            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Todd Nuttall,                                  :
                       Petitioner              :
                                               :
               v.                              :
                                               :
Workers’ Compensation Appeal                   :
Board (City of Chester),                       :    No. 1428 C.D. 2019
                  Respondent                   :    Submitted: January 17, 2020


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                             FILED: May 4, 2020


               Todd Nuttall (Claimant) petitions for review of the September 18, 2019
order of the Workers’ Compensation Appeal Board (Board) affirming the decision
and order of Workers’ Compensation Judge Bonnie Callahan (WCJ) that granted the
Petition to Suspend Compensation Benefits filed by the City of Chester (Employer)
against Claimant pursuant to the Workers’ Compensation Act (Act).1 We affirm.
               The pertinent facts of this matter are as follows. On February 1, 2010,
Claimant, a police officer for Employer, entered Employer’s Deferred Retirement
Option Plan (DROP) program, which Employer offers to allow police officers with
at least 20 years of service to continue to work and be paid while also receiving


      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
pension benefits. In brief, while an officer participates in the DROP program, his or
her pension benefits are deposited in a trust account to which the officer is entitled
at the time of his actual retirement. This Court previously summarized Employer’s
DROP program, which is part of Employer’s Police Pension Ordinance codified in
Article 143 of Employer’s Administrative Code, in Massi v. City of Chester
Aggregated Pension Board (Pa. Cmwlth., No. 1635 C.D. 2017, filed July 17, 2018),
wherein the Court explained:

             Section 143.24 of the Ordinance outlines [Employer’s]
             Deferred Retirement Option Plan (DROP) program, which
             is available to officers with at least 20 years of service.
             Under this program, an officer who is otherwise entitled to
             retire may enter the DROP program, continue to work and
             be paid by Employer while also receiving his pension
             benefits. These pension benefits are deposited into a trust
             account which an officer is then entitled to at the time of
             his actual retirement. To participate in the DROP
             program, officers “shall make an irrevocable commitment
             to separate from [Employer] service as a police officer and
             retire upon ceasing participation in the DROP, which they
             must do no later than five (5) years after entering the
             DROP.” Ordinance Article 143.24(b). The Ordinance
             also provides that “[o]nce entering the DROP, the member
             continues to be a DROP Participant until separation from
             [Employer] service as a police officer, at which point the
             member is deemed retired.” Ordinance Article 143.24(j).

Id., slip op. at 4-5. Claimant’s DROP separation date was January 31, 2015. 2018
WCJ Decision dated July 30, 2018 (2018 WCJ Decision) at 4, Findings of Fact (F.F.)
8(b).
             On March 27, 2014, Claimant suffered a work-related crush injury to
his right foot that resulted in a resection surgery of the right fifth metatarsal bone
and then a left cuboid bone blister from walking with an altered gait following the


                                          2
surgery. See 2018 WCJ Decision at 3, F.F. 5. Employer accepted the injury as
compensable.2 See 2018 WCJ Decision at 3, F.F. 5; see also Board Opinion dated
September 18, 2019 (2019 Board Opinion) at 1.
               On September 12, 2016, Employer filed a modification petition and a
suspension petition, both of which alleged that Claimant has post-injury self-
employment earnings for which it was entitled to a credit.3 See 2018 WCJ Decision
at 3, F.F. 1; see also Modification Petition dated September 12, 2016; Suspension
Petition dated September 12, 2016.4 At an October 11, 2017 hearing on these
petitions, Employer amended the petitions to include a claim that Claimant
voluntarily withdrew from the workforce as a result of his participation in the DROP
program, and a further allegation that it was entitled to a credit regarding its
contribution to Claimant’s pension fund. See 2018 WCJ Decision at 3, F.F. 3; see
also 2019 Board Opinion at 1-2.               The original Modification and Suspension


