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Lardon v. Workers' Compensation Appeal Board2/13/2002
Submitted: October 26, 2001
James Lardon (Claimant) petitions for review from an order of the Workers' Compensation Appeal Board (Board) which affirmed the decision of a Workers' Compensation Judge (WCJ) granting the modification petition and dismissing the suspension petition filed by the City of Philadelphia (Employer), and denying the modification petition filed by Claimant. We affirm.
On July 27, 1987, Claimant sustained an injury in the nature of chronic obstructive lung disease - asthmatic bronchitis - due to 21 years of exposure to heat, smoke, gases, and fumes while in the course and scope of his employment as a firefighter with Employer. Pursuant to a supplemental agreement, the parties agreed that as of August 1, 1987, Claimant would receive partial disability benefits of $361 per week based upon an average weekly wage of $550. The supplemental agreement acknowledged that Claimant retains an earning capacity of $5.00 a week.
On May 28, 1996, Employer filed a modification/suspension petition requesting a modification of Claimant's benefits as of May 9, 1996. In the petition, Employer alleged that Claimant exhibited bad faith in refusing an offer of employment within his medical restrictions. Claimant filed an answer denying the material allegations contained therein. On November 18, 1996, Claimant filed a modification petition requesting total disability benefits alleging that as of September 25, 1996, his disability changed from partial to total. Hearings before a WCJ then ensued.
Before the WCJ, in support of its modification/suspension petition, Employer presented the testimony of Dr. Alan Goldberg and Stephen Davis. In opposition thereto and in support of his modification petition, Claimant testified and presented the testimony of Dr. Jonathan L. Gelfand. The WCJ summarized the relevant testimony and evidence as follows:
Dr. Goldberg examined Claimant on February 14, 1996. Although the examination revealed residuals of Claimant's work-related condition, Dr. Goldberg found Claimant's lungs clear, his respiration unlabored, his heart in regular sinus rhythm and all extremities free of cyanosis, edema, and clubbing. The pulmonary function test showed only mild airflow obstruction. Dr. Goldberg testified that Claimant's asthma was under reasonable control, allowing him to function relatively normally. While recognizing that Claimant's condition was deemed "not curable" and of such significance as to preclude his return to pre-injury duties as a firefighter, Dr. Goldberg found him capable of light-duty work and released Claimant to perform the position of fire communications dispatcher.
Mr. Davis, a vocational disability specialist, testified that the fire communications dispatcher position requires an individual to respond to incoming fire calls at a computer console and dispatch appropriate help. Mr. Davis testified that the position was vocationally appropriate for Claimant and within the physical restrictions imposed by Dr. Goldberg. Mr. Davis forwarded a letter to Claimant offering him the fire communications dispatcher position commencing May 9, 1996 at a yearly salary of $21,308. Mr. Davis testified that Claimant did not respond to the offer. On cross-examination, Mr. Davis testified that Claimant would not receive his pension payments during his period of re-employment.
Claimant testified that he receives a city pension based upon his age and years of service. Claimant testified that he experiences shortness of breath up to three times per week, but that the problem has not worsened over time.
Claimant testified that he received notice of the job offer as a fire communications dispatcher, but
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