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JOHN M. YOUNG v. WORKMEN'S COMPENSATION APPEAL BOARD (WEIS MARKETS (02/19/88)

decided: February 19, 1988.

JOHN M. YOUNG, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (WEIS MARKETS, INC.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of John M. Young v. Weis Markets, Inc., No. A-90259.

COUNSEL

Michael P. Shay, Shay & Santee, for petitioner.

Wilbur C. Creveling, Jr., Creveling & Creveling, for respondents.

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

Author: Barbieri

[ 113 Pa. Commw. Page 534]

This is a petition for review filed by John M. Young (Claimant) from an order of the Workmen's Compensation Appeal Board (Board) which granted Weis Markets,

[ 113 Pa. Commw. Page 535]

Inc.'s (Employer) petition for modification of benefits from total disability to partial disability. We reverse the order of the Board and reinstate the award of total disability.

Claimant suffered a work related back injury on February 7, 1975, when he slipped on a piece of fat while carrying a tray of meat. The fall tore loose adhesions in his lower back which had formed as the result of two prior back operations relating to work injuries and necessitated Claimant's treating physician having to lyse the adhesions as well as remove a third disc. Pursuant to a notice of compensation payable, Claimant has been receiving compensation for total disability in the amount of $171.00 per week since July 1, 1975. In April of 1975, five days after Claimant was released from the hospital, he slipped and fell in a drugstore again tearing loose the adhesions from the prior three operations. A settlement was reached against the drugstore in the amount of $85,000.00 against which Employer received subrogation and credits. Claimant's pain persisted and he developed tarsal tunnel syndrome and numbness in his left foot. From 1976 to 1977, he underwent five surgical procedures performed on his back including multiple rhizotomies and one on his left foot and ankle. These operations produced only temporary results and Claimant's treating physicians prescribed narcotics to ease the pain. Claimant initially was prescribed Codeine which quickly escalated to Percodan. Claimant took twenty-four tablets of Percodan per day for two years and became addicted to Percodan. In December 1979, Claimant's treating physician began prescribing Methadone. Claimant takes three to ten five milligram tablets of Methadone per day and is now a Methadone addict. Claimant is also under psychiatric care and receiving Librium.

[ 113 Pa. Commw. Page 536]

Claimant was examined by Employer's physician on May 28, 1980, and July 19, 1982. Following the first examination, on May 30, 1980, Employer filed a petition for termination asserting all disability had ceased, which the referee elected to treat as a petition for modification to partial disability. Employer's physician testified that with an orothotic brace or support for his left foot Claimant was fully cleared to return to work even with his addiction and could perform jobs involving lifting up to fifty pounds. Employer also presented the testimony of a vocational counselor who described five job openings existing during the week of January 5, 1981, and a further eleven jobs allegedly available between March 11, 1981, and April 10, 1981. Employer's physician certified that Claimant could perform fifteen of these positions.

Under the guidelines 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) and 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 must first produce medical evidence of a change in condition permitting re-employment followed by evidence of a referral to a then open job which fits in the occupational category for which the claimant has been given medical clearance. The claimant may then by medical evidence rebut employer's evidence of such a change in condition, indicate the unacceptability of the offered ...


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