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LUKENS v. WORKMEN'S COMPENSATION APPEAL BOARD (WILLIAMS) (12/06/89)

decided: December 6, 1989.

LUKENS, INC., PETITIONER,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (WILLIAMS), RESPONDENTS



PETITION FOR REVIEW (WORKMEN'S COMPENSATION)

COUNSEL

Terry W. Knox, with counsel, Barbara S. Swinger, MacElree, Harvey, Gallagher & Featherman, Inc., West Chester, for petitioner.

Joseph F. Wusinich, III, West Chester, with him, John J. Stanzione, Wusinich and Brogan, West Chester, for respondent Williams.

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

Author: Narick

[ 130 Pa. Commw. Page 481]

Lukens, Inc. (Employer) appeals the Workmen's Compensation Appeal Board's (Board's) decision reversing the referee, who had granted Employer's Petition for Modification. Employer filed the petition on May 9, 1985, alleging that, as of April 29, 1985, James W. Williams' (Claimant's) benefits should be reduced because there was a job immediately available within his physical and medical circumscriptions. We affirm.

The facts as found by the referee are as follows. On September 4, 1978, Claimant suffered a work-related contusion to the lower part of his left leg when it was struck by a power track machine. This injury aggravated his pre-existing circulatory condition of phlebitis.

As a result of that injury, Claimant became disabled on September 20, 1978. The parties entered into an agreement on October 12, 1978, providing for the payment of workmen's compensation benefits for temporary total disability in the amount of $213.00 per week. As a class B electrician, Claimant's pre-injury wage had been $402.36 per week.

At Employer's request, Dr. Lawrence K. Spitz examined and treated Claimant on February 1, 15, 22 and March 8,

[ 130 Pa. Commw. Page 4821985]

. On the basis of Dr. Spitz's assessments, contained in a physical capacities form, Employer made a light duty job available to Claimant through its in-house sheltered workshop program.

The referee found that the description for the clerk's assistant position had been approved by Dr. Spitz prior to Employer offering it to Claimant and also that it was within Claimant's medical restrictions. He further found that the position became available to Claimant on April 29, 1985, and that Employer apprised Claimant of its availability and suitability prior thereto. The position's average weekly wage was $242.00.

The referee granted Employer's request for a partial supersedeas on December 20, 1985, effective April 29, 1985. Claimant's benefits were reduced from total, ...


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