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TITUSVILLE HOSPITAL v. WORKMEN'S COMPENSATION APPEAL BOARD (WARD) (01/17/89)

decided: January 17, 1989.

TITUSVILLE HOSPITAL, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (WARD), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Judy Ward v. Titusville Hospital, No. A-91667.

COUNSEL

Stanley G. Berlin, for petitioner.

John W. McTiernan, with him, John D. Strader, Caroselli, Spagnolli & Beachler, for respondent.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith. Judge MacPhail did not participate in the decision in this case.

Author: Smith

[ 122 Pa. Commw. Page 619]

Titusville Hospital (Employer) appeals from the order of the Workmen's Compensation Appeal Board (Board) reinstating total disability compensation to Judy Ward (Claimant) as of November 12, 1983 until Claimant's disability changes within the meaning of The

[ 122 Pa. Commw. Page 620]

Pennsylvania Workmen's Compensation Act*fn1 (Act), and reversing the referee's decision to the extent that it ordered Claimant entitled only to partial disability benefits commencing January 28, 1985. The sole issue presented for review is whether Employer sufficiently established the availability of work within Claimant's limitations. The Board's decision is affirmed.

Claimant, a licensed practical nurse, sustained a work-related back injury on January 20, 1983 for which she received compensation benefits until suspension thereof. Claimant subsequently returned to her pre-injury position on September 27, 1983. While assisting a patient on November 11, 1983, Claimant aggravated her pre-existing back condition and subsequently filed her claim for reinstatement of benefits.

After several hearings, the referee found that Claimant suffered acute lumbosacral strain causally related to the November 11, 1983 work-related incident and was totally disabled until released by her treating physician for light-duty work on January 7, 1985. The referee further found that there was work available to Claimant within her limitations as of January 28, 1985, thereby entitling Employer to a modification of compensation as of that date. Claimant thereafter appealed to the Board which found that the referee erred in concluding that Employer had sufficiently demonstrated availability of work in light of Claimant's testimony that she had applied for the job in question, but was not hired. Employer then petitioned this Court for review.*fn2

[ 122 Pa. Commw. Page 621]

Since Claimant satisfied her burden of proving that the work-related injury precludes her from performing as a licensed practical nurse, the burden shifted to Employer to establish that other work was available to Claimant. See Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987). Factors to be considered in determining whether work is available to Claimant or within Claimant's reach include Claimant's physical limitations, age, intellectual capacity, education, prior work experience, and other relevant considerations, such as Claimant's place of residence. Moreover, the referee's decision as to whether Claimant can perform the job in question is reviewable as a finding of fact. Id.

Employer initially contends that the Board erred in reversing the referee's finding as to work availability since it was premised upon a credibility determination and supported by substantial competent evidence. Claimant, on the other hand, argues that the record demonstrates that Claimant applied for many of the job referrals provided by Employer but was not hired by any of the prospective employers, and therefore, Employer failed to satisfy its burden of proving ...


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