimant was fit only for sedentary work with no lifting above five pounds.

Following Employer's vocational counselor's testimony on September 6, 1983, Claimant immediately made application at every ...


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