Thomas v. Workmen's Compensation Appeal Board , 104 Pa. Commw. 361 ( 1987 )

Opinion by

Senior Judge Kalish,

Helen Thomas petitions for review of a decision of the Workmens Compensation Appeal Board (Board) affirming with a modification a referees decision which granted the modification petition of Winzek Catering Service.

Thomas sustained a work-related injury on October 16, 1980, while working as a cook for Winzek Catering Service. She received total disability compensation pursuant to a notice of compensation agreement. On November 23, 1982, Winzek filed a modification petition, pursuant to section 413 of The Pennsylvania Workmens Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 PS. §772, alleging that Thomas’ disability was no longer total, and that jobs were available which she was capable of performing.

The referee credited the testimony of an orthopedic surgeon, Dr. Holland, and a family specialist, Dr. Lee. Both physicians testified that Thomas is capable of performing light work, with various restrictions. The referee also credited the testimony of Christina Strom, a vocational rehabilitation expert. Strom testified that the job of homebound telephone solicitor was made available to Thomas, but Thomas declined the interview. Thus, the referee granted Winzek’s modification petition, and reduced compensation from total to partial disability as of November 23, 1982, the date Winzek filed its petition.

The Board affirmed the referee’s decision to modify compensation from total disability to partial disability. However, the Board changed the date of the modification from November 23, 1982 to March 24, 1982, having determined that the referee capriciously disregarded evidence in the record showing that the job was made available to Thomas on the latter date.

Thomas contends that there was not substantial evidence to support the referee’s finding that work was available since the job of homebound telephone solicitor was compensated on a commission basis, and therefore had no wage or salary. She further argues that the Board erred in modifying the referee’s decision as to the date on which her disability had decreased.

Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether necessary findings of feet are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704; Estate of McGovern v. State Employees’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

When an employer seeks to modify a compensation agreement by asserting that a claimants disability is no longer total, the employer has the burden of proving that the disability has been reduced and that work is available which is within the claimants capabilities. McCrory Stores v. Workmen’s Compensation Appeal Board, 80 Pa. Commonwealth Ct. 76, 470 A.2d 1124 (1984).

The work proposed must be actually available to the claimant. Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 91 Pa. Commonwealth Ct. 543, 498 A.2d 36 (1985) (allocatur granted 510 Pa. 279, 507 A.2d 386 (1986)). A position may be found to be actually available if it can be performed by the claimant, considering the claimants physical restrictions, age, intellectual capacity, education, previous work experience, and other relevant considerations. Id. Moreover, since workmens compensation cases define disability in terms of a loss of earning power, the employer must prove the availability of remunerative employment for which the claimant is qualified. Altemose Co. (Sheraton) v. Workmen’s Compensation Appeal Board, 60 Pa. Commonwealth Ct. 511, 432 A.2d 267 (1981).

A review of the record reveals that the vocational rehabilitative expert considered claimants physical limitations, medical records, industrial background, prior work experience, educational background, and mental outlook. The expert testified that she located a position for the claimant as a homebound telephone solicitor for Red White and Blue Thrift Stores. The claimants physician indicated that he believed that claimant was physically capable of performing the duties of that position.

The vocational expert further testified that the job of homebound telephone solicitor involved working four hours a day, five days a week, and that the average employee earns $65.00 to $70.00 a week. Thus, the employer met its burden of proving work availability. Accordingly, we will affirm that portion of the Boards order which affirmed the referees decision to modify the claimants disability from total to partial.

Regarding the issue as to when work became available to the claimant, the Board correctly stated that modification should take effect as of the date the claimants disability decreased. However, the Board, in modifying the date the claimants disability changed from total to partial, raised an issue not properly before it. The employer had asserted before the referee that the date for modification of disability was November 23, 1982. The employer did not question that date, but mentioned it for the first time in its brief to the Board. Accordingly, we will reverse that portion of the Boards order which changed the date of modification from November 23, 1982 to March 24, 1982. Any modification order shall reflect credit for past compensation paid in excess of the partial disability rate awarded.

Order

Now, March 5, 1987, that portion of the order of the Workmens Compensation Appeal Board, No. A-86897, dated August 2, 1984, which affirms the referees decision to modify Helen Thomas’ compensation from total disability to partial disability, is affirmed. That portion of the Board’s order which modifies the date of modification is reversed. Any modification order shall reflect credit for past compensation paid in excess of the partial disability rate awarded.