541 A.2d 804 | Pa. Commw. Ct. | 1987
Opinion by
Norbert J. Baumgart (Petitioner) appeals from an order of the Workmens Compensation Appeal Board (Board) which affirmed a referees decision granting Pullman Standards (Employer) petition for modification. For the reasons set forth below, we reverse.
On August 17, 1978, Petitioner sustained a work-related injury to his back. Pursuant to a notice of com
Following a hearing, a referee found that as of March 31, 1982, Petitioners disability had resolved itself into a partial disability whereby he was able to perform sedentary and other light work. The referee further found that a position of in-plant truck driver was made available to Petitioner as of March 31, 1982. In his conclusions, the referee stated: “The [Petitioner] is able to perform work with restrictions imposed upon his return to work by his physician and the record reflects that a job has been made available to him from which he would be able to establish an earning capacity of $360.00 a week.”
The referee concluded by granting Employers petition for modification and reducing Petitioners weekly benefits to a rate of $106.66 per week.
Petitioner makes two arguments. First, he argues that the record does not contain substantial evidence to support the referees finding that a suitable position was made available to him. Second, Petitioner contends that because the determination as to the suitability of the allegedly offered position was made after the alleged offer was withdrawn, the Board erred in affirming the referees grant of Employers modification petition.
Our scope of review is limited to whether the Board has committed an error of law, violated a constitutional right, or whether necessary findings of fact are not supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704. In the very recent case of Kachinski v. Workmen's Compensation Appeal Board, 516 Pa. 240, 532 A.2d 374 (1987), our
Petitioner contends initially that while a suitable position may have been available, the referees finding that such a position was in fact made available to him, i.e. that he had actual notice of it, is not supported by substantial evidence. We agree.
The critical finding of the referee is based on the deposition testimony of Joseph McCabe, a rehabilitation counselor. McCabe testified that he had contacted International Mill Service (International Mill), a company that employs truck drivers and other workers for slag producing operations in steel mills owned by other companies, and was told by John Carrol, International Mills manager, that an in-plant truck driver position with International Mill was available as of mid-March, 1982. The position in question was available at International Mills operation located in the Babcock & Wilcox Steel Mill in West Mayfield, Pennsylvania. McCabe testified that he told Petitioner about this position when he visited his house on March 18, 1982 and in a followup letter dated March 26, 1982. This letter states in part: “[W]e also advised you that [we] located several positions that would be suitable for you. These included: 1.) In-Plant Truck Driver at Babcock-Wilcox, salary
Petitioner testified that following the discussion with McCabe, he contacted Babcock & Wilcox to apply for the truck driver position. He stated that Babcock & Wilcox’s personnel manager told him that the job reference from the rehabilitation counselor probably referred to a potential strike of in-plant truck drivers and that, should there be a strike, such positions would become available. Petitioner further testified that when he called back two days later, he was told that the strike was settled and no positions were available. He stated that he was never referred to International Mill and that he had never heard of International Mill until six
Substantial evidence is evidence that a reasonable mind could accept to support the conclusion reached in the. specific finding of fact. Duquesne Light Co. v. Workmen's Compensation Appeal Board (Zalar), 89 Pa. Commonwealth Ct. 496, 492 A.2d 1176 (1985). After a thorough review of the record, we conclude that the referees finding that the in-house truck driver position with International Mill was actually made available to Petitioner and that he was specifically advised of it is not supported by substantial evidence. Therefore, we hold that Employer has not met his burden of proving he made work available which Claimant was capable of performing.
Accordingly, the order of the Board is reversed.
Order
And Now, December 17, 1987, the order of the Workmens Compensation Appeal Board in the above-captioned matter is reversed.
Since Petitioners argument regarding substantial evidence disposes of the case, we need not address his second contention.