           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alex Hostina,                                    :
                                                 :
                        Petitioner               :
                                                 :
                 v.                              : No. 546 C.D. 2017
                                                 : Submitted: January 12, 2018
Workers’ Compensation Appeal                     :
Board (Allied Chemical Corp.,                    :
Brighthouse Life Insurance and                   :
Travelers Indemnity Company),                    :
                                                 :
                        Respondent               :

BEFORE:          HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE PATRICIA A. McCULLOUGH, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                              FILED: February 22, 2018

                 Alex Hostina (Claimant) petitions for review of the April 6, 2017 order
of the Workers’ Compensation Appeal Board (Board) that affirmed the May 16,
2016 remand decision and order of the Workers’ Compensation Judge (WCJ)
concluding that Allied Chemical Corporation (Employer) was entitled to a disability
pension offset at a monthly benefit rate of $529.13 for the period of March 1, 1989
to December 19, 1995 against benefits paid to Claimant pursuant to the Workers’
Compensation Act1 (Act). For the following reasons, we affirm the order of the
Board.2

1
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.

2
  Our scope of review is limited to determining whether there has been a violation of constitutional
rights, an error of law or whether necessary findings of fact are supported by substantial evidence.
             This Court, as well as the Board, has previously addressed the lengthy
and complex history of this case and it is not necessary to recount it here. See, e.g.,
Hostina v. Workers’ Compensation Appeal Board (Allied Signal, Inc.), 832 A.2d
1157 (Pa. Cmwlth. 2003). Rather, the dispute before us distills to the issue of
whether or not Employer is entitled to an offset against workers’ compensation
benefit payments for disability pension payments made to Claimant.
             In 1996, the General Assembly passed the Act of June 24, 1996, P.L.
350 (Act 57), which amended Section 204(a) of the Act to permit an employer to
take an offset or credit against an award of workers’ compensation benefits for
pension benefits paid to a claimant “to the extent funded by the employer directly
liable for the payment of compensation.” Section 3 of Act 57, 77 P.S. § 71(a). Prior
to the enactment of Act 57, “employers were allowed to take an offset or credit for
pension benefits, as long as those benefits were paid in lieu of workers’
compensation, and were not in the nature of deferred compensation.” City of
Philadelphia v. Workers’ Compensation Appeal Board (Grevy), 968 A.2d 830, 837
(Pa. Cmwlth. 2009). Section 32.1(a) of Act 57 provides that the amendment “shall
apply only to claims for injuries which are suffered on or after the effective date of
this section.” Claimant’s work-related injury date is October 5, 1983, which is some
years prior to the effective date of Act 57. (May 16, 2016 WCJ Op., Findings of
Fact (F.F.) ¶2(c).) As a result, the issue of whether Employer is entitled to an offset
turns upon the question of whether the payments Employer made to Claimant were
due to Claimant’s inability to perform labor or were deferred compensation owed to
Claimant.



Bufford v. Workers’ Compensation Appeal Board (North American Telecom), 2 A.3d 548, 551
(Pa. 2010).
                                          2
             For example, in Toborkey v. Workmen’s Compensation Appeal Board
(H.J. Heinz), 655 A.2d 636 (Pa. Cmwlth. 1995), this Court examined whether an
employer was entitled to a credit against workers’ compensation benefits for death
and disability insurance payments and for monthly disability pension payments paid
to a claimant. Addressing the death and disability insurance first, this Court held
that employer was not entitled to a credit because the “payment is not in the nature
of sickness and accident benefits, paid with the intent to compensate [claimant] for
his work-related injury, but, rather, is an accrued benefit more similar to sick leave.”
Id. at 640. Next, the Court examined the disability pension payments and concluded
that the claimant’s disability pension is:

             1) an accrued entitlement which has been built up as a
             result of his services for Employer, 2) a benefit to which
             he would be entitled regardless of whether his disability is
             compensable, and 3) deferred compensation, rather than
             payments in relief of his inability to labor.

