The opinion of the court was delivered by: Senior Judge Flaherty
Submitted: January 8, 2010
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JIM FLAHERTY, Senior Judge
City of Philadelphia (Employer) petitions for review from an order of the Workers' Compensation Appeal Board (Board) that granted a rehearing request filed by Robert Harvey (Claimant) and modified the decision of Workers' Compensation Judge (WCJ) Scott Olin. We affirm.
In adjudicating this appeal, this Court must consider the language set forth in both Section 204(a) of the Pennsylvania Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §71(a), and Section 22-401(4)(a) Philadelphia Code.
Section 204(a) of the Act states in relevant part: The severance benefits paid by the employer directly liable for the payment of compensation and the benefits from a pension plan to the extent funded by the employer directly liable for the payment of compensation which are received by an employe shall also be credited against the amount of the award made under sections 108 and 306.[*fn1 ] (Emphasis added).
In addition, Philadelphia Code §22-401(4)(a) (relating to disability pension benefit offsets) provides:
(a) If the member receives or is entitled to receive, for and during a period of disability, compensation from the City Treasury of the City, workers' compensation benefits or payments in the nature of workers' compensation benefits from any source, such disability retirement benefits shall be reduced by the amount of such compensation, benefits or payments for the period such compensation, benefits or payments are paid or payable even though all or part of the amount so payable may be wholly or partially commuted.... (Emphasis added).
Philadelphia Code § 22-401(4)(a).
Claimant sustained back and shoulder injuries in the course and scope of his employment. Pursuant to a decision of WCJ Donald Poorman dated September 8, 2000, Employer, inter alia, was directed to pay Claimant total disability benefits from September 3, 1997 and ongoing.
Claimant was found to have an average weekly wage of $880.65 with a corresponding benefit rate of $527.00 pr week.
Claimant later filed Reinstatement, Review, and Penalty Petitions alleging that Employer failed to make payment consistent with WCJ Poorman's Decision. Specifically, Claimant alleged that Employer stopped paying workers' compensation benefits following the commencement of his receipt of disability pension benefits as of September 22, 2001.
WCJ Susan E. Kelley granted Claimant's Petitions. She instructed that Claimant's workers' compensation benefits be reinstated as of October 1, 2001. In ruling as she did, WCJ Kelley found that Employer failed to supply Claimant with Notice of Workers' Compensation Benefit Offset, LIBC-761, prior to discontinuing his workers' compensation benefits in light of his receipt of a pension. WCJ Kelley further found Employer ...