92 Pa. Commw. 396 | Pa. Commw. Ct. | 1985
Opinion by
W.& L Sales Company, Inc. (employer) has filed a Petition for Review of a decision of the Workmen’s Compensation Appeal Board (Board), reversing a referee’s order granting the petition of the employer for modification of Toby B. Drake’s (claimant) compensation benefits.
The claimant suffered a compensable injury under the provisions of The Pennsylvania Workmen’s Compensation Act
•In a workmen’s compensation case where the claimant has proven his inability to do the type of work in which he was previously engaged at the time he sustained his injury, the employer has the burden of proving the availability of other work which the claimant is capable of performing. Workmen’s Compensation Appeal Board v. H. P. Foley Co., 18 Pa. Commonwealth Ct. 540, 336 A.2d 892 (1975). In this case, the referee, in concluding that the employer had
The sole question before this Court is whether the Board correctly found that the referee erred as a matter of law in finding that the employer had met its burden of proving that employment had been made available to the claimant within his physical limitations.
It is axiomatic that where a party with the burden of proof prevails before the referee, and the Board takes no additional evidence, this Court’s review is limited to a determination of whether constitutional rights have been violated, whether an error of law has been committed, or whether a necessary finding of fact was unsupported by substantial evidence. Lehman v. Workmen’s Compensation Appeal Board, 64 Pa. Commonwealth Ct. 381, 439 A.2d 1362 (1982).
In order to meet its burden of proof that suitable work was available to claimant, the employer must do more than simply show that the claimant can perform certain work and that such work is available. 4156 Bar Corp. v. Workmen’s Compensation Appeal Board, 63 Pa. Commonwealth Ct. 176, 438 A.2d 657 (1981). In fact, work proposed for a partially disabled claimant must be actually available, that is, within his reach, and it must be brought to his notice by the employer. Kachinski v. Workmen’s Compensation Appeal Board, 91 Pa. Commonwealth Ct. 543, 498 A.2d 36 (1985); King Fifth Wheel Co. v. Workmen’s Compensation Appeal Board, 79 Pa. Commonwealth Ct. 300, 468 A.2d 1211 (1983). The referee made no finding of fact that 'the claimant had ever been informed of any job offer consistent with Ms physical limitations. The claimant’s physician may have been informed of a possible job opening; however, this is not a constructive commuMcation to the claimant. A careful review of the record reveals that the claimant was never inf ormed of the availability of alternative work, and the Board so found. Therefore, the referee made an error of law based upon his own findings of fact, and the Board properly reversed the referee. Workmen’s Compensation Appeal Board v.
As the Workmen’s Compensation Appeal Board committed no error of law, we accordingly affirm.
Order
And Now, October 23,1985, the order of the Workmen’s Compensation Appeal Board, A-87915, dated December 4, 1984, is affirmed.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1023.