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ASSOCIATED PLUMBING & HEATING AND CNA INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (HARTZOG (06/16/89)

decided: June 16, 1989.

ASSOCIATED PLUMBING & HEATING AND CNA INSURANCE COMPANY, PETITIONERS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (HARTZOG, JR.), RESPONDENTS



APPEAL PETITION FOR REVIEW (WORKMEN'S COMPENSATION)

COUNSEL

J. Lawson Johnston, Dickie, McCamey & Chilcote, P.C., William M. Conwell, Pittsburgh, for petitioners.

Stephen P. McCloskey, Kathleen Smith-Delach, Phillips & Faldowski, Washington, for respondents.

Crumlish, Jr., President Judge, Colins, J., and Narick, Senior Judge.

Author: Narick

[ 126 Pa. Commw. Page 620]

In this workmen's compensation case, Associated Plumbing & Heating and its insurance carrier, CNA Insurance Company (referred to collectively as Employer) filed a modification petition on June 25, 1984, alleging that, as of February 1983,*fn1 Thomas E. Hartzog, Jr. (Claimant) was able to do light work which was available to him.

The facts are as follows. Claimant, a plumber, suffered a work-related injury to his lower back on September 9, 1981. As a result of this injury, he received workmen's compensation benefits pursuant to a notice of compensation payable. At Employer's request, Claimant was examined by Dr. Ronald Zimmerman on August 31, 1983, October 13, 1983 and November 21, 1983. Dr. Zimmerman found that, while Claimant was unable to return to his former occupation, he had recovered sufficiently as of the above dates to be able to perform "medium work."*fn2 Based upon Dr. Zimmerman's recommendations, Mr. Mark Lahey, a vocational consultant retained by Employer, began a search for available employment consistent with Claimant's physical limitations

[ 126 Pa. Commw. Page 621]

    and forwarded eleven job leads to the Claimant. Mr. Lahey, testifying by deposition, stated that he informed Claimant of each lead either personally or by mailgram. He subsequently forwarded descriptions of each job to Dr. Zimmerman, who approved all but one of the jobs (a cashier position at Z & L Lumber Co.).

After having received Dr. Zimmerman's and Mr. Lahey's depositions, and having heard the Claimant's testimony, the referee granted the Employer's modification petition. Specifically, the referee entered the following pertinent findings of fact:

4. The claimant was notified of the eleven job opportunities by Mark Lahey, of Options, a vocational placement and rehabilitation service.

5. The claimant applied for seven of them but not the other four.

6. The following jobs were available to the claimant, and he was advised of them:

     a. A telephone sales job with Sears and Roebuck paying $3.35 per hour for 20 to 29 hours per week, available 3/26/84

     b. Watchman job with County of Washington available as of 2/6/84 at $5.49 per hour, 40 hours per week, available and claimant advised as of 2/6/84

     c. Two jobs with Z & L Lumber, one a cashier job and the other a sales job, the cashier job paying $3.45 per hour and the sales personnel job $10,000 to $12,000 per year, ...


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