                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Cook,                                     :
                              Petitioner         :
                                                 :
                       v.                        :
                                                 :
Workers’ Compensation Appeal                     :
Board (Department of                             :
Transportation),                                 :   No. 765 C.D. 2017
                      Respondent                 :   Submitted: January 26, 2018


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                          FILED: May 18, 2018

               Robert Cook (Claimant) petitions this Court for review of the Workers’
Compensation (WC) Appeal Board’s (Board) May 12, 2017 order affirming the
Workers’ Compensation Judge’s (WCJ) decision denying Claimant’s Petition to
Suspend Indemnity Benefits (Suspension Petition). Claimant essentially presents one
issue for this Court’s review: whether Claimant was entitled to collect specific loss
benefits as of April 30, 2014.1 Upon review, we affirm.

       1
         Claimant’s Statement of Questions Involved lists three issues: (1) whether the Board erred
by misapprehending controlling case law requiring that the April 30, 2014 offset reduction of his
benefits effectively ended his total disability status, making his previously-awarded specific loss
benefits due and payable; (2) in the alternative, whether the Board erred by misapprehending
controlling case law establishing that Claimant’s April 30, 2014 voluntary removal from the
workforce and resultant benefits suspension constituted the end of this total disability status, making
his previously-awarded specific loss benefits due and payable; and (3) whether the Board erred by
affirming the WCJ’s decision denying Claimant penalties when the Commonwealth of
Pennsylvania, Department of Transportation refused to pay specific loss benefits as ordered.
Because these issues are subsumed in the analysis of whether Claimant was entitled to specific loss
benefits as of April 30, 2014, we have combined the issues herein.
                                          Background
               The facts in this case are not in dispute. On September 26, 2005,
Claimant sustained rib, lung, and left arm and hand injuries when he was struck by a
vehicle in the course and scope of his employment for the Commonwealth of
Pennsylvania Department of Transportation (Employer).                   On October 5, 2005,
Employer issued a Notice of Compensation Payable (NCP) accepting liability for
Claimant’s injuries and awarding Claimant temporary total disability benefits in the
amount of $716.00 per week. On July 6, 2007, Claimant’s compensation ended
pursuant to a June 4, 2007 Notice of WC Benefit Offset. On November 6, 2007, a
WCJ accepted the parties’ stipulation of facts (Stipulation), wherein they agreed
Claimant would “begin receiving reduced [WC] benefits in the amount of $202.02
per week based on his continuing receipt of offsetable benefits, namely his retirement
pension[,]” from November 6, 2007 “into the future in accordance with the terms and
limitations of the [WC] Act [(Act)2].” Stip. at 2.
               On September 27, 2007, Claimant filed a claim petition for specific loss
benefits due to the loss of use of his left arm and hand. After numerous hearings, on
September 12, 2008, the WCJ determined that Claimant permanently lost the use of
his left hand and forearm for all practical intents and purposes, and that Claimant was
still not recovered from his lung injury. Accordingly, the WCJ ordered Employer

               to pay [Claimant] [WC] at a rate of $716.00 per week and
               continue to pay such compensation for 370 weeks in
               payment of the [l]oss of [u]se of [Claimant’s] left forearm
               and hand. The aforesaid award shall be due and payable
               when [Claimant’s] [t]emporary [t]otal [d]isability status
               changes or when he is no longer disabled from his other
               injuries (injuries other than to his left forearm and
               hand).


