79 Pa. Commw. 300 | Pa. Commw. Ct. | 1983
Opinion by
King Fifth Wheel (Employer) appeals here from an order of the Workmen’s Compensation Appeal Board (Board) which reversed ¡the action of the referee in reducing, from total to partial, benefits payable to Claimant, Thomas Rhodes. The Board ordered reinstatment of total disability compensation. We will affirm.
The facts in this case are relatively uncomplicated. Claimant suffered a back injury on February 8, 1979 for which total disability compensation was paid pursuant to a Notice of Compensation Payable. On .September 22, 1980, Claimant’s employer filed a modification petition averring therein that Claimant had become only partially disabled. The testimony of the Employer’s and Claimant’s medical witnesses was substantially to the effect that Claimant continued to be disabled, but could undertake some type of employ
*303 The defendant presented no evidence on the claimant’s qualifications for the job ¡of dental lab -trainee. The record is completely devoid of any evidence concerning claimant’s educational or work background. The record is equally barren as to what if ¡any qualifications 'are necessary for the job of dental lab trainee.
We conclude that although the defendant proved that the claimant was capable of performing -the j:ob, ,the defendant failed to prove it was available to the claimant. (Emphasis added.)
In general, we agree ¡with the ¡statements by the Board,
We are aware, of course, that where the party with the burden of proof prevailed before ¡the referee, -and the Board takes no additional evidence, our review is limited to the determination of whether constitutional rights have been violated, whether ¡an error of law was committed, or whether a necessary finding of fact was unsupported by substantial ¡evidence. Lehman v.
In this case, it is clear that the sole issue is whether or not the referee’s findings, reducing ¡disability from total to partial, are supported by substantial evidence.
First, we note that the referee found that there was available employment as of April 7, 1981, based on testimony at a hearing on April 9, 1981, when Claimant learned fox ¡the first time of the suggested job opening. We note, also, that the reduction in disability benefits was ordered by the referee as of March 19, 1981. Furthermore, the suggested availability of a job for the Claimant was not based upon the testimony of an expert witness, as in Dreher v. Workmen’s Compensation Appeal Board, 38 Pa. Commonwealth Ct. 473, 393 A.2d 1081 (1978). Actually, we find more influential the reasoning in Livingston v. Workmen’s Compensation Appeal Board, 67 Pa. Commonwealth Ct. 497, 447 A.2d 715 (1982). As we pointed out in Livingston, it is not sufficient to offer medical testimony to support a referee’s finding of partial disability; the employer’s burden of proof requires more. We .there stated that “ [u]nless the Employer proves also that there is available work within the Claimant’s physical limitations, however, the medical evidence of partial as opposed to total disability in and ¡of itself is insufficient to reduce the award.” In Livingston, moreover, a mailgram was received by the Claimant who refused the employment, yet we held ¡that there was nothing in the record to prove that the job was available at any time other than the date on which it was received by Claimant, a considerable time prior ,to the hearings on which the referee’¡s decision was based. Here there is no evidence that the existence of employment of any kind was ever communicated to the Claimant prior ,to the hearing on April 9,1981. Also, as the Board pointed out, there is
Accordingly, fo,r the reasons set forth, we will affirm.
Obdeb
Now, December 30, 1983, the order of the Workmen’s Compensation Appeal Board at No. A-81496, dated November 12,1982, is affirmed.
In affirming we construe the word “capable” emphasized above as indicating that .tbe Claimant was physically capable ¡of performing tbe job, and not -otherwise capable.