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September 8, 1997


Appealed From No. A94-2074. State Agency Workers' Compensation Appeal Board.

Before: Honorable Dan Pellegrini, Judge, Honorable Jim Flaherty, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Pellegrini.

The opinion of the court was delivered by: Pellegrini


FILED: September 8, 1997

Eric Dobransky (Claimant) petitions for review of the November 7, 1996 decision and order of the Workers' Compensation Appeal Board (Board) affirming the decision of a Workers' Compensation Judge (WCJ) suspending Claimant's benefits because Claimant was physically able to return to work. Not disputing on appeal the WCJ's determination that he is physically able to return to his pre-injury position, Claimant appeals, contending only that the jobs offered to him were not available because he was living in Pittsburgh and they were offered in Philadelphia.

The facts as found by the WCJ are as follows. Claimant was originally hired by Continental Baking Company (Employer) in 1986 at its Braun's Bakery location in Pittsburgh and subsequently rehired by Employer at its Philadelphia center some time in 1988. Claimant worked as a transport driver *fn1 for Employer until he sustained a fracture of his left thumb on July 13, 1990, while unloading bakery products and compensation was paid. In January of 1991, while still receiving compensation benefits, Claimant, for financial reasons, returned to live at the house which he owned in Pittsburgh.

While Claimant was in Pittsburgh, Employer had offered him three separate positions as transport driver, his pre-injury job, "jockey duties", *fn2 or receiver of returns, *fn3 all of which the Claimant was found to be medically able to perform. In response to the numerous letters and telephone calls, Claimant either informed Employer that he would return to work at one of those positions, only to subsequently notify it that he would not be returning, or merely ignored them. Though his pre-injury position of transport driver required that he pass a Department of Transportation physical examination, Claimant failed to appear to take the examination when they were scheduled. Employer then filed a petition to suspend benefits, alleging that Claimant's disability had been reduced so that he could return to his pre-injury job or other positions at wages equal to or in excess of Claimant's pre-injury wages.

Because Employer produced medical evidence of a change in Claimant's condition and evidence of a referral to open jobs, including his pre-injury position for which Claimant had been given medical clearance, the WCJ suspended Claimant's benefits as of July 24, 1991, because Claimant acted in bad faith in failing to follow through on Employer's job offers.

Claimant appealed to the Board for the first time contending that the WCJ erred by finding that the positions of transport driver or receiver of returns were "actually available" to him since they were positions in Philadelphia and he had moved to Pittsburgh. The Board affirmed, holding that based on Claimant's failure to object to Employer to his working in Philadelphia, combined with his lack of good faith in pursuing the positions offered by Employer, it would be neither appropriate nor justified to require Employer to prove job availability in Pittsburgh. This appeal followed. *fn4

Before us, Claimant contends that the WCJ erred in granting the suspension petition based on his Conclusion that suitable employment was "actually available" when Claimant resided in Pittsburgh, and Employer only offered employment in Philadelphia. However, Employer contends that this issue has been waived.

Employer's petition for suspension asserted that the positions offered to Claimant were within the "relevant job market". In his answer, Claimant did not challenge that assertion, only contended that the petition for suspension should be denied because he remained totally disabled. Also, Claimant never made any argument before the WCJ nor did he offer any evidence in the hearing contesting that Philadelphia was the relevant job market. Employer contends that the issue of job availability has been waived because Claimant failed to raise this issue in his answer to Employer's petition to suspend or at the hearing before the WCJ.

In DeMarco v. Jones & Laughlin Steel Corporation, 513 Pa. 526, 522 A.2d 26 (1987), a plurality opinion issued by our Supreme Court, the Court considered the issue of whether the Board may address a defense raised by an employer for the first time before the Board, which was not raised in that employer's answer to the claimant's claim petition. As the plurality opinion stated:

The referee not only functions as the factfinder in the workmen's compensation adjudicatory system, he or she is also charged with making a record of hearing, and such findings of fact and Conclusions of law "as the petition and answers and the evidence produced before him and the provisions of this act shall, in his judgment, require." 77 P.S. ยง 883. Appeals are taken on the basis of the record produced before the referee and that record is necessarily limited to the claim petition, the answers, and the evidence. Legal issues and facts not presented to the referee cannot be asserted on appeal without sacrificing the integrity, efficiency and orderly administration of the workmen's ...

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