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Camp v. Workers' Compensation Appeal Board2/28/2000
SUBMITTED: December 3, 1999
Claimant Dennis Camp petitions for review of the August 2, 1999 order of the Workers' Compensation Appeal Board (Board) affirming the order of Workers' Compensation Judge (WCJ) Thomas G. Devlin granting Employer City of Philadelphia's modification petition on the grounds that there was a job available within Claimant's physical limitations. This case presents the issue of whether another job with the City was actually available to Claimant because his pension status and benefits would change if he returned to work with the City. For the reasons that follow, we vacate the Board's order and remand the case for further findings of fact and conclusions of law.
On November 13, 1985, Claimant sustained a work-related injury to his back while employed by the City's fire department as a battalion chief. A notice of compensation was issued setting his benefits at the rate of $347.00 per week, based on an average weekly wage of $520.50.
On June 10, 1996, the City filed a modification petition therein alleging that, as of March 18, 1996, Claimant failed to return to work with the City at a modified job made available to him and within the restrictions set by board- certified surgeon Dr. Gabriel Rosales. In support of its petition, the City presented the deposition testimony of Peter J. Lento, a certified rehabilitation counselor and a certified case manager.
In order to determine what types of positions would be suitable for Claimant, Mr. Lento performed a transferable skill analysis of Claimant, which Lento considered along with the restrictions set by Dr. Rosales. Although Mr. Lento identified an appropriate job opportunity, that of fire communications dispatcher, Claimant failed to apply for that position.
In addition, the City presented the deposition testimony of Dr. Rosales, who examined Claimant on November 21, 1995. Dr. Rosales testified that, in his opinion, Claimant would not be able to return to work at his former position of battalion chief, but that he would be able to do modified work without repetitive or heavy lifting. Further, Dr. Rosales testified that Claimant could perform the job of fire communications dispatcher.
In opposition to the modification petition, Claimant presented the deposition testimony of Dr. Joseph J. Toland, a board-certified orthopedic surgeon. Dr. Toland first examined Claimant in February of 1998 and diagnosed him as having herniated cervical and lumbar disks with chronic lumbosacral spasm. Dr. Toland opined that Claimant would never be able to return to his former position because his condition will never improve to that extent. Even though Dr. Toland concluded that Claimant requires a sedentary position, the doctor opined that Claimant could perform the job of dispatcher if he were permitted to get up and move around occasionally.
The WCJ accepted as credible and persuasive the testimony of Drs. Rosales and Toland. Specifically, the WCJ found that the doctors were credible in their determinations that Claimant would be unable to return to his former position, but would be capable of performing the job of fire communications dispatcher. (Finding of Fact No. 10.)
In a May 29, 1997 deposition, Claimant testified that he feels that he would be unable to perform the job of dispatcher due to his inability to sit for any extended period of time. The WCJ found that "Claimant's testimony as to his inability to work even a sedentary position is not accepted as being credible or persuasive." (Finding of Fact No. 11.)
In addition, the WCJ found that the fire communications dispatcher position was available to Claimant and that he failed to act on
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