Summary
In Billante, supra, the employer filed a petition to terminate or modify a compensation agreement, and its sole evidence was the testimony of a physician who stated that the claimant was recovered from her injury. He further testified, however, that the claimant was unable to work at her old job but could do sedentary work.
Summary of this case from Borough of Catawissa et al. v. ShultzOpinion
Argued January 8, 1973
February 6, 1973.
Workmen's compensation — Total disability — Burden of proof — Available work — Medical testimony — Error of law.
1. An injured employe is entitled to workmen's compensation benefits for total disability when the employe can perform only work specially fitted to his physical condition unless the employer sustains its burden of proving that such work is available to the employe. [533-4]
2. The Workmen's Compensation Appeal Board, having accepted as true medical testimony that an injured cook was now capable of performing only sedentary work of a selective type, erred as a matter of law in denying benefits for total disability, in the absence of proof by the employer that such a job, of which the employe is capable, is available. [534]
Argued January 8, 1973, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Appeal, No. 721 C.D. 1972, from the Order of the Workmen's Compensation Appeal Board in case of Elizabeth Billante v. Stouffer's Foods, Inc., Docket No. A-64073.
Petition to Workmen's Compensation Appeal Board by employer to terminate disability payments. Award reducing disability from total to seventy-five percent partial disability entered by Board, affirming referee. Employe appealed to the Commonwealth Court of Pennsylvania. Held: Reversed. Agreement for total disability reinstated.
Alexander J. Pentecost, for appellant.
Raymond F. Keisling, for appellee.
The appellant, Elizabeth Billante, was injured in November 1964 in her employment as a cook by the appellee, Stouffer's Foods, Inc. In May 1965 she returned to work and compensation payments were suspended. However, her disability recurred and by supplementary agreement she received compensation for total disability until January 1968. At that time the appellee filed a modification petition alleging only 25 percent partial disability, which petition after hearing was denied by a referee who found the appellant still totally disabled. In March 1970 the employer filed a petition for termination or modification alleging that all disability had ceased. The referee found that the appellant's disability had changed from total to 75 percent and awarded benefits for partial disability. The Workmen's Compensation Board affirmed the referee. The appellant contends that the Board erred as a matter of law in not awarding the claimant compensation for total disability and we agree.
At the hearing the employer's evidence consisted solely of the testimony of a physician who, based upon x-rays and a recent examination, pronounced the claimant completely recovered from her 1964 injuries. The claimant's physician testified that the claimant was unable to work as a cook but that with training she might be capable of doing sedentary work, such as that of restaurant cashier. No evidence was adduced by the employer showing that, assuming the claimant to be disabled, work of a kind she could perform was available. The Board's finding of 75 percent disability was obviously an acceptance of the claimant's physician's description of her condition; that is, that she was totally disabled for work as a cook but physically capable of performing sedentary work of a selective type.
The law is clear that where the injured person can perform only work specially fitted to his physical condition, the burden is on the employer to show that such work is in fact within reach, and that absent such proof the claimant must be compensated as for total disability. Consona v. R. E. Coulborn Company, 104 Pa. Super. 170, 158 A. 300 (1932); Unora v. Glen Alden Coal Co., 377 Pa. 7, 104 A.2d 104 (1954).
The instant case is indistinguishable from Kirk v. L. Bauer, Jr., Inc., 209 Pa. Super. 357, 228 A.2d 228 (1967). There, the Superior Court held that the Workmen's Compensation Board's conclusion that a claimant was entitled to compensation for partial disability only was erroneous in the face of a showing that the claimant, a former electrician, could do no lifting, no work on ladders, no work in cramped positions, and no holding of heavy objects, and in the absence of proof by the employer of the availability to the claimant of a position not requiring those activities.
ORDER
And now, this 6th day of February 1973, the order of the Workmen's Compensation Board is reversed, the appellant's petition for termination or modification is dismissed, and the agreement for total disability is reinstated.