COASTAL TANK L. v. W.C.A.B. (SWICK), 72 Pa. Commw. 308 (1983)

457 A.2d 149

Commonwealth Court of Pennsylvania.Argued October 4, 1982
February 24, 1983.

Workmen’s compensation — Petition to terminate — Burden of proof — Scope of appellate review — Inconsistent findings — Capricious disregard of competent evidence — Conflicting evidence — Availability of work — Ability to do work.

1. An employer seeking to terminate or modify a workmen’s compensation award or agreement must prove that the claimant’s disability has ceased or has been reduced and that work is available which is within the capabilities of the claimant. [311]

2. In a workmen’s compensation case where the party with the burden of proof did not prevail below, review by the Commonwealth Court of Pennsylvania is to determine whether findings of fact were consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence, leaving to the factfinder questions of credibility and the resolution of conflicts in the evidence. [311]

3. A petition to terminate or modify a workmen’s compensation award or agreement is properly denied when the employer is found to have failed in its burden to establish the claimant’s ability to perform available work and in so finding competent evidence was not capriciously disregarded. [312]

Argued October 4, 1982, before President Judge CRUMLISH, JR. and Judges WILLIAMS, JR. and DOYLE, sitting as a panel of three.

Page 309

Appeal, No. 3092 C.D. 1980, from the Order of the Workmen’s Compensation Appeal Board in case of John H. Swick v. Coastal Tank Lines, No. A-78890.

Petition to the Department of Labor and Industry to terminate workmen’s compensation benefits. Petition denied. Employer appealed to the Workmen’s Compensation Appeal Board. Denial affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.

Theodore E. Breault, for petitioner.

Kenneth E. Fox, Jr., for respondent, John H. Swick.

OPINION BY PRESIDENT JUDGE CRUMLISH, JR., February 24, 1983:

Coastal Tank Lines, Inc. (Employer) appeals a Workmen’s Compensation Appeal Board order which affirmed the referee’s dismissal of its Termination Petition. We affirm.

John Swick (Claimant), a truck driver for Employer, sustained a job-related injury on January 13, 1978 and has, since then, received total disability benefits. Employer filed a Termination Petition,[1] alleging that Swick had fully recovered as of July 18, 1979.

Page 310

Conflicting medical evidence[2] was presented to the referee. Employer does not challenge here, as he did before the Board, the referee’s finding that the Claimant is partially disabled. Instead, Employer asserts that the referee erred in rejecting the evidence of its vocational expert by finding that

21. The defendant [Employer], although given the opportunity, failed to present credible evidence or testimony to show that work was available to the claimant which his limited physical condition would permit him to perform.

Employer argues that this evidence was uncontroverted and clearly established the availability of light work capable of being performed by Claimant. We disagree.

Page 311

It is well settled that the burden is on the employer to show that disability has ended or has been reduced and that (1) work is available to claimant and (2) claimant is capable of doing such work. State Products Corp. v. Workmen’s Compensation Appeal Board, 61 Pa. Commw. 366, 434 A.2d 207 (1981). When the decision below is against the party with the burden of proof, our scope of review is limited to determining whether the findings of fact are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence. Roadway Express, Inc. v. Workmen’s Compensation Appeal Board, 54 Pa. Commw. 169, 420 A.2d 774 (1980). Finally, questions of credibility and resolution of conflicting testimony are for the referee, not the reviewing court. Padilla v. Chain Bike Corp., 27 Pa. Commw. 190, 365 A.2d 903 (1976).

Employer has not challenged the referee’s finding that Claimant is partially disabled and unable to drive a truck. Once there is a showing that a claimant, although unable to do the type of work in which he was engaged at the time of his injury, is capable of some type of work, the employer must then show the availability of work within claimant’s capabilities State Products Corp.

Employer presented to the referee the deposition of Mr. Michael Carrick, Manager of the Job Bank[3] of the Pennsylvania State Employment Service. Based on information from defense counsel,[4] Mr. Carrick developed

Page 312

a list of jobs available to Claimant. This, however, only met a part of Employer’s burden. The referee found that Employer failed to establish Claimant’s ability to perform available work, and we will not say that he capriciously disregarded competent evidence[5] in so finding.

Accordingly, the order of the Workmen’s Compensation Appeal Board is affirmed.

ORDER
The Workmen’s Compensation Appeal Board order No. A-78890, dated December 4, 1980, is hereby affirmed.