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O'Brien v. Workers' Compensation Appeal Board

Modification of disability benefits affirmed because light duty position offered by employer was "actually available" for purpose of determining employer's entitlement to modification even though pension benefits would be suspended during employee's re-employment in offered position.

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Submitted: March 9, 2001

William O’Brien (Claimant) appeals from an order of the Workers’ Compensation Appeal Board (Board) that affirmed the decision of the workers’ compensation judge (WCJ) modifying his disability benefits. The issue on appeal is whether the light-duty position offered by the City of Philadelphia (Employer) was “actually available” for the purpose of determining Employer’s entitlement to modify Claimant’s disability benefits, where payment of his pension benefits would be suspended during his “re-employment” with Employer in the offered position. We affirm.

The following relevant facts are undisputed. Claimant was employed as a firefighter in Employer’s Fire Department since January 1969. On February 4, 1989, Claimant sustained a work-related injury to his left thigh and lower left leg and received regular wages in lieu of temporary total disability benefits until August 29, 1989 pursuant to a notice of compensation payable. Claimant then began receiving maximum total disability benefits in the amount of $399 based on his average weekly wage in excess of $598.50. In the supplemental agreement executed in March 1990, Employer acknowledged that Claimant’s work injury should include a lumbar strain and an injury to his left hip. Claimant subsequently retired from the firefighter position and began receiving pension benefits in the amount of approximately $20,000 a year, in addition to the maximum total disability benefits.

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