Case Summaries: November - December 2008
WCJ HAD JURISDICTION TO DECIDE WHETHER AN EMPLOYER
COULD OFFSET PENSION BENEFITS IN ACCORDANCE WITH A
COLLECTIVE BARGAINING AGREEMENT AND TAKE A GREATER
CREDIT THAN PERMITTED BY THE WC ACT
The claimant in Jerome Jones v. W.C.A.B. (City of Chester), No. 621 C.D. 2008 (Pa. Cmwlth. November 12, 2008), filed a Petition to Review Benefit Offset. The Collective Bargaining Agreement (“CBA”) between the City of Chester and claimant’s Police Department expressly stated that “The City can claim as an offset from the aforesaid pension the following items: (a) 100% of whatever workers’ compensation benefits the retired police officer is receiving as a result of his or her service-connected disability”. Claimant contended that his employer should not be permitted to offset his pension benefits in an amount equal to 100% of his workers’ compensation benefits because of Sections 450 and 204(a) of the Act. Section 450 provides that a CBA cannot diminish an employee’s rights to benefits and any CBA in violation of this provision was null and void. Moreover, Section 204(a) provides that the employer could take a credit against workers’ compensation benefits for any pension benefits paid to the extent the pension plan was funded by the employer directly liable for the workers’ compensation benefits. The employer in this case funded 29.27% of the pension benefits, however it was taking a 100% offset as per the language in the CBA.
As a WCJ and the Board cannot preside over matters that relate to benefits other than workers’ compensation benefits and the interpretation of a CBA is generally reserved for a grievance arbitrator, the Board determined that the WCJ lacked jurisdiction to entertain the claimant’s Review Petition. The Commonwealth Court disagreed and determined that a WCJ is responsible for addressing an alleged entitlement under the Act and therefore, he can rule on questions that would ordinarily be outside his jurisdiction. The Court was unable to rule on the primary issue of whether the employer was permitted to offset the claimant’s pension benefits in accordance with the CBA or whether the offset had to be in accordance with the Act and based on the percentage of pension benefits funded by the employer. This was a result of the record lacking evidence such as claimant’s injury date, when he began receiving workers’ compensation benefits, the compensation rate, and the amount claimant’s benefits were being reduced. The Commonwealth Court remanded to the Board for further remand to the WCJ in order for this evidence to be placed into the record and for a final determination whether the Review Petition should be granted or denied.
Any questions regarding this case can be directed to Carrie E. Smyth at (717) 441-7068 or csmyth@tthlaw.com.
COURT DETERMINES NOTICE OF ABILITY TO RETURN TO WORK
APPLIES TO PRE-ACT 57 CASES; PROVISION IS FOUND TO BE
PROCEDURAL (HENCE RETROACTIVE) NOT SUBSTANTIVE
In Miegoc v. W.C.A.B (Throop Fashions/Leslie Fay and ITS Hartford), No. 948 C.D. 2008 (Pa. Cmwlth. December 3, 2008), the employer had filed a Suspension Petition on the grounds that claimant had refused available work within her medical restrictions. Claimant argued that the Suspension Petition should have been dismissed because the employer never issued a Notice of Ability to Return to Work (LIBC 757). The claimant’s injury arose on December 28, 1992, therefore her injury occurred before the Act was amended to require employer’s to provide written notice in the form of a Notice of Ability to Return to Work (LIBC 757). The WCJ denied the Suspension Petition because of the employer’s failure to issue the LIBC 757.
The Board reversed and concluded that the section of the Act requiring issuance of the LIBC 757 was a substantive provision, which affected rights of the parties and therefore could not be applied retroactively or impact cases where the injury occurred prior to the amendment. The claimant argued on appeal the Commonwealth Court that the notice requirement section was a procedural provision and the employer’s failure to comply with it would preclude a suspension of benefits.
The Court agreed that section 306(b)(3) of the Act was merely a procedural provision. The section requires an employer/carrier to provide notice of a change in claimant’s condition, the claimant’s obligation to look for work, that proof of available employment could jeopardize the claimant’s right to ongoing benefits and the claimant’s right to consult with an attorney. According to the Court, the requirement of issuing an LIBC 757 did not alter the facts that an employer must prove in order to obtain a suspension petition, and therefore, the requirement was procedural in nature. The Court held that compliance with sending the LIBC 757 is a prerequisite for presenting the evidence to support a suspension petition. Therefore, because the employer did not issue the LIBC 757, the Court denied the Suspension Petition. The LIBC 757 must be issued when the employer seeks to modify/suspend benefits by way of a suspension/modification petition where there is a change in medical condition.
[1]
Any questions regarding this case can be directed to Carrie E. Smyth at (717) 441-7068 or csmyth@tthlaw.com.
[1] However, where suspension or modification is sought as a result of the claimant’s actions such as his return to work, it is not necessary for the employer to issue the LIBC 757. Gulinello v. W.C.A.B. (City of Pittsburgh), No. 1029 C.D. 2008 (Pa. Cmwlth. December 17, 2008).