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


                                                 2
WCJ September 12, 2008 (9/12/08) Dec. at 5 (emphasis added).
              On June 11, 2009, the parties entered into a third-party settlement
agreement, wherein they “agreed that Employer was responsible for 34.35[%] of
[Claimant’s] future indemnity benefits and medical expenses until a subrogation
interest of $3,539,233.81 was exhausted. As a result, Claimant’s weekly benefits
were reduced from $202.02 to $69.39 per week.” WCJ March 1, 2016 (3/1/16) Dec.
at 3. “On April 30, 2014, Employer issued a Notice of [WC] Benefit Offset wherein
Employer asserted an offset in the amount of $230.75 per week, based on Claimant’s
receipt of Social Security Retirement Benefits.             As a result, Claimant’s weekly
benefits were reduced from $69.39 to $0.00 per week.” WCJ 3/1/16 Dec. at 3.
Claimant did not challenge the sums or the offsets.
              On July 1, 2015, Claimant filed a Petition for Penalties (Penalty Petition)
alleging that since his weekly benefits had been reduced to $0.00 by the third-party
settlement and Social Security and pension offsets, his temporary total disability
status had changed, thus, he was entitled to receive his previously-awarded specific
loss benefits. WCJ hearings were held on July 28 and October 27, 2015, during
which Claimant’s counsel amended the Penalty Petition to the Suspension Petition on
the basis that Claimant had voluntarily removed himself from the workforce as of
April 30, 2014 for reasons unrelated to his work injury. On March 1, 2016, the WCJ
denied the Suspension Petition because Claimant failed to prove that he voluntarily
retired from the workforce, that his total disability benefits should be suspended, or
that his specific loss benefits were due and owing as of April 30, 2014. Claimant
appealed to the Board. On May 12, 2017, the Board affirmed the WCJ’s decision.
Claimant appealed to this Court.3

       3
        “On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
                                                3
                                      Discussion
             Claimant argues that since his total disability status ended on April 30,
2014, either because his weekly benefit had been offset to $0.00 or because he
voluntarily withdrew from the workforce, he was entitled to receive his specific loss
benefits as of that date.
             Section 306(d) of the Act provides, in relevant part:

             Where, at the time of the injury the employe receives other
             injuries, separate from these which result in permanent
             injuries enumerated in [Section 306(c)] of [the Act], the
             number of weeks for which compensation is specified for
             the permanent injuries shall begin at the end of the period
             of temporary total disability which results from the
             other separate injuries, but in that event the employe shall
             not receive compensation provided in [Section 306(c)] of
             [the Act] for the specific healing period. In the event the
             employe suffers two or more permanent injuries of the
             above enumerated classes compensable under [Section
             306(c)] of [the Act], he shall be compensated for the largest
             single healing period rather than the aggregate of the
             healing periods.

77 P.S. § 513(25) (emphasis added). Accordingly, “[a] claimant is permitted to
receive specific loss benefits for the work injury for which he . . . is receiving total
disability benefits only when total disability has resolved into a specific loss.
Consequently, specific loss benefit payment may not begin until after payment of
total disability payments ends.”    Fields v. Workers’ Comp. Appeal Bd. (City of
Phila.), 49 A.3d 454, 456 (Pa. Cmwlth. 2012) (citation omitted).
             Moreover, in Coker v. Workers’ Compensation Appeal Board (Duquesne
Light Co.), 856 A.2d 257 (Pa. Cmwlth. 2004), a claimant who was awarded total
disability and specific loss benefits, and whose total disability benefits were
substantially offset by his pension benefits, similarly argued that his specific loss
benefits should be paid because his total disability ended when the pension benefits


                                           4
offset became effective.       This Court affirmed the Board’s decision denying the
claimant immediate specific loss benefit payouts because the claimant’s total
disability had not ceased. The Coker Court ruled that a “[c]laimant cannot collect,
concurrently, specific loss benefits and total disability benefits, even though the
disability benefits have been offset . . . .” Id. at 262 (emphasis added). The Court
further observed that the total of the claimant’s employer-funded disability payments
(i.e., pension and WC benefits) equaled the amount of WC benefits to which the
claimant was entitled under the Act.
              The WCJ in the instant matter made the following findings:4

              9. This [WCJ] finds [Coker] to be controlling. . . . Claimant
              argues that Coker is distinguishable from the instant case
              because the claimant there received a reduced benefit, while
              Claimant in the instant case is receiving nothing due to
              various offsets. This [WCJ] finds that the rationale of
              Coker is no less applicable where [a] claimant is no longer
              receiving any monetary benefits directly from [an
              employer].
              10. In addition to the rationale of Coker, Claimant’s
              argument must also be rejected based on the definitions and
              parameters of ‘total disability’ and ‘partial disability’ set
              forth in the Act. Under [S]ection 306 of the Act[,] total


       4
         The law is well-settled that “[t]he WCJ has exclusive authority to act as fact finder,
determine credibility of witnesses, and weigh the evidence. The WCJ’s findings will not be
disturbed if they are supported by substantial, competent evidence.” Stepp, 99 A.3d at 601 n.6.

