         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Dailey,                            :
                         Petitioner     :
                                        :
               v.                       :   No. 97 C.D. 2018
                                        :   Submitted: June 22, 2018
Workers' Compensation Appeal            :
Board (Commonwealth of                  :
Pennsylvania),                          :
                       Respondent       :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                        FILED: August 8, 2018

               In this appeal, we review an employer’s notice of workers’
compensation benefit offset against an employee’s disability pension benefits. John
Dailey (Claimant) petitions for review from an order of the Workers’ Compensation
Appeal Board (Board) that reversed a Workers’ Compensation Judge’s (WCJ) order
granting Claimant’s review offset petition, which challenged the calculation of the
pension benefit offset. Claimant argues the Board erred in reversing the WCJ’s
decision, which determined the Commonwealth of Pennsylvania (Employer) failed
to properly calculate the pension benefit offset. Based on our en banc decision in
Harrison v. Workers’ Compensation Appeal Board (Commonwealth of
Pennsylvania), 165 A.3d 1019 (Pa. Cmwlth. 2017), appeal denied, 179 A.3d 1 (Pa.
2018), we affirm the Board’s order denying Claimant’s review offset petition.


                                 I. Background
                In October 2013, Employer issued a notice of compensation payable
(NCP) recognizing Claimant suffered a lumbar sprain and strain in June 2013. The
NCP provided for indemnity benefits of $667.07 per week based on an average
weekly wage of $1,000.56. Claimant subsequently applied for and received a
disability pension with a retirement date of September 8, 2013. He was 68 years old
at that time.


                Before the WCJ, Claimant represented in his brief that on July 9, 2014,
Employer issued a notice of workers’ compensation benefit offset. The notice
indicated that as of August 2, 2014, a deduction of $163.43 per week would be taken
to offset disability pension benefits Claimant received, and Claimant’s indemnity
benefits would be suspended for 15.2 weeks to recoup an overpayment of $7,657.86
for the period from September 8, 2013 through August 2, 2014.1


                In July 2014, Claimant filed a review offset petition challenging the
calculation of the pension benefit offset. Shortly thereafter, he filed a penalty
petition alleging a unilateral cessation of indemnity benefits.2 Hearings ensued
before a WCJ.



       1
         The Board noted that factual assertions in briefs are not evidence. Sanders v. Workers’
Compensation Appeal Board (Marriott Corp.), 756 A.2d 129 (Pa. Cmwlth. 2000). However, it
explained, the notice of offset was not placed in evidence and the testimony did not otherwise
establish a rationale for Claimant’s allegation of a unilateral cessation of indemnity benefits. As
such, the Board accepted Claimant’s assertion as the only available narrative.
       2
         Claimant also filed two review petitions seeking to expand the description of the accepted
work injury. Additionally, Employer filed suspension and termination petitions. The WCJ granted
Claimant’s review petitions, expanding the scope of the accepted work injury and denied
Employer’s suspension and termination petitions. These determinations are not at issue in this
appeal.

                                                2
             Before the WCJ, Employer presented the testimony of Susan Hostetter,
the State Employees’ Retirement System’s (SERS) Director of Benefit
Administration (SERS Benefits Director) regarding the manner in which SERS
calculates the employer-funded part of Claimant’s pension. SERS Benefits Director
testified Claimant’s benefit is 2% multiplied by years of service multiplied by final
average salary multiplied by a class of service multiplier. Claimant elected a joint
survivor benefit so his survivor would continue to receive a benefit after his death.
Claimant’s service credit was 10.2045 years plus .6306 years of active duty in the
military, which he purchased. The employer-funded amount is calculated by first
determining the amount necessary to fund the employee’s benefit over his expected
lifetime. The employee contribution is known. The employee contribution plus
assumed investment returns on that contribution are subtracted from the total
funding needed. The remaining amount is the employer’s contribution. SERS
Benefits Director testified Claimant’s pension contribution was $40,718.58, and
Employer’s contribution was $61,059.82. The Employer’s contribution of
$61,059.82 is then “divide[d] … back through the cost of dollar annuity to come up
with an annual amount, $8,511.27. Divide that by 12, we get $709.27, which is the
monthly employer[-]funded amount ….” Reproduced Record (R.R.) at 221a. SERS
Benefits Director also testified she prepared an Explanation of the Calculation of
Monthly Employer Funded Amount, which explained the calculation of Claimant’s
maximum single life annuity (MSLA). That document revealed that Claimant’s
annual disability MSLA was $14,187.11, and his monthly disability MSLA was
$1,182.26.