       2
         Employer originally accepted the injury as a “crush injury” to Claimant’s “right [fifth]
proximal phalanx” on which Employer paid 22 weeks of compensation (16 weeks for the loss of
the use of the right toe and a further 6 weeks for healing time) for “specific loss of right fifth
proximal phalanx. See WCJ Decision dated December 21, 2015 (2015 WCJ Decision) at 3, F.F.
1. The injury description was revised as stated above on December 21, 2015, following Claimant’s
successful Review Petition. See 2018 WCJ Decision at 3, F.F. 5; see also 2015 WCJ Decision at
10.
       3
         Previously, Claimant had filed a Petition for Review seeking a revised description of the
injury description and a Penalty Petition alleging Employer had failed to properly mail indemnity
checks to Claimant. See 2015 WCJ Decision. On December 21, 2015, a workers’ compensation
judge granted the Petition for Review and dismissed the Penalty Petition. See id. at 10. Thereafter,
Employer filed a Termination Petition alleging Claimant had fully recovered from his work injury
as of February 10, 2016, which a different workers’ compensation judge denied and dismissed by
decision rendered March 24, 2017. See WCJ Decision dated March 24, 2017.
       4
         Employer filed another combined Modification/Suspension Petition on December 13,
2016, again alleging its entitlement to a credit based on Claimant’s post-injury self-employment.
See 2018 WCJ Decision at 3, F.F. 2; see also Modification/Suspension Petition dated December
13, 2016.

                                                 3
Petitions, together with the amended petitions, are referred to collectively herein as
the Suspension Petition.5
              On July 30, 2018, the WCJ issued a decision that determined Employer
had met its burden of proving that Claimant had voluntarily withdrawn from the
workforce as of his DROP retirement date of January 31, 2015. See 2018 WCJ
Decision at 8-9, F.F. 16 & Conclusion of Law (C.L.) 3; see also 2019 Board Opinion
at 2. The WCJ found that, while Claimant did suffer a work injury in 2014, he did
not retire in 2015 as a result of this injury. Id. Instead, the WCJ specifically found
that the evidence established that Claimant retired in January 2015 as a result of his
participation in the DROP program. Id. Additionally, the WCJ determined that
Employer was entitled to a credit for the 28.7% contribution it had made to
Claimant’s pension fund. See 2018 WCJ Decision at 8-9, F.F. 17 & C.L. 4; see also
2019 Board Opinion at 2. Accordingly, the WCJ granted the Suspension Petition in
part6 based on Claimant’s voluntary withdrawal from the workforce and suspended
Claimant’s benefits as of January 31, 2015. See 2018 WCJ Decision at 10, Order;
see also 2019 Board Opinion at 2. The WCJ determined the remainder of the claims
of the Suspension Petition, including the pension credit, were moot. Id. Claimant
appealed the WCJ’s rulings, and the Board affirmed by opinion dated September 18,




       5
          Claimant had also filed a Penalty Petition on June 2, 2017, and a Modification Petition
on June 22, 2017, both of which were withdrawn at the October 11, 2017 hearing on Employer’s
Modification and Suspension Petitions. See 2018 WCJ Decision at 3, F.F. 4; see also Penalty
Petition dated June 2, 2017; Modification Petition dated June 22, 2017.
       6
         The WCJ determined that Employer had failed to meet its burden of proving an
entitlement to a suspension or modification of Claimant’s benefits based on income allegedly
earned by Claimant from Widener University between the date he began receiving workers’
compensation benefits and January 31, 2015. See 2018 WCJ Decision at 8, C.L. 2.

                                               4
2019. See generally 2019 Board Opinion. Claimant timely petitioned this Court for
review.7

                     Claimant’s Retirement from the Workforce

               On appeal, Claimant first challenges whether substantial evidence
existed to support the WCJ’s grant of the Suspension Petition based on his purported
retirement. See Claimant’s Brief at 16-21. Claimant argues that no credible
evidence exists to support the conclusion that he voluntarily withdrew from the
workforce. Id. We do not agree.
               Where an employer seeks termination or suspension of benefits based
on an employee’s retirement, the employer must show by the totality of the
circumstances that the employee has chosen not to return to the workforce. City of
Pittsburgh v. Workers’ Comp. Appeal Bd. (Robinson), 67 A.3d 1194, 1208 (Pa.
2013). As our Supreme Court has explained:

               Where the employer challenges the entitlement to
               continuing compensation on the grounds that the claimant

       7
         In workers’ compensation appeals, this Court’s “scope of review is limited to determining
whether constitutional rights have been violated, whether an error of law was committed and
whether necessary findings of fact are supported by substantial evidence.” Morocho v. Workers’
Comp. Appeal Bd. (Home Equity Renovations, Inc.), 167 A.3d 855, 858 n.4 (Pa. Cmwlth. 2017)
(citing Johnson v. Workmen’s Comp. Appeal Bd. (Dubois Courier Express), 631 A.2d 693 (Pa.
Cmwlth. 1993)).