              ‘Moreover, we are to draw all reasonable inferences which are
              deducible from the evidence in support of the factfinder’s decision in
              favor of that prevailing party.’ It does not matter if there is evidence
              in the record supporting findings contrary to those made by the WCJ;
              the pertinent inquiry is whether the evidence supports the WCJ’s
              findings.
3D Trucking Co., Inc., v. Workers’ Comp. Appeal Bd. (Fine & Anthony Holdings Int’l), 921 A.2d
1281, 1288 (Pa. Cmwlth. 2007) (quoting Waldameer Park, Inc. v. Workers’ Comp. Appeal Bd.
(Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003)) (citation omitted).


                                                 5
              disability is       discontinued      under     the     following
              circumstances:
                  a) Where the ‘employe is employed and receiving
                  wages’ ([Section] 306(a)(2) [of the Act)];
                  b) Where the ‘employe is incarcerated after a
                  conviction’ ([Section] 306(a.1) [of the Act)];
                  c) Where it has been determined that claimant’s
                  degree of impairment is less than fifty per centum
                  following receipt of 104 weeks of total disability, in
                  accordance with [Section] 306(a.2) [of the Act];[5]
                  d) Where ‘earning power’ has been established by
                  expert opinion, pursuant to [Section] 306(b)(2) [of
                  the Act] (also known as the ‘labor market survey’
                  process);
                  e) ‘After disability shall cease’ ([Section] 306(a)(1)
                  [of the Act]).
              11. Clearly, none of the above conditions exist here. The
              statute does not provide for discontinuance of temporary
              total disability based on monetary offsets against total
              disability benefits. Claimant remains in ‘total disability’
              status, as a matter of law. Section 306(d) [of the Act]
              provides that specific loss payments begin ‘at the end of the
              period of temporary total disability’. This is consistent with
              the concept that temporary total disability is a legal status,
              and is not defined by, or dependent upon, the receipt of a
              check directly from [an employer].
              12. Based on the evidence of record, this [WCJ] finds as
              fact that Claimant’s total disability benefits have not
              ‘ended’ solely because he does not receive a check from
              [Employer].
              13. Claimant’s alternative theory is that his temporary total
              disability benefits must be suspended because he has
              ‘removed himself from the work force’. The party seeking
              to suspend benefits bears the burden of proving that the

       5
         On June 20, 2017, the Pennsylvania Supreme Court declared Section 306(a.2) of the Act
unconstitutional. Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 161 A.3d 827 (Pa.
2017).
                                              6
            Claimant has voluntarily removed himself or herself from
            the workforce (i.e., retired) for reasons unrelated to the
            work injury. City of Pittsburgh v. [Workers’ Comp. Appeal
            Bd.] (Robinson), [6]7 A.3[d] 1194 (Pa. 2013)[.]
            14. Claimant has not presented any evidence that he
            voluntarily retired from the workforce. At the final hearing,
            Claimant’s counsel suggested that a deposition of Claimant
            would be taken to address this issue. However in his brief,
            Claimant suggests that he ‘admitted’ and ‘stipulated’ that he
            has left the workforce. A bilateral stipulation has not been
            entered into. This [WCJ] cannot make a finding of fact
            based on the representations of counsel. Further, this
            [WCJ] is highly skeptical of Claimant’s argument that he
            has ‘removed himself from the workforce’ now that it is in
            his interest to do so. Claimant received a pension beginning
            on July 7, 2007, according to the [Stipulation].
            Presumably[,] he had no intention of continuing to work at
            that point, but he did not argue at that time that he had
            removed himself from the workforce for reasons unrelated
            to the work injury. Obviously, it was not in his interest to
            do so at that point, as he was continuing to receive a
            disability check from [Employer].
            15. Based on the evidence of record, this [WCJ] finds as
            fact that Claimant has not met his burden of proving that his
            total disability benefits should be suspended.
            16. Based on the above, this [WCJ] finds as fact that
            Claimant is not entitled to begin receiving specific loss
            benefits.