Id. at 641. As a result, this Court reversed the Board in Toborkey and held that
because the payments were wages for services performed rather than payments in
relief of the claimant’s inability to labor, the employer was not entitled to a credit
against workers’ compensation benefits paid. Id.
             In the instant matter, the Board examined the evidence found by the
WCJ and determined, as the WCJ had below, that the evidence clearly supports the
conclusion that the payments made by Employer to Claimant were due to his
inability to work and were not a form of compensation to which Claimant was
otherwise entitled. Before this Court, Claimant argues that Employer failed to meet
its burden to demonstrate that it is entitled to an offset, that the WCJ’s decision was
not reasoned, and that the Board misapplied the law in affirming the WCJ. We agree

                                             3
with the Board that the WCJ did not err in concluding that Employer was entitled to
an offset against the workers’ compensation benefits for the disability pension
payments Employer paid to Claimant.
                 In workers’ compensation proceedings, the WCJ is the ultimate finder
of fact and sole arbiter of credibility. Coker v. Workers’ Compensation Appeal
Board (Duquesne Light Company), 856 A.2d 257, 260 (Pa. Cmwlth. 2004). As the
fact finder, the WCJ may accept or reject the testimony of any witness, in whole or
in part. Pocono Mountain School District v. Workers’ Compensation Appeal Board
(Easterling), 113 A.3d 909, 918 (Pa. Cmwlth. 2015). It is within the exclusive
province of the WCJ to weigh and resolve conflicts in the evidence. Allegheny
Ludlum Corp. v. Workers’ Compensation Appeal Board (Bascovsky), 977 A.2d 61,
71 (Pa. Cmwlth. 2009); Coker, 856 A.2d at 260. Section 422(a) of the Act requires
that the WCJ’s decision contain findings of fact and conclusions of law based upon
the evidence as a whole, and that the decision clearly state the reasoning that led to
the WCJ’s ultimate determination, thereby allowing the Board and, upon further
review, the courts to conduct meaningful appellate review. 77 P.S. § 834.3 Section

3
    Section 422(a) of the Act provides that:

                 Neither the board nor any of its members nor any workers’
                 compensation judge shall be bound by the common law or statutory
                 rules of evidence in conducting any hearing or investigation, but all
                 findings of fact shall be based upon sufficient competent evidence
                 to justify same. All parties to an adjudicatory proceeding are
                 entitled to a reasoned decision containing findings of fact and
                 conclusions of law based upon the evidence as a whole which clearly
                 and concisely states and explains the rationale for the decisions so
                 that all can determine why and how a particular result was reached.
                 The workers’ compensation judge shall specify the evidence upon
                 which the workers' compensation judge relies and state the reasons
                 for accepting it in conformity with this section. When faced with
                 conflicting evidence, the workers’ compensation judge must
                 adequately explain the reasons for rejecting or discrediting
                                                  4
422(a) of the Act does not alter the WCJ’s quintessential function as the fact-finder
but rather requires that the WCJ provide some articulation of the objective basis for
credibility determinations of witnesses who did not provide live testimony and the
resolution of conflicting evidence. Daniels v. Workers’ Compensation Appeal
Board (Tristate Transport), 828 A.2d 1043, 1051 (Pa. 2003); Dorsey v. Workers’
Compensation Appeal Board (Crossing Construction Co.), 893 A.2d 191, 195 (Pa.
Cmwlth. 2006).
                 In the instant matter, the WCJ thoroughly reviewed the evidence and
made numerous findings of fact. The WCJ articulated the reasons for crediting
testimony and for finding that other testimony lacked credibility. In issuing the
determination, the WCJ adhered to the standard required by Section 422(a), thereby
facilitating meaningful appellate review by the Board and this Court.
                 Before the WCJ, both Claimant and Employer offered testimony.
Claimant offered the testimony of James McHale, who had served as President of
Local 8667 of the Oil, Chemical, Atomic Workers (OCAW) International Union,
and who negotiated pension agreements during his tenure. (May 16, 2016 WCJ Op.,
F.F. ¶¶7(b)&(c).) Mr. McHale testified that he no longer had a copy of the pension
plan in effect at the time of Claimant’s work-related injury but that he would have
never agreed to a pension plan option that included a disability pension as payment
for an inability to work. (Id. F.F. ¶7(e).)



                 competent evidence. Uncontroverted evidence may not be rejected
                 for no reason or for an irrational reason; the workers’ compensation
                 judge must identify that evidence and explain adequately the reasons
                 for its rejection. The adjudication shall provide the basis for
                 meaningful appellate review.

