Lardon v. Workers' Compensation Appeal Board

791 A.2d 1262, 2002 Pa. Commw. LEXIS 81
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 13, 2002
StatusPublished

This text of 791 A.2d 1262 (Lardon v. Workers' Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lardon v. Workers' Compensation Appeal Board, 791 A.2d 1262, 2002 Pa. Commw. LEXIS 81 (Pa. Ct. App. 2002).

Opinion

KELLEY, Senior Judge.

James Lardón (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 cyano-sis, 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.

[1265]*1265Claimant 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 did not appear for the position because he did not believe that he could perform a full time job.

Dr. Gelfand examined Claimant on September 25,1996. Based upon his examination, Dr. Gelfand diagnosed Claimant with asthma and bilateral pleural thickening caused by exposure to asbestos. Dr. Gel-fand testified that Claimant’s return to work in the dispatcher position was inadvisable until such time that the work site was established as smoke and fume-free. Dr. Gelfand also testified that the requirement of the position that Claimant speak frequently and possibly for extended periods of time was a potential trigger for asthma attacks.

Based upon the testimony and evidence presented, the WCJ found Dr. Goldberg’s testimony of Claimant’s retained physical ability to be credible and more persuasive than the conclusions offered by Dr. Gel-fand. The WCJ further found that the position of fire communications dispatcher actually existed, was available when offered to Claimant and was well within Claimant’s retained physical and vocational capacity. Claimant in bad faith failed to accept the position.

The WCJ concluded that Employer met its burden of showing that it made a suitable job available to Claimant, but that Claimant did not exhibit good faith in failing to accept it. Accordingly, the WCJ granted Employer’s modification petition, dismissed Employer’s suspension petition and dismissed Claimant’s modification petition. Claimant appealed the WCJ’s decision to the Board, which affirmed. Claimant now petitions for review with this Court.2 Claimant presents the following issues for our review:

1. Whether an employer may modify workers’ compensation benefits after offering to the claimant a position, which if accepted, would result in the loss of a substantial benefit to the claimant in the nature of the pension he is receiving from the same employer offering him the position.
2. Whether an employer may modify workers’ compensation benefits for a claimant suffering from a disease, which the uncontroverted medical evidence shows is an occupational disease for which there is no cure, and is not reversible.

Claimant contends that the WCJ erred in granting Employer’s modification petition on the basis of suitable employment being offered, where the acceptance of such employment would result in the loss of Claimant’s pension benefits. We disagree.

In seeking a modification of compensation benefits, “the employer has the burden of showing that the disability has ended or has been reduced and that work is available to the claimant and the claimant is capable of doing such work.” Celio v. Workmen’s Compensation Appeal Board (Canonsburg General Hospital), 109 Pa.Cmwlth.442, 531 A.2d 552 (1987), petition for allowance of appeal denied, [1266]*1266518 Pa. 628, 541 A.2d 1139 (1988). In Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987), our Supreme Court set forth the following four criteria pursuant to which a modification petition may be granted:

1. The employer who seeks to modify a claimant’s benefits on the basis that he has recovered some or all of his ability must first produce medical evidence of a change in condition.
2. The employer must then produce evidence of a referral (or referrals) to a then open job (or jobs), which fits in the occupational category for which the claimant has been given medical clearance, e.g., light work, sedentary work, etc.
3.

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Bluebook (online)
791 A.2d 1262, 2002 Pa. Commw. LEXIS 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lardon-v-workers-compensation-appeal-board-pacommwct-2002.