WCJ 3/1/16 Dec. at 3-5 (emphasis added; footnote and bold emphasis omitted).
            The Board also declared that Coker’s reasoning applies here, stating:

            The reason Claimant is receiving no payment is because
            together the offset for receipt of a retirement payment,
            Social Security retirement benefits, and the subrogation
            interest in the third[-]party settlement total more than
            the amount of disability payment to which Claimant is
            entitled under the Act. As in Coker, this situation is
            different than a claimant who receives no payment because
            his total disability benefits have ended and he is no longer
            entitled under the Act to receive those benefits. Id.

                                         7
Board Dec. at 4-5 (emphasis added). The Board agreed with the WCJ that Claimant
remained totally disabled as a matter of law, and that there was no record evidence
support for Claimant’s position that he voluntarily retired from the workforce as of
April 30, 2014.
             Notably, Claimant does not challenge that his WC benefits are subject to
offsets, nor does he claim that the applied offset amounts are incorrect. Rather,
Claimant asserts that since he no longer received WC benefit payments as of April
30, 2014 because his disability ended or he voluntarily retired, his specific loss
benefit payments should have commenced as of that date.


                                Total Disability Status
             Section 306(d) of the Act clearly and unambiguously states that specific
loss payments “shall begin at the end of the period of temporary total disability . . . .”
77 P.S. § 513(25). Therefore, unless and until Claimant’s total disability status ends,
he is not entitled to receive his specific loss benefits. At the July 28, 2015 WCJ
hearing, Claimant’s counsel confirmed that Claimant “is totally disabled, but he’s not
getting any further checks.” Notes of Testimony, July 28, 2015, at 4; see also WCJ
Finding of Fact 11.
             Claimant did not challenge the offsets, nor offer valid legal support for
his position that his specific loss payments must commence as of April 30, 2014
because his total disability payments were offset to $0.00.          More importantly,
Claimant fails to recognize that he continues to be fully compensated for this total
disability status by the Employer-funded pension, Social Security, and third-party
settlement payments, rather than WC indemnity checks.
             This Court has ruled that “payment of specific loss benefits . . . may not
begin until disability payments are no longer due and owing.” Cmty. Serv. Grp. v.
Workers’ Comp. Appeal Bd. (Peiffer), 976 A.2d 594, 597 (Pa. Cmwlth. 2009)
                                            8
(emphasis added); see also Coker. Accordingly, regardless of whether Employer’s
April 30, 2014 Notice of WC Benefit Offset reduced Claimant’s WC benefit
payments to $0.00 after permissible offsets are applied, Claimant remains in total
disability status as a matter of law, and his total disability payments are still due and
owing (i.e., but for the offsets, Claimant would be receiving WC indemnity
payments). Only after Claimant’s total disability benefits are no longer due and
owing will he be entitled to collect his specific loss payments.
             Claimant    asserts     that   Sharon   Steel     Corporation   v.   Workers’
Compensation Appeal Board (Frantz), 790 A.2d 1084 (Pa. Cmwlth. 2002), rather
than Coker, controls the outcome of the instant matter. See Claimant Br. at 22.
However, in Sharon Steel as in Coker, this Court declared that Section 306(d) of the
Act mandates that specific loss payments only begin when total disability ends. In
Sharon Steel, the issue was whether a claimant could simultaneously receive specific
loss and partial disability benefits. The Court held that since Section 306(d) of the
Act on its face only limits the simultaneous payment of specific loss and total
disability benefits, a claimant could simultaneously receive specific loss and partial
disability benefits. Because partial disability payments are not at issue in the instant
appeal, Sharon Steel is factually distinguishable.
             Claimant states in his brief that “[t]otal disability status IS ‘dependent
upon receipt of a check.’”         Claimant Br. at 27.       He cites City of Scranton v.
Workmen’s Compensation Appeal Board (Rideski), 638 A.2d 944 (Pa. 1994), Turner
v. Jones & Laughlin Steel Corporation, 389 A.2d 42 (Pa. 1978), Acme Markets, Inc.
v. Workmen’s Compensation Appeal Board (Hopiak), 562 A.2d 419 (Pa. Cmwlth.
1989), and Frank Irey, Jr., Inc. v. Workmen’s Compensation Appeal Board
(Klemencic), 448 A.2d 647 (Pa. Cmwlth. 1982), in support of his position. See
Claimant Br. at 27.