77 P.S. § 834.
                                                  5
             Employer offered the testimony of Marianne Altieri, who began
working in Employer’s pension department in 1982 and at the time of her deposition
held the position of Senior Pension Analyst. (Id. F.F. ¶21(a)&(i).) She testified that
Claimant applied for and received a disability pension based on his inability to work;
she further testified that the payments came from a plan to which Claimant did not
contribute and instead was a plan fully sponsored and funded by Employer. (Id. F.F
¶21(d) & (e).) Ms. Altieri also testified that the disability pension plan contained an
offset provision for workers’ compensation benefits, which provided, in part, that:


             Any amount paid to or on behalf of any pensioner as
             reimbursement for loss of earnings resulting from
             occupational injury or disease for which [Employer] is
             liable, whether pursuant to Workers’ Compensation or
             occupational disease laws, or arising otherwise from
             statutory or common law…and any disability payment in
             the nature of a pension under any Federal or State law shall
             be deducted from or charged against the amount of any
             pension payable under this Article V.


(Id. F.F. ¶21(f); see also Altieri Deposition, Exhibit 1.) In addition to Ms. Altieri’s
testimony, Employer presented an affidavit of Joyce Lafferty, a Human Resources
Representative for Employer, who served as the records custodian for Claimant’s
pension payments and stated that he received a non-occupational disability benefit
fully sponsored by Employer. (May 16, 2016 WCJ Op., F.F. ¶20(b)&(c).) Ms.
Lafferty also verified that Employer sent Claimant a letter in 1989 advising him that
should his workers’ compensation claim be approved, Employer would be entitled
to an offset from his pension benefit. (Id., F.F. ¶20(d).)
             In his findings of fact, the WCJ credited the testimony of Ms. Altieri
and found the testimony of Mr. McHale to lack credibility where it conflicted with
                                          6
that of Ms. Altieri. (Id., F.F. ¶¶22-23.) The WCJ explained that Ms. Altieri’s
testimony was “consistent, cogent and supported by other documentary evidence,
including the Employer’s Hourly Employees’ Pension Plan and the affidavit of
Joyce Lafferty.”   (Id., F.F. ¶22.)   The WCJ explained that his determination
regarding Mr. McHale’s testimony was due to the fact that it was “almost entirely
based upon his own recollections and not upon contemporaneous documents,” and
that Mr. McHale’s testimony was inconsistent with the other evidence of record.
(Id., F.F. ¶23.) Based upon the credible evidence of record, the WCJ found that,


            The disability pension payments at issue were not an
            accrued entitlement that had been built up as a result of
            service to the Employer and were not payments to which
            Claimant would be entitled regardless of whether
            Claimant’s disability was compensable. This Judge
            further finds the Claimant’s disability pension payments
            do not represent deferred compensation rather than
            payments in relief of the Claimant’s inability to labor.


(Id., F.F. ¶25.) The WCJ’s findings and credibility determinations reflect that
Employer satisfied both its burden of production and burden of persuasion, thereby
satisfying its ultimate burden of proof. See, e.g. Topps v. Workers’ Compensation
Appeal Board (Wickizer), 710 A.2d 1256, 1261 n.16 (Pa. Cmwlth. 1998).
            Having found that Employer satisfied its burden of proving that the
payments to Claimant were not compensation he was already entitled to but were
due to his inability to work, the WCJ did not err in concluding that Employer was
entitled to credit against workers’ compensation benefits and the Board did not err
in affirming the WCJ. Claimant contends that in reaching this conclusion, the WCJ
misapplied Toborkey; however, in making this argument, Claimant merely argues

                                        7
that the WCJ should have interpreted the evidence differently.       As a result,
Claimant’s argument is not that Toborkey was misapplied, but that if Toborkey were
applied to different facts, there would be a different outcome. This is an issue
beyond the purview of this Court.
            Accordingly, the order of the Board is affirmed.




                                    __________ ___________________________
                                    JAMES GARDNER COLINS, Senior Judge




                                        8
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alex Hostina,                         :
                                      :
                  Petitioner          :
                                      :
            v.                        : No. 546 C.D. 2017
                                      :
Workers’ Compensation Appeal          :
Board (Allied Chemical Corp.,         :
Brighthouse Life Insurance and        :
Travelers Indemnity Company),         :
                                      :
                  Respondent          :


                                 ORDER

            AND NOW, this 22nd day of February, 2018, the Order of the Workers’
Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED.




                                  __________ ___________________________
                                  JAMES GARDNER COLINS, Senior Judge
