10 Pa. Commw. 67 | Pa. Commw. Ct. | 1973
Opinion by
This is an appeal from an order, dated November 29, 1972, of the Workmen’s Compensation Appeal Board (Board) dismissing the appeal of the United States Steel Corporation (USS) and thereby affirming the award of compensation to Joseph M. Muniz, Jr. (Muniz).
The pertinent facts taken from the record are that Muniz, a 29-year-old “solution tender” with six years service to USS, was injured on August 15, 1969 in the course of his employment. As a solution tender, Muniz’ work entailed the lowering of a 95-pound, five feet long, anode into a vat for an electrolytic tinning process. The anode was attached to a hook which was raised and lowered by way of a jib crane. The process in
USS raises three issues, namely (1) that the referee’s and Board’s finding that Muniz was injured within the scope of his employment is not supported by substantial evidence, (2) that the Board’s award of total disability benefits was in error because of the availability of work for Muniz and (3) that the Board erred in setting aside the referee’s granting of subrogation against workmen’s compensation benefits awarded where the employer has paid disability benefits to the worker on the basis that the disability was then determined by the employer to be “non-occupational.”
Our careful reading of the record in this case permits us to conclude that there is sufficient substantial competent evidence in the record to establish that Muniz was injured within the scope of his employment. We next turn to the second issue raised by USS. In this regard, USS presented the testimony of an employe of an independent employment agency operating in Western Pennsylvania. This witness testified generally that there were many jobs available to persons with Muniz’ injuries, as they had been described to the witness. He also made note that the employment ads in the local Pittsburgh newspapers indicated the availability of many jobs for persons with partial disability. However, on cross-examination, this witness admitted (1) that if a prospective worker had been declared totally disabled by the Social Security Agency (as Muniz had), and (2) that if a prospective worker had been denied employment by his prior employer (the record discloses that USS had so denied Muniz), these additional factors would make a difference in the witness’ evaluation of the availability of work for such a disabled worker. These two factors, immediately mentioned above, were not given to the witness as part of his hypothetical question.
USS relies upon Barrett v. Otis Elevator Company, 431 Pa. 446, 246 A. 2d 668 (1968), Petrone v. Moffat
The record in this case conclusively establishes that Muniz cannot engage in the type of work he was engaged in prior to his injury. Our reading of Barrett teaches us that it is not just that there is work available for partially disabled persons, but that in addition, there is work available to the individual partially disabled worker. In other words, it is not just generally available work, but rather work specifically related to the worker involved in the case at issue. As already pointed out, USS’ expert employment witness did not take into account, nor was he given, pertinent factual information concerning Muniz, from which the expert could make a determination that work was available to Muniz. The Matrumos case is distinguishable from this case in that there the employer presented evidence of at least nine specific positions which the claimant in that case could fill and which the claimant did not contradict on the record. Hence, Matrumos does not control the outcome of this case. Once again, our care
On the third issue raised by USS, we hold that the Board committed an error of law. The second paragraph of Section 319 of the Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P. L. 736, added by Act of June 21, 1939, P. L. 520, as amended, 77 P.S. §671 states in pertinent part: “Where an employe has received payments for the disability or medical expense resulting from an injury in the course of his employment paid by the employer or an insurance company on the basis that the injury and disability were not compensable under this act in the event of an agreement or award for that injury the employer or insurance company who made the payments shall be subrogated out of the agreement or award to the amount so paid, if the right to subrogation is agreed to by the parties or is established at the time of hearing before the referee or the board.”. The Board, in its adjudication, stated “There is simply no competent evidence in the record to support the subrogation interest and therefore that claim is not approved.” The record does not support this statement. We note in the record that, in its answer to the claim petition of Muniz, USS specifically made note of its subrogation claim on behalf of the Equitable Life Insurance Society of the United States. Also, in his testimony, Muniz admitted that he had received such sickness and accident benefits from May 3, 1970 until May 1,1971. The record further discloses that these payments were in the amount of $76.00 per week between May 3, 1970 and October 31, 1970 and $17.39 per week from November 1, 1970 through May 1, 1971. In view of these recorded facts, and the mandate of the above-quoted section of the Act, we hold that the Board committed an error of law and
Order
And Now, this 1st day of August, 1973, judgment is entered in favor of -Joseph M. Muniz, Jr., and against United States Steel Corporation for total disability at the rate of $60.00 per week commencing April 26, 1970 and continuing into the future until such time as his disability ceases or changes in extent or character together with legal interest for compensation benefit payments withheld or not paid; United States Steel Corporation is directed to pay to C. Ramaswamy, M.D. $900.00, Charleroi-Monesson Hospital $192.25 and Charleroi-Monesson Hospital $478.00; and the Equitable Life Insurance Society of the United States is granted subrogation rights for all payments made by it to Joseph M. Muniz, Jr., between May 3, 1970 through May 1, 1971, all of which benefits and payments shall be made under the provisions of the Workmen’s Compensation Act.