                Substantial evidence is such relevant evidence a reasonable person might
       find sufficient to support the WCJ’s findings. In determining whether a finding of
       fact is supported by substantial evidence, this Court must consider the evidence as
       a whole, view the evidence in a light most favorable to the party who prevailed
       before the WCJ, and draw all reasonable inferences which are deducible from the
       evidence in favor of the prevailing party.
Frog, Switch & Mfg. Co. v. Workers’ Comp. Appeal Bd. (Johnson), 106 A.3d 202, 206 (Pa.
Cmwlth. 2014) (internal quotations and citations omitted).

                                                5
             has removed himself or herself from the general workforce
             by retiring, the employer has the burden of proving that
             the claimant has voluntarily left the workforce. There is
             no presumption of retirement arising from the fact that a
             claimant seeks or accepts a pension . . . rather the worker’s
             acceptance of a pension entitles the employer only to a
             permissive inference that the claimant has retired. Such
             an inference, if drawn, is not on its own sufficient evidence
             to establish that the worker has retired – the inference must
             be considered in the context of the totality of the
             circumstances. The factfinder must also evaluate all of the
             other relevant and credible evidence before concluding
             that the employer has carried its burden of proof.

             If the employer produces sufficient evidence to support a
             finding that the claimant has voluntarily left the
             workforce, then the burden shifts to the claimant to show
             that there in fact has been a compensable loss of earning
             power. Conversely, if the employer fails to present
             sufficient evidence to show that the claimant has retired,
             then the employer must proceed as in any other case
             involving a proposed modification or suspension of
             benefits.

Robinson, 67 A.3d at 1209. An employer may establish an employee’s purported
retirement by presenting evidence of objective facts of the employee’s status,
“including the claimant’s receipt of a pension, the claimant’s own statements relating
to voluntary withdrawal from the workforce, and the claimant’s efforts or non-efforts
to seek employment.” Id. at 1210. Once the employer establishes that the employee
has retired, then the burden shifts to the employee to show that he is still seeking
employment within his limitations or was forced to retire from the workforce as a
result of his work-related injury. Day v. Workers’ Comp. Appeal Bd. (City of
Pittsburgh), 6 A.3d 633, 637 (Pa. Cmwlth. 2010).



                                          6
                Here, in support of the Suspension Petition, Employer presented the
testimony of Danielle Martin, its deputy controller. See 2018 WCJ Decision at 3-5,
F.F. 8. Martin explained that Employer’s DROP program is a completely optional
program open to Employer’s more tenured police and fire officers that helps
Employer plan for those officers’ retirements. See id. at 3, F.F. 8a. Martin testified
that a qualified officer who enters the DROP program is given a five-year date from
entrance in the program until a date when the officer will separate from employment
with Employer. See id. at 3-4, F.F. 8a. Martin explained that upon an officer
entering the DROP program, the officer no longer contributes to the pension plan
and the officer’s pension benefit is calculated and invested on the officer’s behalf by
Employer. See id. at 4, F.F. 8a. Martin explained that the officer receives a payout
upon their separation from employment at their five-year separation date, but may
separate prior to that date and receive a smaller payout. Id. Martin further explained
that upon separation an officer may work for another employer and may also apply
to work for Employer in a different capacity. Id. Martin testified that Claimant
entered the DROP program on February 1, 2010, and remained fully employed as
an officer until the completion of the program on January 31, 2015, at which time
he retired. See id. at 4, F.F. 8b. The WCJ found Martin’s testimony regarding the
DROP program and Claimant’s participation therein credible.8 See id. at 7, F.F. 14.

