91 Pa. Commw. 137 | Pa. Commw. Ct. | 1985
Opinion by
Nicholas Palmier! (petitioner) appeals here from an order of the Workmen’s Compensation Appeal
The petitioner, ivhile employed as a truck driver and loader for East End Trucking (employer), a moving company, suffered a work-related injury on July 3, 1975. The parties thereafter executed various supplemental agreements and final receipts, culminating in a supplemental suspension agreement effective February 2, 1976. On that date the petitioner returned to work for the employer at a light-duty job at his former wages, the parties having agreed that he continued to sustain an undetermined partial disability.
The petitioner, citing Busche v. Workmen’s Compensation Appeal Board (Townsend & Bottum, Inc.), 77 Pa. Commonwealth Ct. 469, 466 A.2d 278 (1983), contends that the Board erred in placing the burden on him to prove that his condition had worsened or recurred, and argues that he merely needed to prove that, while his disability continued, his loss of earnings had recurred. In Busche, of course, we held that, where a claimant’s disability continued, relieved only by a period of employment in a specially created job, proof of the discontinuance of that position is a claimant’s only burden, and that the employer bears the burden of establishing the existence of the type of job that the claimant is able to perform.
The employer argues that Busche should be distinguished on three points: 1) because that claimant had been employed by the employer in a “specially created” job; 2) because medical testimony there established an increase or change in that claimant’s physical disability; and 3) because the suspension of benefits there had apparently been undertaken without benefit of a suspension agreement or other authorized basis for discontinuing benefits.
Like the claimant in Busche, however, the petitioner here returned to light duty status with no loss of wages until the employer ended the position be
■ The employer further argues that, where a partially disabled employee, such as the petitioner, has been employed by a different employer, and subsequently loses that position, the first employer should no longer have the burden imposed upon it to establish job availability. In Oshinski v. Workmen’s Compensation Appeal Board (Lincoln Bank), 86 Pa. Commonwealth Ct. 181, 484 A.2d 225 (1984), a disabled claimant was able to reemploy herself six years after she had initially suffered a compensable injury. She then received partial disability payments, which were later properly suspended as a consequence of her earnings exceeding her pre-injury weekly wages. We held there that she was entitled to resumption of compensation benefits when, following her relocation to another area, she was unable to find work within her diminished capacity.
We will, therefore, reverse the Board and reinstate the order of the referee.
Order
And Now, this 14th day of August, 1985, the order of the Workmen’s Compensation Appeal Board dated October 31, 1983 in the above-captioned case is reversed and the order of the referee dated July 7, 1982 is reinstated.
Because a claimant’s partial disability compensation is based upon tbe difference between his wages as an injured worker and his earning capacity, as indicated by his pre-injury wages, compensation may properly be suspended when the post-injury earnings equal or exceed the wages previously earned. See Section 306(b) of The Pennsylvania Workmen’s Compensation Act (Act), Act of ,Tune 2, 1915, P.L. 736, as amended, 77 P.S. §512.
In OshinsM, we observed that, where a final receipt or termination order has not been entered, but payments halted, as here, based upon the extent of earnings, a different situation is presented, and the burden of proof should be allocated as set forth in Busche.