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Roth v. Workers' Compensation Appeal Board3/12/1999
SUBMITTED: October 30, 1998
William P. Roth (Claimant) petitions for review of an order issued by the Workers' Compensation Appeal Board (Board) that affirmed a decision of the Workers' Compensation Judge (WCJ) granting the petition of Amore Management Company/Penn National Insurance (Employer) for suspension and modification of Claimant's benefits. Claimant questions whether the WCJ erred in granting Employer's suspension and modification petition because Employer did not meet the requirements set forth in Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987).
Claimant was employed as a live-in apartment manager/custodian at Lindenbrooke Apartments in Bethel Park when on October 13, 1995 he injured his lower back while carrying a heavy toolbox. Employer issued a notice of compensation payable listing Claimant's average weekly wage as $335.53, entitling him to a weekly benefit rate of $254.50. Prior to litigation, Employer filed a corrected statement of wages increasing Claimant's average weekly wage to $451.78 and increasing his benefit rate to $301.18.
On February 26, 1996, Employer filed a petition to suspend and modify Claimant's benefits, stating that as of January 19, 1996 Claimant was only partially disabled and capable of performing work within his physical capabilities. Claimant filed a petition for modification and review on March 28, 1996 and sought to increase his average weekly wage calculation. The WCJ consolidated the petitions. Employer voluntarily increased Claimant's average weekly wage to $479.88 and his benefit rate to $319.92 after Claimant filed his petition. However, approximately two months after Claimant's injury, Employer decided that because Claimant's average weekly wage included the value of his rent and utilities, he should pay $600 per month in rent retroactive to the date of his injury in October 1995. When Claimant refused to pay rent, Employer initiated eviction proceedings, and Claimant then moved himself and his family from the premises in February 1996.
Employer presented the testimony of Dr. David Steinberg, who is board certified in physical medicine and rehabilitation. Dr. Steinberg examined Claimant on January 11, 1996 and opined that he could return to full-time work in a medium-duty capacity. Claimant presented no medical evidence to refute this opinion. On January 19 and February 9, 1996, Employer offered work to Claimant as a live-in maintenance person on a modified basis at Lindenbrooke. On June 10 Employer offered work to Claimant as an on-site, live-in manager on a modified basis at Employer's Pennwood Square site in Wilkinsburg, and the offer was extended again at the WCJ hearing in July 1996. Dr. Steinberg reviewed these job offerings and opined that they were within Claimant's physical limitations. At the hearing Employer stated that it would accommodate Claimant's physical limitations.
Claimant refused the positions. He testified that the job offers by Employer were impractical because they required him to live at the complexes, and he had signed a one-year lease on an apartment and moved to a borough beyond the normal commuting distance of Bethel Park. The WCJ credited the testimony of Dr. Steinberg and discredited the testimony of Claimant. Notwithstanding these credibility determinations, the WCJ noted that Employer sought back rent from October 1995 and found that it was "likely overreaching, or at least engaging in 'hardball' in demanding back rent to October 1995," although Claimant was not excused from returning to work. WCJ Decision, p. 6. The WCJ concluded that Employer met its burden under Kachinski and that Claimant acted in bad faith by
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