IN THE COURT OF COMMON PLEAS
OF THE 26th JUDICIAL DISTRICT
OF PENNSYLVANIA

LOIS ELAINE McGAW,                                       : COLUMBIA COUNTY BRANCH     
                       PLAINTIFF

VS                                                                            :  DOMESTIC RELATIONS

DANIEL A. McGAW,                   		         : D.R.PACSES No.:  414100403
                      DEFENDANT    		         : 1998-DR-474
                
Susan M. Hill, Esq., Attorney for Plaintiff 
Noah G. Naparsteck, Esq., Attorney for Defendant

OPINION
February 8, 2001, Naus, P.J.
This matter arises from Plaintiff’s Petition for Modification with the Office of Domestic Relations on June 8, 2000.  The Defendant filed exceptions to the Report and Recommendation of the Special Master which modified a prior order. The matter was then briefed and argued before this court and the matter was decided in favor of the Defendant and against the Plaintiff, dismissing the Petition for Modification. The Plaintiff filed an appeal.  This court writes this opinion for the benefit of the appeal.
The Defendant listed several grounds for his exceptions to the Report and Recommendation of the Special Master.  This court found that one ground is controlling, and therefore, only responded to that one.
The Special Master determined the Plaintiff’s net monthly income to be $1,356.60, which was a reduction from the prior Order where it was found to be $2,807, a reduction of approximately one-half.  The Defendant’s net monthly income was determined at $2,898.35.  As a result the Special Master ordered the Defendant to pay to the Plaintiff the sum of $451.77 per month in child support for the parties’ minor child and $261.59 per month in alimony pendente lite, for a monthly total of $713.36.  The child support portion to be paid by the Defendant reflected a 20 percent deviation because of $400 in Social Security income that was received by the Plaintiff on behalf of the minor child each month.  The controlling Order of February 10, 1999 required the Defendant to pay $387 for child support.  This new monthly total is an increase for Defendant of approximately $326, around 218%.
The testimony established that the Plaintiff had entered into a Worker’s Compensation settlement, which paid her $105,000 in full settlement of her claim.  Ninety-Nine Thousand ($99,000) Dollars of the settlement was placed into an annuity paying her $582.60 per month.  Six Thousand ($6,000) Dollars of the settlement was given to her directly.  Prior to entering into the Worker’s Compensation settlement, the Plaintiff was receiving $1,971.67 per month in Worker’s Compensation benefits.
Attorney Susan Henry, the Plaintiff’s Worker’s Compensation attorney, testified on behalf of the Plaintiff that the settlement was entered into because the employer had “threatened” to offer her a position through an employment service.  Attorney Henry believed that this was the offer of a job would be the first step in moving toward termination of the Plaintiff’s Worker’s Compensation benefits.
The Master found the Plaintiff’s substantial reduction in income was reasonable and ordered the Defendant to pay the increased child support and alimony pendente lite. He had not been required to pay alimony under the prior Order.
There is no doubt a Worker’s Compensation lump sum settlement is to be considered in calculating support.  Babish v. Babish, 361 Pa. Super. 118, 521 A.2d 955 (1987). 
Attorney Henry testified that the reason the Plaintiff entered into a Worker’s Compensation settlement with her employer was because the carrier had threatened to offer her a job with an employment service.  Notably, at the time the threat of employment was made, no independent medical examination had been conducted nor was there any other indication that there had been a change in the Plaintiff’s medical condition.  There was nothing more than the threat of a job offer may be offered to the Plaintiff. (N.T. 42)
Under Kachinsky vs. WCAB (Bevco Construction Company) 516 Pa. 240, 532 A.2d 374 (1987) there is a definite procedure that must be followed before benefits can be terminated.  First, the employer seeking to modify a claimant’s benefits on the basis that the employee has recovered some or all of his disability must first produce medical evidence of a change of condition.  Next, the employer must then produce evidence of a referral or referrals to a then open job which fits in the occupational category for which the claimant has been given medical clearance, i.e. light work, sedentary work, etc.  The Claimant must then demonstrate that he has in good faith followed up on the job referral.  Finally, if the referral fails to result in a job, then the Claimant’s benefits must continue.
The Plaintiff contends that she is so disabled that she is unable to maintain any form of employment. (N.T. 40) Furthermore, there was no evidence presented by the Plaintiff that the Employer had proof that the Plaintiff had recovered from some or all of her disability.  This alone would have defeated the employer’s attempt to terminate the Plaintiff’s benefits as it is the employer’s burden to prove a change in condition.  Even if the employer had been able to prove a change in the Plaintiff’s disability, the Plaintiff’s own testimony explains she would be unable to perform the job that was threatened to be offered.  Such a job offer would have been in bad faith and the Plaintiff would have been able to continue to collect benefits.  Further, no job had ever been offered. (N. T. 12)
There is no doubt that a voluntary reduction in income, which is unreasonable, will be of no effect on a support obligation.  Pa.R.C.P. 1910.16-2(d)(I).  To modify a support obligation based upon reduced income, a petitioner must establish that the change in circumstances which resulted in a reduction of income was not made for the purpose of avoiding a child support obligation and secondly, that a change in support is warranted based on petitioner’s efforts to mitigate any income loss.  Grimes v. Grimes, 408 Pa. Super. 158, 596 A.2d 240 (1991).  In effect, a petitioner must present evidence as to why he or she voluntarily changed her income and also as to why the acceptance of a lower income was necessary.  Id.  Otherwise, for calculation of a support obligation, the petitioner will be considered to have an income equal to his or her earning capacity as defined in the support guidelines.  Id.  The Plaintiff has failed to meet the burden of proving why her reduction income was necessary.
Therefore, based on the record developed before the Special Master, the Court correctly dismissed the Petition to Modify.

					         BY THE COURT:

				                    __________________________P_J.
		                                            HONORABLE SCOTT W. NAUS