                                             9
The Sharon Steel Court summarized those cases as follows:

Our Supreme Court interpreted Section 306(d) [of the Act] .
. . and its Turner decision in City of Scranton by indicating:
   Contrary to [the employer’s] arguments, Section
   306(d) [of the Act] merely sets the timetable for
   when payments of specific loss benefits are to
   begin. The section does not explain or define when
   an injured employee is entitled to payments or when
   a period of temporary total disability ‘ends’ but only
   requires that any additional payments for other
   injuries begin at the end of the temporary total
   disability. [The employer] argues, however, that
   we determined in Turner . . . , that the ‘end’ of a
   temporary total disability can only occur by an
   eventual healing or natural termination and that,
   without such an ‘end’ . . . the entitlement to specific
   loss benefits cannot ripen. This is a misreading of
   Turner.
City of Scranton, . . . 638 A.2d at 946 (emphasis added).
We also find our decision in Frank Irey, Jr., Inc. . . . ,
instructive. There, the claimant was awarded specific loss
benefits and partial disability benefits where he had
sustained the loss of the use of his left hand and separate
and distinct injuries to his face, mouth, left elbow and left
leg. Similarly, we held in Acme Markets, Inc. . . . , that a
claimant could receive specific loss benefits resulting from
one accident concurrent with total disability benefits that
were the result of another, separate accident. In the instant
matter, [the claimant] underwent a period of temporary total
disability, then subsequently returned to work. At the time
he returned to work, [the claimant] was eligible for partial
disability benefits, because his wages were below his pre-
injury wages. [The claimant’s] return to work ended his
period of temporary total disability, and he was eligible for
partial disability as well as specific loss benefits. This is
consistent with Section 1903(a) of the Statutory
Construction Act [of 1972], 1 Pa.C.S. § 1903(a), and with
current case law.


                             10
Sharon Steel, 790 A.2d at 1089 (footnote omitted). These cases clearly support the
WCJ’s decision that Claimant’s total disability status determines when his specific
loss payments commence, not whether he receives a WC indemnity check.
             Claimant further contends that if Employer does not have to pay his
specific loss benefits until his total disability status ends, he may never receive those
benefits, which would render the WCJ’s 9/12/08 Decision a nullity and
unconstitutionally deprive him of his property without due process. See Claimant Br.
at 28. The Coker Court acknowledged:

             The Court is sympathetic to the [c]laimant’s plight . . . . He
             may never receive the weeks of specific loss benefits to
             which he is entitled, if he remains totally disabled.
             However, we are bound by the express and unambiguous
             language of the statute, which specifically states that
             specific loss benefit payments do not begin until the
             period of total disability ends. [The c]laimant’s total
             disability has not ended and he is receiving in full the
             amount of employer[-]funded payments to which he is
             entitled under the Act.

Id. at 262 (emphasis added; footnote omitted).
             After thoroughly reviewing the record, this Court holds that the Board
properly upheld the WCJ’s determination that Claimant’s total disability status did
not end or even change as of April 30, 2014. Because Claimant remained eligible for
total disability benefits (whether or not subject to offset), the WC statutory language
clearly states he is not entitled to receive his specific loss payments as of that date.


