City of Philadelphia v. WCAB (WELSCH)
| Decision Date | 14 April 1999 |
| Citation | 728 A.2d 428 |
| Parties | CITY OF PHILADELPHIA, Petitioner, v. WORKERS' COMPENSATION APPEAL BOARD (WELSCH), Respondent. |
| Court | Pennsylvania Commonwealth Court |
Charlene Stewart Barnaba, Philadelphia, for petitioner.
Richard R. Di Stefano, Philadelphia, for respondent.
Before DOYLE, J., PELLEGRINI, J., and McCLOSKEY, Senior Judge.
The City of Philadelphia (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) reversing the decision of the Workers' Compensation Judge (WCJ) ordering Joseph Welsch (Claimant) to undergo a physical examination pursuant to Section 314 of the Workers' Compensation Act (Act)1.
In 1990, Claimant, who worked as a firefighter for Employer, was awarded total disability benefits by a WCJ for occupational heart and lung disease caused by work-related exposure to heat, smoke, gas and fumes. Because Claimant had not been examined by one of its doctors in over eight years, Employer requested in July 1996 that Claimant attend two independent medical examinations; one with a pulmonary specialist on September 18, 1996, and a second with a cardiologist on September 19, 1996. When Claimant refused to attend either of those appointments, Employer filed a petition to compel a physical examination alleging that its request was reasonable and necessary because Claimant had not been examined by a cardiologist chosen by Employer since January 1, 1988, and that he also had not been examined by a pulmonary specialist of its choosing since May 31, 1989. Claimant filed an answer to the petition denying that Employer was entitled to any additional examinations contending that because he suffered from occupational disease to his lungs and heart, Employer was precluded from seeking a physical examination under our Supreme Court's decision in Hebden v. Workmen's Compensation Appeal Board (Bethenergy Mines), 534 Pa. 327, 632 A.2d 1302 (1993),2 unless Employer could introduce evidence that his condition was reversible.
Following a hearing, the WCJ granted Employer's petition finding the request reasonable and necessary because Employer had last requested a pulmonary exam and a cardiac exam eight and nine years ago, respectively. The WCJ also found that Hebden did not apply because there had been no previous adjudication as to the type of occupational disease suffered by Claimant or whether that condition was irreversible, and that the previous WCJ had awarded total disability benefits for Claimant's "occupational disease of heart and lungs" solely based on Employer's inability to rebut the statutory presumption that his disease was work-related.
Claimant appealed to the Board contending that because all occupational diseases are irreversible, Employer is barred from seeking another physical examination under Hebden. Agreeing with Claimant, the Board reversed, holding that Hebden did indeed prevent Employer from seeking an additional physical examination of Claimant. The Board stated that because Employer failed to introduce any evidence that Claimant's condition was reversible, any physical examination would be an impermissible attempt to relitigate Claimant's occupational disease. This appeal by Employer followed.3
The sole issue on appeal is whether the Board erred in concluding that Employer's petition is barred because there was no evidence presented by Employer to show that Claimant's occupational disease was reversible. Employer contends that under our recent decision in McGonigal v. Workers' Compensation Appeal Board (City of Philadelphia), 713 A.2d 692 (Pa.Cmwlth.1998), Claimant's occupational heart and lung disease is not to be automatically considered irreversible, and even if it is irreversible, it should still be entitled to a physical examination to determine whether there is suitable alternative work available to Claimant. We agree.
In McGonigal, the claimant, who was a firefighter for the City of Philadelphia, filed a petition under Section 108(o) of the Act, 77 P.S. § 27.1(o),4 alleging that he was permanently disabled as a result of his firefighting duties. He was awarded total disability benefits, even though the referee found that he was only partially disabled, because the employer failed to show that there was alternate employment available within the claimant's physical capacities. Six years later, after the claimant failed to attend an appointment to undergo a physical examination scheduled by the employer, the employer filed a petition to compel a physical examination under Section 314 of the Act. In reply to the employer's petition, the claimant raised Hebden as barring the employer from seeking a physical examination. The WCJ granted the petition finding that the mere assertion that the claimant suffered from an occupational disease was insufficient to show that his disease was irreversible in nature and, therefore, Hebden did not preclude the employer from having the claimant examined. After the Board affirmed, the claimant appealed to this Court again contending that Hebden barred the employer from seeking a physical examination because he suffered from an occupational disease as a result of firefighting which is, by its nature, irreversible.
In holding that Hebden did not bar the employer's request for a physical examination, we stated:
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McCormick v. WCAB (PHILADELPHIA)
...the presence of an irreversible disease does not mean that no alternate work is suitable.); See also City of Philadelphia v. Workers' Compensation Appeal Board (Welsch), 728 A.2d 428 (Pa. Cmwlth.1999) ("Even if Claimant's occupational disease is irreversible, an employer is entitled to an e......
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Milici v. WCAB (CITY OF PHILADELPHIA)
...disease does not mean that no alternative work is suitable." McGonigal, 713 A.2d at 694. In City of Philadelphia v. Workers' Compensation Appeal Board (Welsch), 728 A.2d 428 (Pa.Cmwlth.1999), we applied McGonigal in another medical examination case involving a firefighter as the claimant. O......