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IN THE COMMONWEALTH COURT OF PENNSYLVANIA City of Philadelphia, v. Workers' Compensation Appeal Board (Hunter), Respondent : : : : : : : :

Petitioner

No. 1949 C.D. 2005

ORDER AND NOW this 7th day of December, 2006, IT IS

HEREBY ORDERED that the above captioned opinion filed September 1, 2006, shall be designated OPINION rather than MEMORANDUM OPINION and it shall be reported.
________________________________________ BONNIE BRIGANCE LEADBETTER, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA City of Philadelphia, v. Workers' Compensation Appeal Board (Hunter), Respondent : : : : : : : :

Petitioner

No. 1949 C.D. 2005 SUBMITTED: March 3, 2006

BEFORE:

HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge

OPINION BY JUDGE LEADBETTER

FILED: September 1, 2006

The City of Philadelphia (City) petitions for review of the order of the Workers' Compensation Appeal Board (Board), which affirmed the order of the Workers' Compensation Judge (WCJ) directing resumption of disability benefits that the City unilaterally ceased paying after the claimant began receipt of a service-connected disability pension and awarding a thirty percent penalty on the amount of the improperly withheld payments. We affirm in part, reverse in part and remand for further proceedings. In October of 1994, the City acknowledged liability, in a Notice of Compensation Payable (NCP), for the injury sustained by Thomas Hunter while working for the City's police department. Following the injury, Hunter worked

periodically in light-duty positions, without any loss of earnings (receiving either full pay or injured on duty benefits), until February of 1995, when he retired due to the injury and began receiving regular pension benefits as well as total disability benefits pursuant to the Workers' Compensation Act.1 Hence, beginning in February of 1995, Hunter received a regular pension benefit payment of approximately $1,500.00 per month and a workers' compensation total disability benefit of $465.50 per week.2 In August of 1998, the City granted Hunter's application, retroactive to February 7, 1995, for conversion of his regular pension to a service-connected disability pension, pursuant to which Hunter became entitled to an increased pension benefit in the amount of approximately $2,118.00 per month. The parties agree that, unlike a regular pension, retirees are not entitled to receive duplicate benefits from a service-connected disability pension and from workers' compensation disability. Beginning August 31, 1998, Hunter began receiving the service-connected disability pension benefit less $736.00, which the City withheld to offset previously paid workers' compensation benefits. Until October 24, 1998, Hunter also received his weekly workers' compensation payment. Thereafter, the City ceased payment of the workers' compensation benefit and Hunter received only the pension benefit as reduced by the offset.3

Act of June 2, 1915, P.L. 736, as amended, 77 P.S.

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