      8
          Specifically, the WCJ stated:

                This Judge finds the testimony of Danielle Martin credible. Her
                testimony is credible regarding her understanding of the DROP
                program. Her testimony is credible that it is a completely optional
                program; Claimant entered the DROP program on February 1, 2010
                and his separation date was January 31, 2015; Claimant retired as of
                his DROP separation date; and in the eyes of [Employer], because
                of the DROP program, Claimant is separated from [Employer]. Her
                testimony is credible regarding the pension fact sheet and spread
                sheet providing a breakdown of contributions made by Claimant,
                                                 7
              To contest the Suspension Petition, Claimant testified on his own behalf
before the WCJ. See 2018 WCJ Decision at 6-7, F.F. 12. Claimant testified that he
began work as a police officer in 1989. See id. at 6, F.F. 12b. He testified that he
understood the DROP program was optional, and that he entered the program on
February 1, 2010, intending to retire on January 31, 2015. See id. at 6-7, F.F. 12b &
12d. Claimant explained that he has not reapplied for any work after completing the
DROP program. See id. at 7, F.F. 12c. He further explained that, while he has
applied for disability, he receives a regular pension, as opposed to a disability
pension, from Employer. See id. at 7, F.F. 12c. The WCJ found Claimant’s
testimony “credible that he entered the DROP program on February 1, 2010, with a
retirement date of January 31, 2015; it was optional to enter the DROP program; and
he entered the DROP program on February 1, 2010 with the intention that
[Employer] would retire him on January 31, 2015.” Id. at 8, F.F. 15
              Of course, in workers’ compensation matters, the WCJ determines the
credibility and weight of evidence, and neither the Board nor this Court may overturn
those determinations on appeal.         Koszowski v. Workmen’s Comp. Appeal Bd.
(Greyhound Lines, Inc.), 595 A.2d 697, 699 (Pa. Cmwlth. 1991); see also Hawbaker
v. Workers’ Comp. Appeal Bd. (Kriner’s Quality Roofing Servs. & Uninsured
Employer Guar. Fund), 159 A.3d 61, 69 (Pa. Cmwlth.), appeal denied, 173 A.3d
252 (Pa. 2017) (“Neither the Board nor this Court may reweigh the evidence or the
WCJ’s credibility determinations.”).



              [Employer], and the state. Her testimony is credible that Claimant
              currently receives the monthly pension amount of $4,265.66.

2018 WCJ Decision at 7, F.F. 14.

                                              8
               Regarding Claimant’s withdrawal from the workforce, the WCJ made
the following relevant determination:

               This Judge finds, based on the totality of the
               circumstances, that Claimant voluntarily withdrew from
               the workforce as of January 31, 2015. In so finding, this
               Judge notes that Claimant voluntarily entered the DROP
               program in 2010 and established a retirement date of
               January 31, 2015. While Claimant sustained a work injury
               in 2014, Claimant did not retire in 2015 because of the
               work injury. His testimony and the testimony of Danielle
               Martin establishes that he retired as of January 31, 2015
               because of his participation in the DROP program.
               Further, while the acceptance of a retirement pension is
               not in and of itself proof of a voluntary withdrawal, it is a
               factor that may be considered when deciding if an
               employee has voluntarily withdrawn from the workforce.
               This Judge also finds it significant that, when Claimant
               testified in 2016, he testified he did not feel he was totally
               disabled [], but when he testified in connection with this
               litigation, he testified he has not reapplied for any work.

2018 WCJ Decision at 8, F.F. 16.
               As a result of the WCJ’s credibility determinations, which we must
accept, as did the Board,9 we find that substantial record evidence supports the
WCJ’s findings of fact, specifically that Claimant voluntarily withdrew from the
workforce pursuant to his participation in the DROP program. See Robinson. The
objective evidence reveals that Claimant had entered the DROP program and was
injured during the pendency of the program, but did not retire until his scheduled
DROP retirement date of January 31, 2015. The objective evidence also reveals that
Claimant was receiving a normal, non-disability pension from Employer.

      9
          See 2019 Board Opinion at 5-6.

                                             9
Additionally, Claimant previously testified that he did not feel he was totally
disabled, but testified in this matter that he was neither working nor had looked or
applied for work, despite Martin’s credible testimony that the DROP program does
not preclude Claimant from seeking employment. These objective facts represent
substantial evidence to support the WCJ’s determination that Claimant had retired
from the workforce and the Board’s affirmance thereof. We discern no error in the
Board affirming the WCJ’s determination regarding Claimant’s voluntary retirement
from the workforce.

                      Credit for Pension Plan Contributions

            Claimant also argues on appeal that the WCJ erred by concluding that
Employer was entitled to a credit for contributions it made to Claimant’s pension
fund because Employer failed to put forth substantial evidence of an entitlement to
such a credit. See Claimant’s Brief at 21-27. We disagree.
            Section 204(a) of the Act allows employers to take a credit against
workers’ compensation payments for amounts paid directly by the employer to an
employee’s pension fund. See 77 P.S. § 71(a). An employer seeking to reduce an
employee’s workers’ compensation payments due to a pension offset bears the
burden of proving the extent to which it funded the pension plan. Stepp v. Workers’
Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 602 (Pa. Cmwlth.
2014). An employer may meet this burden of proving the extent it contributed to an
employee’s pension plan by presenting expert testimony in the form of actuarial
testimony. Dep’t of Pub. Welfare v. Workers’ Comp. Appeal Bd. (Harvey), 993 A.2d
270, 281-82 (Pa. 2010).