                                         3
             Employer also presented the testimony of Brent Mowery (SERS
Actuary), an actuary employed by SERS and affiliated with a company known as
the Hay Group. SERS Actuary testified that the State Employees’ Retirement Code
(Retirement Code), 71 Pa. C.S. §§5101-5957, requires annual actuarial valuations
and an actuarial investigation, or actuarial experience study, every five years. The
actuarial experience study reviews the actuarial assumptions used in the annual
actuarial valuations. SERS Actuary explained SERS’ funding is typical of defined-
benefit pension funding. The funding sources are employer contributions and
employee contributions, which are commingled, as well as investment returns.
Based on the ongoing nature of the funding, it is not possible to identify the specific
amount of employer funding as to any individual participant in the system.


             SERS Actuary further testified that it is not possible to calculate a pro
rata share of investment returns by directly tracking returns on funds contributed by
the Commonwealth and individual employees. Employee contributions accumulate
until an employee’s retirement date. The total funding required is measured as of
that date and the employer’s responsibility is the remainder of the total funding
required. Both the employee and the employer contributions are assumed to earn
7.5% annually from that point forward.


             SERS Actuary agreed that SERS’ Comprehensive Annual Financial
Report (CAFR) for 2013 included a pie chart that showed the funds in the pension
fund over the last 10 years as 12% employer contributions, 13% member
contributions and 75% investment earnings. He explained that comparing the
percentages shown to the individual pension benefit offset calculation that applies



                                          4
to Claimant is “an apples and oranges comparison.” R.R. at 297a. Past and future
investment returns are taken into account by utilizing assumed investment returns.


             SERS Actuary also explained he could not state the percentage of
Claimant’s pay that Employer contributed into the fund. The percentage of payroll
contributed in the aggregate by all employers participating in SERS is known and
varies to meet the requirements determined through annual actuarial valuations.


             For his part, Claimant submitted a report authored by Adam Reese of
PRM Consulting Group (Claimant’s Actuary). Claimant’s Actuary testified the
accumulated value of Claimant’s contribution, $40,718.58, was sufficient to pay his
monthly benefit of $1,182.26 for at least three years and two months. Therefore, if
Claimant was to die before collecting his benefit for three years and two months, for
all practical purposes, Claimant would have funded 100% of his pension. Claimant’s
Actuary further noted SERS used an assumed life expectancy, which would be
inaccurate unless Claimant lived exactly 10.68 years after the initiation of his
pension.


             Claimant’s Actuary observed that employees who participate in SERS
for less than their vesting period are eligible for a refund of their contributions with
4% interest. Investment earnings over 4% are a source of funding not contributed
by an employer. Claimant’s Actuary assumed over 5,000 employees are hired each
year. Approximately 40% of those employees terminate non-vested. Using a new
hire salary of $40,000 and a 6.25% contribution rate, Claimant’s Actuary estimated
an investment gain on those employees’ contributions of over $1.5 million annually



                                           5
of non-employer funding that is not taken into account in the SERS calculation.
Claimant’s Actuary also stated that investment earnings over 4% on contributions of
employees who die non-vested before retirement are also a non-employer funding
source not accounted for in the SERS’ calculation. As a result, Claimant’s Actuary
opined the SERS formula overstates the portion of the benefit funded by the
employer.


