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CITY SCRANTON v. WORKMEN'S COMPENSATION APPEAL BOARD (WALSH) (06/26/89)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 26, 1989.

CITY OF SCRANTON, PETITIONER,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (WALSH), RESPONDENTS

COUNSEL

Gregory D. Geiss, Dougherty, Mundy, Leventhal & Price, Honesdale, for petitioner.

George W. Teets, Moscow, for respondents.

Crumlish, Jr., President Judge, Colins, J., and Narick, Senior Judge.

Author: Narick

[ 127 Pa. Commw. Page 90]

The City of Scranton (Employer) has appealed from a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision denying Employer's petition for modification with respect to Donald Walsh (Claimant). We affirm.

Claimant was employed as a fire fighter for Employer. On February 15, 1986, while in the course of his employment, Claimant sustained a work-related injury and thereafter received his full salary of $504.04 per week in lieu of compensation.*fn1 Claimant received his full salary until December 26, 1986, the date whereby he retired and went on pension. At this time, he also began receiving workmen's compensation benefits at a rate of $336.00 per week. During the period July 31, 1986 through October 9, 1986, while Claimant was still receiving wages in lieu of compensation, Employer provided Claimant with referrals to then open jobs. Claimant did not pursue these job referrals because he was advised by Employer's Fire Superintendent that if he accepted employment while on sick leave, he would lose his salary.

The referee denied the petition for modification on the basis Employer failed to establish as a matter of law that a

[ 127 Pa. Commw. Page 91]

    job was available to Claimant because the fact Claimant would lose his salary if he accepted these other jobs rendered them unacceptable. The Board affirmed the referee.*fn2

On appeal, the sole question presented for our resolution is whether the Board erred in affirming the referee's denial of Employer's modification petition.*fn3

Apposite to the matter herein is this Court's recent decision in City of Scranton v. Workmen's Compensation Appeal Board (Stone), 123 Pa. Commonwealth Ct. 310, 552 A.2d 1183 (1989). In Stone, the claimant, while receiving wages in lieu of compensation, was provided with referrals to then open jobs. In Stone, this Court stated:

Notwithstanding the arguments presented by both parties herein we believe the referee and Board acted properly as a matter of law in denying Employer's petition for modification of benefits. In the spring and summer of 1986 at the time these job referrals were brought to Claimant's attention, he was not receiving workmen's compensation benefits. Rather, Claimant was receiving wages in lieu of compensation. Thus, there could be no modification of benefits until Claimant actually began receiving benefits. Stated another way, there could be no modification of benefits until on or after September 27, 1986. Because Employer failed to show that these jobs were available on or after September 27, 1986, the modification petition was properly denied.

Id., 123 Pa. Commonwealth Ct. at 312-313, 552 A.2d at 1184 (footnote omitted) (emphasis in original).

[ 127 Pa. Commw. Page 92]

Likewise, in the instant matter, Claimant was notified of the job referrals while still receiving wages in lieu of compensation. His benefits could not be modified until he actually began receiving workmen's compensation benefits -- on or after December 26, 1986. In that Employer failed to show that these jobs were available at the time Claimant began receiving workmen's compensation on December 26, 1986, the modification petition was properly denied.*fn4

Although Employer acknowledges our decision in Stone, it has requested that we reconsider our decision therein. However, we decline to accept Employer's contentions herein for the same reasons we stated in Stone.

The decision of the Board is affirmed.

Order

AND NOW, this 26th day of June, 1989, the order of the Workmen's Compensation Appeal Board in the above-captioned matter is hereby affirmed.


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