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Conaway v. Workers' Compensation Appeal Board6/5/2002
Robert Conaway (Claimant) petitions for review from an order of the Workers' Compensation Appeal Board (Board) which affirmed the decision of the Workers' Compensation Judge (WCJ) granting the City of Philadelphia's (Employer) Petition for Review of Compensation Benefits Offset pursuant to Section 314 of The Pennsylvania Workers' Compensation Act (Act). We affirm.
The complicated history of this case is as follows. Claimant was employed as a firefighter by Employer. Claimant filed a claim petition and, by decision issued by WCJ Troilo, was awarded total disability compensation as of February 3, 1986 for coronary occlusive heart disease and chronic obstructive pulmonary disease resulting from Claimant's long term employment as a firefighter.
On March 4, 1996, Employer filed a Petition for Physical Examination requesting that Claimant be ordered to submit to a physical examination. In the petition, Employer alleged that Claimant had failed to submit to a physical examination which was scheduled on February 12, 1996. The Petition for Physical Examination was heard by WCJ Simmons. By decision dated August 12, 1996, WCJ Simmons granted the Petition for Physical Examination and ordered the scheduling of a physical examination for Claimant. Claimant filed an appeal with the Board, but did not request supersedeas or a release from the obligation to undergo a physical examination. By decision dated November 13, 1998, the Board affirmed. Claimant petitioned for review with this Court, which affirmed by decision dated April 28, 1999. Claimant then filed a petition for allowance of appeal, which the Supreme Court denied on October 21, 1999.
During the pendency of Claimant's appeal, Employer scheduled a physical examination on June 9, 1997 for Claimant, which Claimant failed to attend. In response, Employer filed a Suspension/Forfeiture Petition on September 2, 1997. The Suspension/Forfeiture Petition was assigned to WCJ Snyder. On October 20, 1998, WCJ Snyder issued an interlocutory order staying Employer's Suspension/Forfeiture Petition pending a final order from the Board on Claimant's appeal from WCJ Simmons' August 12, 1996 order. On September 24, 1999, WCJ Snyder granted Employer's Suspension/Forfeiture Petition and ordered the suspension of Claimant's benefits as of August 27, 1997 for failure to attend the June 9, 1997 physical examination as ordered by WCJ Simmons. From this decision, Claimant appealed to the Board. By decision dated June 27, 2001, the Board affirmed. No subsequent appeal was taken from this decision.
On October 27, 1999, Employer filed a Petition for Review of Compensation Benefits Offset against Claimant asserting that Employer is entitled to a credit against future benefits for payments made during the period of suspension. Claimant filed a timely answer denying the material allegations contained therein. Hearings before WCJ Weinberg then ensued.
Based upon the evidence presented, WCJ Weinberg found that on September 24, 1999, WCJ Snyder issued a decision suspending Claimant's wage loss benefits as of August 29, 1997 for Claimant's failure to attend the June 9, 1997 physical examination. Based upon this determination, Employer suspended payment of benefits effective September 24, 1999. Claimant attended a physical examination on October 27, 1999. Claimant's benefits were reinstated effective the date of the examination. Employer paid Claimant full workers' compensation benefits during the period of suspension from August 29, 1997 through September 24, 1999 and petitioned for the right to a credit against future benefits to be paid to Claimant in an amount equal to those benefits paid during the period of suspension.
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