                                       Retirement
             Pennsylvania law requires that “disability benefits must be suspended
when a claimant voluntarily leaves the labor market upon retirement.”              Se. Pa.
Transp. Auth. v. Workmen’s Comp. Appeal Bd. (Henderson), 669 A.2d 911, 913 (Pa.
1995); see also Robinson. A claimant has not voluntarily retired from the labor

                                            11
market if the retirement was caused by the work injury. Schmidt v. Workmen’s
Comp. Appeal Bd. (Fetch), 594 A.2d 812 (Pa. Cmwlth. 1991); see also Robinson.
Therefore, the party seeking to suspend benefits has the burden of proving that the
claimant has voluntarily retired for reasons unrelated to the work injury. 6 Robinson.
Moreover, receipt of a pension and/or Social Security benefits does not prove
voluntary retirement since the claimant remains eligible to simultaneously receive a
pension and/or Social Security benefits and WC benefits. See Day v. Workers’
Comp. Appeal Bd. (City of Pittsburgh), 6 A.3d 633 (Pa. Cmwlth. 2010).
              When the WCJ commenced the October 27, 2015 hearing, he
summarized the parties’ agreement that the record would be closed in 90 days and,
within that time, Claimant would give a deposition regarding his voluntary
retirement, and the parties would brief that issue.7 See Notes of Testimony, October
27, 2015, at 3-4, 7. However, according to the WCJ’s 3/1/16 Decision, Claimant did



       6
         Because an employer is typically the party seeking a suspension of WC benefits, the
employer usually has the burden of proof; however, in this case, since Claimant is seeking the
suspension, Claimant has the burden of proof.
       7
         As the July 28, 2015 WCJ hearing ended, the WCJ granted the parties 90 days to stipulate
or supply documentation that Claimant’s July 16, 2013 Impairment Rating Evaluation (IRE)
changed his disability status from total to partial, making him eligible to receive his previously-
awarded specific loss benefits. Claimant supplied the IRE. However, the WCJ ultimately
concluded:
              Claimant has submitted an [IRE] of Dr. Jyothi Chinta, M.D.
              performed on July 16, 2013, which he also cites in support of his
              contention that he is partially disabled, and is no longer totally
              disabled. However[,] that [IRE] was performed pursuant to the 6th
              Edition of the [American Medical Association’s (AMA)] Guides to
              [the Evaluation of] Permanent Impairment and is therefore invalid
              pursuant to Protz . . . .
WCJ 3/1/16 Dec. at 4 n.1. In Protz, our Supreme Court ruled that, by enacting Section 306(a.2) of
the Act, the General Assembly impermissibly delegated its legislative authority to the AMA;
thereby, violating article II, section 1 of the Pennsylvania Constitution, which requires that all
legislative power shall be vested in the General Assembly.
                                                12
not supply testimony regarding his retirement, no admission or stipulation appears of
record, and counsel’s representations to that effect were not evidence.8
             After reviewing the record, this Court holds that the Board properly
upheld the WCJ’s determination that Claimant failed to prove that he voluntarily
retired as of April 30, 2014 for reasons unrelated to the work injury. Because
Claimant remained eligible for total disability benefits (whether or not subject to
offset), he was not entitled to receive his specific loss payments as of that date.


                                       Conclusion
             Based on the foregoing, the Board’s order is affirmed.



                                        ___________________________
                                        ANNE E. COVEY, Judge




      8
        See Brady v. Workers’ Comp. Appeal Bd. (Morgan Drive Away, Inc.), 923 A.2d 529 (Pa.
Cmwlth. 2007) (counsel’s statements at an administrative proceeding are not evidence).
                                            13
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Cook,                           :
                        Petitioner     :
                                       :
                  v.                   :
                                       :
Workers’ Compensation Appeal           :
Board (Department of                   :
Transportation),                       :   No. 765 C.D. 2017
                      Respondent       :


                                     ORDER

            AND NOW, this 18th day of May, 2018, the Workers’ Compensation
Appeal Board’s May 12, 2017 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
