Milici v. WCAB (CITY OF PHILADELPHIA)

• Decision Date: 18 July 2001
• Citation: 778 A.2d 1282
• Parties: Joseph MILICI, Petitioner, v. WORKERS' COMPENSATION APPEAL BOARD (CITY OF PHILADELPHIA), Respondent.
• Court: Pennsylvania Commonwealth Court

778 A.2d 1282

Joseph MILICI, Petitioner, v. WORKERS' COMPENSATION APPEAL BOARD (CITY OF PHILADELPHIA), Respondent.

Commonwealth Court of Pennsylvania.

Submitted March 9, 2001.

Decided July 18, 2001.

Richard R. Di Stefano, Philadelphia, for petitioner.

Marianne Henry, Philadelphia, for respondent.

Before SMITH, Judge, FRIEDMAN, Judge, McCLOSKEY, Senior Judge. FRIEDMAN, Judge.

Joseph Milici (Claimant) petitions for review of an October 11, 2000 order of the Workers' Compensation Appeal Board (WCAB) affirming the decision of the workers' compensation judge (WCJ) to modify Claimant's benefits as of March 10, 1997, based on Claimant's bad faith rejection of an existing and available job offered by Employer.¹ We affirm.

Claimant was employed by the City of Philadelphia (Employer) as a firefighter when, on January 20, 1988, he became totally disabled as a result of coronary artery disease and obstructive lung disease from work-related stress and his inhalation of toxic irritants on the job. (WCJ's Findings of Fact of 6/6/90, No. 4; R.R. at 203a.) Claimant filed a petition for total disability benefits pursuant to section 108(o) of the Workers' Compensation Act (Act),² which the WCJ granted in a June 6, 1990 order at a rate of $376.36 per week beginning January 21, 1988. (WCJ's Conclusions of Law of 6/6/90, No. 2; R.R. at 204a.)

In March 1997, Employer filed a Petition to Modify Compensation Benefits (modification petition) on the basis that Claimant acted in bad faith in failing to accept alternate employment within his physical capabilities. (R.R. at 1a-2a.) Claimant filed an answer denying the allegations. (R.R. at 3a.) Employer filed a request for supersedeas, which was denied by the WCJ in an October 23, 1997 interlocutory order. (WCJ's decision of 5/28/99 at 2.) Hearings on the modification petition were held before the WCJ from October 1997 through July 1998. (WCJ's decision of 5/28/99 at 2.)

In support of the modification petition, Employer submitted the deposition testimony of two medical experts: Subrahmanyam Chivukula, M.D., board-certified in internal and critical care medicine, cardiology, and nuclear cardiology; and Alan Goldberg, M.D., board-certified in internal, pulmonary and critical care medicine. (WCJ's Findings of Fact of 5/28/99, Nos. 2-4; R.R. at 8a, 59a.)

The WCJ accepted Dr. Chivukula's testimony that, although Claimant had a history of cardiac pathology which lead to a coronary artery bypass, a physical examination of Claimant revealed normal blood pressure, clear lungs and an "essentially unremarkable" cardiac status. These findings led Dr. Chivukula to conclude that the position of fire communications dispatcher offered by Employer was within Claimant's physical capabilities. (WCJ's Findings of Fact of 5/28/99, No. 3.)

The WCJ also credited Dr. Goldberg's testimony that, although Claimant indicated that he was not doing well emotionally and had shortness of breath, an examination revealed that Claimant's chest was clear and his heart and extremities were normal. The WCJ accepted Dr. Goldberg's finding that Claimant had no active lung disease at the time of the examination. Dr. Goldberg acknowledged that obstructive lung disease is incurable, but he determined that it was not detectable in Claimant during the examination, and any shortness of breath was probably due to Claimant's cardiovascular deconditioning. Dr. Goldberg released Claimant to go back to work in a full-time capacity and approved the fire communications dispatcher position. (WCJ's Findings of Fact of 5/28/99, No. 4.)

Employer also submitted the deposition testimony of Rabia Rosen, a rehabilitation counselor; Cynthia Hawthorne, the former assistant personnel officer for Employer's fire department; and James Kidwell, a pension program administrator for Employer. (WCJ's Findings of Fact of 5/28/99, Nos. 2, 5-7.) The WCJ accepted Rosen's testimony that she met with Claimant and sent him a letter regarding the fire communications dispatcher position. The job, which paid a yearly salary of $22,386, required an individual to operate the telephone switchboard and radio transmitter, determine the nature of emergency calls and arrange for the dispatch of appropriate emergency assistance. The WCJ found credible Rosen's testimony that Claimant attended an interview and was offered the position, but Claimant did not appear for the first day of work scheduled for March 10, 1997. (WCJ's Findings of Fact of 5/28/99, No. 5.) The WCJ also accepted Hawthorne's testimony that she interviewed Claimant and offered him the fire communications dispatcher position, but Claimant did not accept the position. (WCJ's Findings of Fact of 5/28/99, No. 6.)

