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A split Pennsylvania Supreme Court, while bemoaning what it called bad public policy, has ruled that the state law providing full-salary compensation for police and firefighters injured on the job also bars them from keeping any workers’ compensation benefits — including those they could collect for jobs held outside their public safety work. In City of Erie v. Workers’ Compensation Appeal Board, a 7-2 majority concluded last month that the language of the state Heart and Lung Act permits police officers and firefighters to collect workers’ compensation benefits at the same time that they collect heart and lung benefits. However, the law also mandates that employees turn the workers’ compensation money over to the governmental entity for which they work. “We are not unmindful of the harshness of this result,” Justice Sandra Schultz Newman wrote in the majority opinion, which reversed the Commonwealth Court’s holding in the case. “Unfortunately, the compensation that firefighters and police officers earn is not commensurate with the importance of their jobs in our society and the dangers they encounter. Therefore, it is understandable that these individuals will seek concurrent employment to supplement their salaries.” While the majority noted its disapproval of the law as written, Newman wrote, “our hands are tied.” The Heart and Lung Act states that while an employee is receiving benefits under the act for temporary incapacity, “any workmen’s compensation, received or collected by any such employee for such period, shall be turned over” to the state employer that is providing the heart and lung benefits. “In light of the legislative directive that we construe the Heart and Lung Act strictly � we cannot see any way around the word ‘any,’” Newman said. Chief Justice Ralph J. Cappy wrote separately to concur with the majority’s conclusion that injured police and firefighters may collect workers’ compensation benefits in addition to heart and lung benefits. But Cappy, who was joined by Justice William H. Lamb, disagreed with the holding that the workers couldn’t keep workers’ compensation money that they received for wages they lost from the other jobs they had worked before disability. Richard Bordonaro, an attorney with Knox McLaughlin Gornall & Sennett in Erie, represented the city. “Even if the court disagrees with law, the court made it clear that it’s not its place to change the law,” Bordonaro said. Although this particular case amounted to a disagreement over a couple of thousand dollars, this “is a multimillion-dollar issue across the state,” Bordonaro said, “because there are thousands of police and firefighters who are eligible for heart and lung benefits and work other jobs as well.” Bordonaro said he had received calls from lawyers representing other Pennsylvania city governments, such as Philadelphia and Pittsburgh, who were wondering about the facts of his case and its implications. “There are a lot of cases like these,” Bordonaro said. The facts in this case involved Jeffrey Annunziata, an Erie police officer whose leg was broken in a motorcycle accident while he was on duty in 1998. At the time that he was working as a police officer, he was also working part time as a security guard for a Holiday Inn in Erie and as a maintenance man for an automated teller machine operator, according to the opinion. The city agreed to pay Annunziata his full weekly salary of $778 under the Heart and Lung Act and said he would receive those benefits in lieu of workers’ compensation benefits, according to the opinion. Annunziata recovered and returned to work three months after the accident. Later in the year, Annunziata filed a petition seeking workers’ compensation benefits from the city for earnings he lost at his two other jobs during his disability, according to the opinion. Including his wages at his other jobs, the city calculated his pre-accident weekly salary to be about $988, a difference of $210 from what the city had paid him each week during his disability. But unlike the Heart and Lung Act, state workers’ compensation law compensates injured workers for only a portion of their weekly salaries. In Annunziata’s case, he would have received $561 in workers’ compensation benefits for the $988 a week he was making before his accident, according to the opinion. The city informed Annunziata that it did not have an obligation to pay him workers’ compensation benefits because the amount it was already paying him in heart and lung benefits exceeded the amount he would have been entitled to for workers’ compensation. Because the Heart and Lung Act says recipients of its benefits have to turn over any money they receive under the Workers’ Compensation Act to the governmental entity employing the officer, the city said, Annunziata’s receipt of the heart and lung benefits foreclosed the possibility of his receiving concurrent workers’ compensation benefits, according to the opinion. The workers’ compensation judge also denied Annunziata’s claim for workers’ compensation benefits, siding with the city. But the Workers’ Compensation Appeal Board reversed the WCJ’s decision, saying that wage-loss benefits paid under the Workers’ Compensation Act as a result of concurrent employment “are not subject to the reimbursement requirement of the Heart and Lung Act.” On appeal, the Commonwealth Court affirmed the appeal board’s decision. In the dissenting portion of Cappy’s opinion, he contended that the Commonwealth Court’s analysis was the correct one and criticized the majority’s analysis. “By treating these police officers the same, regardless of their different employment situation, the majority’s approach fails to give effect to the Workers’ Compensation Act by depriving police officers who work multiple non-service jobs of any benefits for the loss of earnings from their concurrent employment,” Cappy wrote. Cappy pointed to the Statutory Construction Act, which he said requires the court to construe the Workers’ Compensation and the Heart and Lung acts together to “give effect to both of these statutory enactments, if possible.” It is possible here, he maintained, and was, in effect, what the Commonwealth Court had concluded. “Specifically, the Commonwealth Court’s approach requiring officers to return workers’ compensation benefits received for police employment to the employer, but allowing officers to retain benefits received for loss of concurrent employment, gives effect to both statutes, is consistent with the policies underlying both statutes, and is eminently fair,” Cappy wrote. “It gives no windfall to police officers and yet takes into account any concurrent employment and recognizes the loss in earning power regarding the other non-service-related employment due to the injury occurring while on duty as a police officer.” Lawyers for the Workers’ Compensation Appeal Board declined to comment last month.

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