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City of Pittsburgh and Upmc Benefits Management Services, Inc v. Workers' Compensation Appeal Board (Leonard

January 21, 2011

CITY OF PITTSBURGH AND UPMC BENEFITS MANAGEMENT SERVICES, INC., PETITIONERS
v.
WORKERS' COMPENSATION APPEAL BOARD (LEONARD), RESPONDENT



The opinion of the court was delivered by: P. Kevin Brobson, Judge

ORDER

AND NOW, this 20th day of April, 2011, upon consideration of the Applications to Report Unreported Opinion said Applications are granted. It is hereby ordered that the opinion filed January 21, 2011, shall be designated

OPINION rather than MEMORANDUM OPINION, and it shall be reported.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Pittsburgh and UPMC Benefits : Management Services, Inc., : Petitioners : v. Workers' Compensation Appeal : Board (Leonard), : Respondent :

No. 650 C.D. 2010

Submitted: September 10, 2010

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE BROBSON

City of Pittsburgh (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board), dated March 17, 2010, which affirmed the decision and order of a Workers' Compensation Judge (WCJ). The WCJ granted in part and denied in part Employer's Petition to Suspend Compensation Benefits on the grounds that Mark Leonard (Claimant) voluntarily removed himself from the workforce. We affirm the Board's order.

Claimant began working for Employer as a police officer on December 3, 1984. On August 10, 1994, Claimant sustained a work-related injury to his right forearm and right knee in the course and scope of his employment. Claimant returned to work after approximately one year and continued to work full duty until Claimant aggravated the injury to his right knee in November 2004.

Thereafter, Claimant received Heart and Lung Act*fn1 benefits for the period of December 5, 2004 through January 19, 2006. By Notice of Compensation Payable (NCP) issued February 6, 2006, Claimant's Heart and Lung Act benefits were converted to workers' compensation benefits as of January 20, 2006. Pursuant to the NCP, Claimant received benefits in the amount of $493.00 per week based on an average weekly wage of $761.94.

On April 1, 2006, Claimant received a service-connected disability pension from Employer. Claimant was not working light duty or otherwise at the time. On July 19, 2007, Jon B. Tucker, M.D., performed an independent medical evaluation of Claimant on behalf of Employer. Dr. Tucker opined that Claimant was capable of performing full-time light-duty and part-time medium-duty work. Based on Dr. Tucker's recommendations, Employer sent Claimant a Notice of Ability to Return to Work on August 16, 2007. Shortly thereafter, Employer filed a Petition to Suspend Compensation Benefits on September 4, 2007, arguing:

The Claimant has voluntarily removed himself from the work force as he is capable of light or modified work within the general labor market/work force and yet the Claimant has not sought employment within these physical restrictions in the general labor market/work force which the Claimant is physically capable of performing and thus [Employer] is entitled to suspension of the Claimant's workers' . . . compensation benefits.

(Reproduced Record (R.R.) at 1a, 3a.)*fn2 Claimant denied Employer's material allegations by ...


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