Dissenting Opinion ry
Senior Judge Kalish:I respectfully dissent.
Section 406 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §717, provides:
All notices and copies to which any parties shall be entitled . . . shall be served by mail. . . . For the purpose of this article any notice shall be deemed served on the date when mailed, properly stamped, and addressed, and shall be presumed to have reached the party served; but any party may show by competent evidence that any notice or copy was not received, or that there was an unusual or unreasonable delay in its transmission through the mails. In any such case proper allowance shall be made for the party’s failure within the prescribed time to assert any right given by this act.
*62The department, secretary of the board, and every referee shall keep a careful record of the date of mailing every notice and copy required by this act to be served on the parties in interest. [Emphasis added.]
Thus, the Act creates a rebuttable presumption of receipt of the notice when such notice is mailed, properly stamped and addressed. This issue was raised before the Board, and the evidence was that the referees decision was “circulated” on December 18, 1984. The date of “circulation” is not what triggers the running of the appeal time. It is the receipt of notice which is presumed when the evidence shows a properly stamped, addressed and mailed letter containing such notice. There was no such finding.
Proof of mailing, correct addressing, and due posting of a letter raises the presumption that it was received by the addressee. Cwiklinski v. Burton, 217 N.J. Super. 506, 526 A.2d 271 (1987). We must focus upon whether claimants proofs are sufficient to allow him to overcome this presumption.
The fact of mailing cannot be established by the mere dictation or writing of a letter coupled with evidence of an office custom with reference to the mailing of letters, in the absence of some proof or corroborating circumstance sufficient to establish the feet that the custom in the particular instance had in fact been followed. The testimony from one who actually mails the notices or letters is necessary to establish conclusively the fact of mailing. On this issue, I would remand to the Board for a finding based on the evidence.
On the merits, I do not believe that there is sufficient substantial evidence to sustain the Boards modification of compensation. A modification of a compensation agreement means that the claimants condition has abated, and that work is available which the claimant is *63capable of doing. While the employer does not have to produce the job, work is available only if it can be performed by claimant, having regard for his physical condition, restrictions and limitations, his age, intelligence, education, and work experience. Farkaly v. Workmen's Compensation Appeal Board (Baltimore Life Insurance Co.), 91 Pa. Commonwealth Ct. 571, 498 A.2d 34 (1985), appeal granted 511 Pa. 231, 512 A.2d 1152 (1986) . The employer has the burden of proof. M.A. Bruder & Son, Inc. v. Workmen's Compensation Appeal Board (Harvey), 86 Pa. Commonwealth Ct. 353, 485 A.2d 93 (1984).
On the issue of available work, expert rehabilitation testimony indicated that a number of positions were available. Dr. Zimmerman, who was not the treating physician, opined that claimant could do this work, light work, within claimants limitations. However, the referee found that only one position was actually suitable for claimant, namely, a sitting telephone solicitations job for a handicapped person.
Claimants treating physician testified that claimants spinal and back condition was such that claimant could not perform this job. Claimant himself testified that when he told the company of his physical condition and his doctors opinion, the company told him not to bother to apply. Claimants work background was one of a janitorial nature and hard labor.
While it was within the referees province to determine if the claimant could perform this job, such conclusion must be a reasonable one based on the evidence, including the medical testimony. The evidence does not support the referees finding that the position was within claimants ability to perform.