Finally, the WCJ accepted Kidwell's testimony regarding the pension rights of Employer's employees upon their return to work. Kidwell testified that if a fire employee receiving a service-connected pension is rehired by Employer in a municipal position, the pension benefits are suspended during the period of reemployment; all of the credit service from the former position would roll into the municipal plan and the subsequent retirement benefit would be calculated under the municipal plan formula. Kidwell acknowledged that if a person returned to the work force with someone other than Employer, the pension benefits would not be suspended. (WCJ's Findings of Fact of 5/28/99, No. 7.)

Claimant appeared and testified on his own behalf in defense of the modification petition. (WCJ's Findings of Fact of 5/28/99, No. 9.) Claimant testified that he receives a retirement pension of $15,000 per year from Employer, based upon his age and years of service. Claimant indicated he did not accept the fire communications dispatcher position because he could not handle the stress of the job. (WCJ's Findings of Fact of 5/28/99, No. 10.) Claimant also argued that he would lose his right to his pension if he were to resume working for Employer. (WCJ's Decision of 5/28/99 at 7.)

In a May 28, 1999 order, the WCJ granted Employer's modification petition, concluding that Employer's offer to Claimant on March 10, 1997 of the fire communications dispatcher position constituted an offer of existing and available work within Claimant's physical and vocational capacity and that Claimant failed to establish that he followed through with the job offer in good faith. (WCJ's Conclusions of Law of 5/28/99, Nos. 3-4.) Thus, the WCJ concluded that, as of March 10, 1997, Employer's obligation to pay partial disability benefits was reduced to $89.34 per week. (WCJ's Conclusions of Law of 5/28/99, No. 5.)

Claimant appealed to the WCAB, arguing that numerous findings were not supported by substantial evidence. Claimant also asserted that the WCJ erred in determining that Claimant's disability had improved to the extent that he was able to work, pointing out that both doctors testified that Claimant's occupational diseases were incurable. The WCAB affirmed the WCJ's decision to grant Employer's modification petition based on Claimant's bad faith rejection of an existing and available job offered by Employer. Applying the test articulated in Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 252, 532 A.2d 374, 380 (1987),³ the WCAB determined that, because the deferral of Claimant's pension was not a qualitative loss sufficient to render the position unavailable, there was sufficient evidence that Employer satisfied the first two prongs of the Kachinski test. The WCAB then concluded that Claimant failed to establish that he had followed through with the job referral in good faith where the medical experts testified that Claimant was capable of performing the job duties for a fire communications dispatcher.

Claimant now petitions this court for review of the WCAB's order,⁴ arguing first that, because Employer's medical experts testified that Claimant's coronary artery disease and obstructive lung disease are not curable, the supreme court's decision in Hebden v. Workmen's Compensation Appeal Board (Bethenergy Mines, Inc.), 534 Pa. 327, 632 A.2d 1302, (1993) applies⁵ and precludes modification of Claimant's workers' compensation benefits. We disagree.

In this case, as in Hebden, Claimant's occupational diseases are irreversible;⁶ however, unlike the case in Hebden, where the employer attempted to challenge the diagnosis of occupational diseases, the issue that Employer presents here is whether Claimant, despite his diseases, is able to work in a modified position. Because the court in Hebden did not decide this question, Hebden does not prohibit Employer's litigation of this issue. As to its resolution, we derive guidance from McGonigal v. Workers' Compensation Appeal Board (City of Philadelphia), 713 A.2d 692 (Pa.Cmwlth.1998), a case in which this court addressed a claimant's Hebden argument in a medical examination context.

In McGonigal, the claimant had been working as a firefighter for Employer for twenty years when he began to experience nausea, dizziness, lightheadedness, faintness and vomiting during an exertion test. The claimant filed a claim petition under section 108(o) of the Act and alleged that he was permanently disabled as a result of his duties as a firefighter. In granting the claim petition, the referee found that the claimant was partially disabled from his years of fire fighting, but awarded the claimant total disability benefits because Employer failed to show that there were jobs available to the claimant within his physical limitations and commensurate with his age, education and experience. Sixteen years later, Employer scheduled a physical examination of the claimant, which the claimant failed to attend. In response to Employer's petition for physical examination, the claimant argued that, because his occupational disease was progressive by nature, his condition could not improve, and, therefore, he should not be required to undergo a physical examination. See...