                                        10
              Here, Martin testified that Claimant receives a monthly pension benefit
from Employer of $4,265.66, and that Claimant contributed a total of $36,524.34 to
his pension over the course of his employment. See 2018 WCJ Decision at 4, F.F.
8b. The WCJ found this testimony credible. Id. at 7, F.F. 14.
              Additionally, Employer presented the testimony of Larry Brisman
regarding Claimant’s pension. See 2018 WCJ Decision at 5-6, F.F. 9. Brisman, an
enrolled actuary,10 testified that Employer asked him to produce an actuarial report
regarding Employer’s contributions to Claimant’s pension plan. Id. at 5, F.F. 9a.
Brisman explained that Claimant’s total pension benefit amounts to $51,187.92
annually, with $6,053.48 of that amount being attributable to Claimant’s
accumulated contributions.       Id. at 5, F.F. 9b.      The remaining $45,134.44 of
Claimant’s annual pension benefits, Brisman explained, consists of a
Commonwealth-provided portion and an Employer-provided portion.                    Id.   In
summary, Brisman calculated that Employer contributed 28.7% of Claimant’s
pension benefits, with the Commonwealth contributing 59.5% and Claimant’s
contributions accounting for the remaining 11.8%. Id. at 6, F.F. 9b. Employer’s
28.7% contribution represents an annual contribution of $14,705.14, which is
unaltered by any delayed contributions to the pension plan. Id. at 5-6, F.F. 9b. The
WCJ made the following credibility determinations regarding Brisman’s testimony:

              This Judge finds Larry Brisman credible. His testimony is
              credible that he reviewed the documentation provided to
              him and was able to determine contributions to individual
              recipients of the pension plan. His testimony is credible
              that [Employer] contributes $14,705.14 annually to the

       10
           Brisman testified he is licensed and able to determine liabilities and minimum
contribution requirements for pension plans, including municipal pension plans. See 2018 WCJ
Decision at 5, F.F. 9a.

                                            11
               total pension Claimant receives, or 28.7% of the total. His
               testimony is credible that delayed contributions to the
               pension plan would not change his calculation.

2018 WCJ Decision at 7, F.F. 14.
               Based on this evidence, the WCJ found as follows regarding
Employer’s requested credit for contributions to Claimant’s pension plan:

               This Judge finds [Employer] is entitled to a credit for
               pension benefits received by Claimant to the extent the
               pension fund was funded by [Employer]. [Employer],
               through the credible testimony of Mr. Brisman, met its
               burden of proving [Employer] contributed 28.7% of the
               pension benefits.

2018 WCJ Decision at 8, F.F. 17.
               We find that substantial evidence supports the WCJ’s findings of fact
that Employer was entitled to a credit for Employer-funded pension benefits paid to
Claimant. The WCJ found the actuarial testimony credible and that it established
the extent of Employer’s funding of Claimant’s pension benefits and, accordingly,
Employer’s entitlement to a credit therefor. Contrary to Claimant’s arguments that
Employer’s evidence was not credible and based on unreliable figures, the Board
accepted these evidentiary credibility and weight determinations,11 and we must also
do the same. See Koszowski. Accordingly, we determine no error in the Board’s
affirmance of the WCJ’s determination that Employer is entitled to a credit for
contributions it paid to Claimant’s pension fund.
               To the extent Claimant argues that any right Employer may have had
to a credit for its contributions to Claimant’s pension fund is barred by the doctrine


      11
           See 2019 Board Opinion at 8.
                                           12
of laches, see Claimant’s Brief at 26-27, we note that Claimant raises this issue for
the first time in his brief and it is accordingly waived. See Pa.R.A.P. 1551.
             For the above reasons, the Board’s order is affirmed.



                                       __________________________________
                                       CHRISTINE FIZZANO CANNON, Judge




                                         13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Todd Nuttall,                        :
                 Petitioner          :
                                     :
            v.                       :
                                     :
Workers’ Compensation Appeal         :
Board (City of Chester),             :   No. 1428 C.D. 2019
                  Respondent         :


                                 ORDER


            AND NOW, this 4th day of May, 2020, the September 18, 2019 order
of the Workers’ Compensation Appeal Board is AFFIRMED.



                                   __________________________________
                                   CHRISTINE FIZZANO CANNON, Judge