               Ultimately, the WCJ found the testimony of SERS Benefits Director
credible in part. The WCJ rejected SERS Benefits Director’s explanation of the
calculation of the monthly employer-funded amount because it relied on actuaries’
calculations that did not comply with the Workers’ Compensation Act3 (Act) and
Section 123.8 of the Department of Labor & Industry’s (Department) regulations,
34 Pa. Code §123.8 (“Offset for pension benefits generally.”). Additionally, the
WCJ rejected SERS Actuary’s testimony as not credible. He found SERS Actuary’s
calculation did not comply with 34 Pa. Code §123.8(d), and his credibility was
undermined by his admission that he could not determine the rate at which the state
contributed to Claimant’s pension. The WCJ credited Claimant’s Actuary’s report.
Based on these determinations, the WCJ granted Claimant’s review offset petition.
Employer appealed.


               On appeal, the Board determined the WCJ’s reasons for rejecting the
testimony of SERS Benefits Director and SERS Actuary were erroneous. See
Commonwealth of Pa./Dep’t of Pub. Welfare v. Workers’ Comp. Appeal Bd.
(Harvey), 993 A.2d 270 (Pa. 2010); Pa. State Univ. v. Workers’ Comp. Appeal Bd.


      3
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.

                                               6
(Hensal), 911 A.2d 225 (Pa. Cmwlth. 2005) (holding that an employer can meet its
burden of proving the extent of its contribution to a claimant’s defined-benefit
pension by credible actuarial evidence; the employer need not identify actual
contributions to the claimant’s pension). As a result, the Board remanded for a
determination of Employer’s entitlement to an offset consistent with the directives
of those cases.


             On remand, the WCJ found Employer did not present credible evidence
to establish the correct calculation of the offset. The pension benefit offset was
calculated using the monthly amount Claimant would receive under the MSLA
option, $1,182.26. However, Claimant presented documentary evidence to show the
monthly benefit he actually receives is $923, not $1,182.26, based on the joint
survivor option he elected. Thus, the WCJ rejected Employer’s evidence as not
credible because Employer used the wrong amount to calculate the offset. As such,
the WCJ again granted Claimant’s review offset petition. Employer again appealed
to the Board.


             Ultimately, the Board reversed, explaining (with emphasis added):

                   [Employer] presented the testimony of [SERS
             Benefits Director]. [SERS Benefits Director] testified that
             Claimant elected the joint survivor benefit so his survivor
             would continue to receive a benefit after he died.
             Claimant’s annual MSLA was calculated as $14,187.11.

                   Claimant submitted into evidence a report of [his
             Actuary]. [Claimant’s Actuary’s] report states that
             Claimant earned a single life annuity disability benefit of
             $14,187.11 ($1,182.26 per month).



                                         7
                   On remand, Claimant submitted into evidence a
             copy of a SERS printout showing, among other things,
             benefits paid to Claimant for the period October 30, 2015
             through September 30, 2016. The gross amount of each
             payment is $920.14.

                    On remand, the WCJ found [SERS Benefits
             Director’s] testimony credible but found that the
             calculation of [Employer’s] contribution to Claimant’s
             pension was incorrect. He found [Claimant’s Actuary’s]
             report credible in the underlying proceeding.

                    Upon review, we agree that the WCJ’s rejection of
             [Employer’s] calculation of the pension benefit offset was
             erroneous. The WCJ rejected the calculation because
             [Employer] used the MSLA rather than the reduced joint
             survivor benefit amount elected by Claimant. However,
             the WCJ did not have the benefit of the Court’s decision
             in Harrison, holding that the employer is entitled to an
             offset based on the claimant’s MSLA regardless of the
             monthly amount paid solely to the claimant under the joint
             survivor election.

                    Neither Claimant nor his [Actuary] challenged the
             accuracy of the calculation of the MSLA. We therefore
             reverse the WCJ’s grant of Claimant’s [r]eview [b]enefit
             [o]ffset [p]etition.

