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City of Philadelphia v. Workers' Compensation Appeal Board11/14/2002
City of Philadelphia (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) affirming an order of a Worker's Compensation Judge (WCJ) which denied Employer's Petitions to Modify and\or Suspend Worker's Compensation Benefits (Petitions). We affirm.
On September 6, 1987, William Serody (Claimant) sustained an injury to his left knee in the course and scope of his work for Employer as an acting Fire Battalion Chief. Pursuant to a Notice of Compensation Payable entered into by the parties, Claimant thereafter began receiving weekly benefits pursuant to the Pennsylvania Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4; 2501 - 2626.
On April 7, 1997, Employer filed the Petitions at issue alleging that as of October 18, 1996, Employer offered a job to Claimant within his physical capabilities, and further alleging that Claimant had refused to accept that position in bad faith.
Hearings were subsequently held before the WCJ, at which both parties appeared and entered evidence. By decision and order dated January 25, 2001, the WCJ found, in part relevant to the instant matter, that the job offered by Employer was not within Claimant's medical restrictions, due to the position's potential for required overtime in emergency situations. Additionally, the WCJ found that Claimant, who had accepted a disability pension from Employer following his work-related injury, would have suffered a loss of income had he accepted the offered position and had his pension suspended. The WCJ also found that no evidence had been presented that Employer notified Claimant of his ability to return to work as required by Section 306(b)(3) of the Act, 77 P.S. §512(3).
The WCJ concluded that Employer had failed to meet its burden of proving that alternative work was available to Claimant within his physical limitations, and that Employer had failed to notify Claimant pursuant to Section 306(b)(3). The WCJ also concluded that the position offered by Employer would have resulted in Claimant's loss of a qualitative benefit in the nature of a greater pension to which Claimant had contributed. The WCJ denied Employer's Petitions, and Employer timely appealed that order to the Board.
The Board, upon review of the record before the WCJ and the arguments of the parties, affirmed the WCJ's order. The Board concluded that the WCJ correctly held that the offered position was not within Claimant's medical restrictions, and that the WCJ had correctly denied Employer's Petitions based on substantial competent evidence of record. Employer now petitions this Court for review of the Board's order, dated May 28, 2002.
This Court's scope of review is limited to determining whether there has been a violation of constitutional rights, errors of law committed, or a violation of Board procedures, and whether necessary findings of fact are supported by substantial evidence. Lehigh County Vo-Tech School v. Workmen's Compensation Appeal Board (Wolfe), 539 Pa. 322, 652 A.2d 797 (1995).
Employer presents three issues in its petition for review, arguing that the Board erred in affirming the WCJ's findings and conclusions that: the offered position was unavailable due to Claimant's medical restrictions; Section 306(b)(3) notice was not given by Employer, and; the offered position was unavailable to Claimant because acceptance thereof would result in the loss of a qualitative benefit.
In Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 252, 532 A.2d 374, 380 (1987), our Supreme Court set forth the following procedure for the return to work of
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