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Freedman v. Crown Paper Bd. Co., et al

Commonwealth Court of Pennsylvania
Jul 2, 1973
307 A.2d 466 (Pa. Cmmw. Ct. 1973)

Summary

In Freedman, as here, the referee in the first instance found only that the total disability had changed to partial disability, and we held that it was an error of law to award partial disability without a finding that there was work available which the claimant could perform.

Summary of this case from Inter-State Tile Man. Co. v. W.C.A.B

Opinion

Argued June 8, 1973

July 2, 1973.

Workmen's compensation — Total disability — Partial disability — Light work — Available work — Burden of proof — Findings of fact — Error of law.

1. Whether a finding of the Workmen's Compensation Appeal Board is that the claimant can only perform light work or that he suffers from an unspecified partial disability, the total disability status of a workmen's compensation claimant cannot be changed by the board to partial disability unless the employer establishes that there is work available which the claimant is able to perform. [262]

2. In a workmen's compensation case, the fact finder must make a finding of fact on any crucial issue properly raised, and to fail to do so is an error of law. [262]

Argued June 8, 1973, before Judges KRAMER, WILKINSON, JR., and BLATT, sitting as a panel of three.

Appeal, No. 168 C.D. 1973, from the Order of the Workmen's Compensation Appeal Board in case of Nathaniel Freedman v. Crown Paper Board Company and Pennsylvania Manufacturers' Association Insurance Co., Insurance Carrier, No. A-65674.

Petition to terminate workmen's compensation agreement by employer. Agreement modified. Employer and employe appealed to the Workmen's Compensation Appeal Board. Appeals dismissed. Order of referee affirmed. Employe appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.

Gerald J. Haas, for appellant.

John F. McElvenny, for appellee.


Claimant-appellant received compensation for total disability under a workmen's compensation agreement for the period of February 10, 1970, to November 16, 1970. Employer-appellee filed a petition for termination of the agreement, alleging that all disability resulting from the injury had ceased as of November 17, 1970. The referee found that claimant-appellant's condition had changed to "undetermined partial disability," and modified the agreement to provide for a reduced amount of compensation. The Workmen's Compensation Appeal Board affirmed the referee's findings of fact and conclusions of law, and this appeal followed.

Only one cf the errors of law advanced by claimant-appellant requires attention, as it is dispositive of the appeal.

During the course of the hearing before the referee, employer-appellee's counsel presented medical testimony to support his burden of showing that all disability had ceased. Perhaps anticipating that the medical evidence would not sustain this burden, he called a witness who testified as to available work for claimant-appellant, and he also solicited the opinion of the physician as to the type of work claimant-appellant could perform. Claimant-appellant countered this evidence by testifying that, upon his brief return to work following the injury, he could not perform a task similar to that described by the employer-appellee's witness.

With the issue of whether available work had been shown posited squarely before the referee, it was then inexplicably ignored in the findings of fact and conclusions of law. The referee found only that the total disability had changed to partial disability. On appeal to the Board, claimant-appellant raised the failure of the employer-appellee to establish that work the claimant could perform was available. The Board likewise omitted any findings on this issue, and merely affirmed the referee's conclusion as to the change in disability.

Where the Board has determined that a claimant is disabled to the extent that he can no longer perform his former work, it is error to award partial disability unless the employer establishes that there is work available which the claimant can perform. Barrett v. Otis Elevator Company, 431 Pa. 446, 246 A.2d 668 (1968); Petrone v. Moffat Coal Company, 427 Pa. 5, 233 A.2d 891 (1967); Chamberlain Corporation v. Pastellak, 7 Pa. Commw. 425, 298 A.2d 273 (1973).

This proposition is valid when the finding of the Board is specifically that the claimant can perform only light work and, as here, when the finding is that the claimant suffers from an unspecified partial disability. Barrett, supra.

Thus, it was an error of law for the Board to award partial disability without a finding that there was work available which the claimant could perform. Since there is evidence both ways on this critical issue, we are not confronted with the problem of which party had the burden of proof. This record will support a finding either way. This Court cannot presume that the Board concluded that work was available merely because there was an award of partial disability. There must be a finding on this point.

For the foregoing reasons, we enter the following

ORDER

NOW, July 2, 1973, the award of partial disability is set aside and the case is remanded to the Workmen's Compensation Appeal Board for a finding on the issue of the availability of work that claimant-appellant could perform and for the making of an award based thereon.


Summaries of

Freedman v. Crown Paper Bd. Co., et al

Commonwealth Court of Pennsylvania
Jul 2, 1973
307 A.2d 466 (Pa. Cmmw. Ct. 1973)

In Freedman, as here, the referee in the first instance found only that the total disability had changed to partial disability, and we held that it was an error of law to award partial disability without a finding that there was work available which the claimant could perform.

Summary of this case from Inter-State Tile Man. Co. v. W.C.A.B
Case details for

Freedman v. Crown Paper Bd. Co., et al

Case Details

Full title:Freedman v. Crown Paper Board Company, et al

Court:Commonwealth Court of Pennsylvania

Date published: Jul 2, 1973

Citations

307 A.2d 466 (Pa. Cmmw. Ct. 1973)
307 A.2d 466

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