Bd. Op., 12/20/17, at 4-5 (record citations omitted). Claimant now petitions for
review to this Court.




                                     II. Issue




                                         8
              On appeal,4 Claimant argues the WCJ’s decision, which determined
Employer failed to properly calculate the pension benefit offset, was proper as a
matter of law; as such, he asserts the Board erred in reversing that decision.


                                      III. Discussion
                                      A. Contentions
              Claimant contends that, contrary to the Board’s determination, the
WCJ’s decision was correct. He maintains that the law anticipates that the offset
amount is to be determined based on what a claimant actually receives. To that end,
he argues that statutory and regulatory provisions relating to the offset are worded
in the past or present tense, which lends support to the notion that the offset is based
on what is paid to a claimant rather than the maximum amount a claimant could
receive.


              In particular, Claimant asserts that Section 204(a) of the Act allows an
employer an offset for the payment of pension benefits received by an employee, to
the extent the pension benefits are funded by the employer. It states: “[T]he benefits
from a pension plan to the extent funded by the employer directly liable for the
payment of compensation which are received by an employe shall … be credited
against the amount of the award made under [the Act].” Pet’r’s Br. at 13 (quoting
77 P.S. §71(a)) (emphasis added). Additionally, Claimant contends, 34 Pa. Code
§123.8(a) states that an offset may be taken for “the net amount an employee receives
in pension benefits” and “[t]he offset may not apply to pension benefits to which an

       4
         Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed or whether constitutional rights
were violated. Harrison v. Workers’ Comp. Appeal Bd. (Commonwealth of Pa.), 165 A.3d 1019
(Pa. Cmwlth. 2017), appeal denied, 179 A.3d 1 (Pa. 2018).

                                              9
employee may be entitled, but is not receiving.” He maintains these provisions
indicate an offset is to be based on what is actually paid to a claimant, and prohibit
the application of an offset based on speculation.


             Claimant further argues this interpretation is consistent with
Philadelphia Gas Works v. Workers’ Compensation Appeal Board (Amodei), 964
A.2d 963 (Pa. Cmwlth. 2009), which similarly states that an employer is entitled to
a credit only for the net benefit a claimant receives. Thus, Claimant asserts, the
Board’s reversal of the WCJ’s decision here infers a legislative intent not articulated
in the above-referenced provisions and not consistent with prior decisions. Claimant
contends an employer or its insurer bears the burden of proof in a petition to review
offset proceeding. Dep’t of Pub. Welfare Polk Ctr. v. Workers’ Comp. Appeal Bd.
(King), 884 A.2d 343 (Pa. Cmwlth. 2005). And, he maintains, even allowing an
employer the benefit of not having to state with certainty the amount of the
employer-funded contribution, see Harvey; Hensal, Employer failed to meet its
burden here because a review of the evidence reveals Claimant did not receive the
monthly benefit amount Employer allegedly paid.


             Further, Claimant argues, Employer submitted evidence, through the
testimony of SERS Benefits Director and SERS Actuary that based on Claimant’s
pension of $1,182.26, according to the SERS formula, Employer’s offset amount is
$709.27. R.R. at 220a-22a, 231a-32a, 281a. But, according to the checks enclosed
with his brief to the Board, Claimant asserts, which he requested be admitted into
the record, he is receiving approximately $920 per month in pension benefits. Thus,
Claimant contends, Employer’s calculations are incorrect, which discredits the



                                          10
testimony of both SERS Benefits Director and SERS Actuary and gives weight to
the opinions of Claimant’s Actuary, who opined that the amount for which Employer
is seeking a credit is overstated and inaccurate.


             Claimant maintains that, although Harvey and Hensal state that an
employer need not prove the exact amount of its contribution and can rely on the
SERS formula, nothing in those cases excuses an employer from basing its
calculations on the correct amount of pension benefits a claimant receives. Claimant
argues that, at the very least, the employer should base its calculations on the correct
amount of pension benefits the claimant receives, and the evidence Employer
submitted establishing the offset here is incorrect.       Further, Claimant asserts,
Employer presented no testimony that allowed for the correct calculations. Thus,
Claimant contends, in the absence of new calculations or evidence from Employer
as to the amount of the offset, taking into consideration the fact that Claimant’s
pension is approximately $920, not $1,182, his review offset petition was properly
granted. Claimant maintains Employer did not meet its burden of establishing the
offset amount to which it would be entitled. As such, he argues, the Board’s decision
was in error and should be reversed.


                                     B. Analysis
             Section 204(a) of the Act authorizes an employer to offset a workers’
compensation payment by the amount of pension benefits, social security and
severance payments paid to the employee. It states, in relevant part (with emphasis
added):
             [T]he benefits from a pension plan to the extent funded by
             the employer directly liable for the payment of
             compensation which are received by an employe shall also


                                          11
            be credited against the amount of the award [of workers’
            compensation benefits] made under sections 108 and 306,
            except for benefits payable under section 306(c).


77 P.S. §71(a). The offset eliminates “double payment for the same loss of wages.”
City of Pittsburgh v. Workers’ Comp. Appeal Bd. (Wright), 90 A.3d 801, 811 (Pa.
Cmwlth. 2014). The Department adopted a regulation to implement Section 204 of
the Act. It states, in pertinent part: “Workers’ compensation benefits otherwise
payable shall be offset by the net amount an employe receives in pension benefits to
the extent funded by the employer directly liable for the payment of workers’
compensation.” 34 Pa. Code § 123.8(a) (emphasis added).


            In addition, under Section 5705 of the Retirement Code, 71 Pa. C.S.
§5705, an eligible beneficiary upon retirement could choose to receive either a
MSLA or a reduced annuity certified by the actuary to be actuarially equivalent to
the MSLA in accordance with one of four options. Hoffman v. State Emps.’ Ret.
Bd., 915 A.2d 674 (Pa. Cmwlth. 2006). Relevant here, Section 5705(a) of the
Retirement Code provides the following options:

            (1) Option 1.—A life annuity to the member with a
            guaranteed total payment equal to the present value of the
            [MSLA] on the effective date of retirement with the
            provision that, if, at his death, he has received less than
            such present value, the unpaid balance shall be payable to
            his beneficiary.

            (2) Option 2.—A joint and survivor annuity payable
            during the lifetime of the member with the full amount of
            such annuity payable thereafter to his survivor annuitant,
            if living at his death.

71 Pa. C.S. §5705(a) (1)-(2).


                                        12
             Here, Claimant did not elect to receive the life annuity Option 1.
Rather, he opted for a lower monthly payout under Option 2, which also provided
for a full amount survivor benefit for his spouse should he predecease her. Claimant
actually received, after deductions, approximately $920 per month.           This is
approximately $260 per month less than the MSLA option. Claimant argues
Employer should have been entitled to a monthly offset based on the amount
Claimant actually received rather than the MSLA. We rejected this argument in
Harrison.


             More particularly, in Harrison, this Court considered whether a
compensation offset should be based on the claimant’s net pension or the maximum
amount to which the claimant was entitled. There, as in this case, the claimant did
not elect to receive the MSLA option, but rather a lower monthly payout, which
provided for full survivor benefits for his spouse in the full amount of his annuity
should he predecease her. This Court affirmed the offset taken by the employer
based on the maximum monthly pension benefit available to the claimant.


             In so doing, we explained that Section 204(a) of the Act “focuses on
the extent to which benefits are funded by the employer.” Harrison, 165 A.3d at
1027 (quoting Harvey, 993 A.2d at 281). The record in Harrison established that the
claimant’s pension amount based on his election of the joint survivor benefit was the
actuarial equivalent of his MSLA. The claimant’s choice resulted in a lower monthly
pension amount so that the employer could fund a lifetime pension for both the
claimant and his wife. In other words, the employer’s funding obligation was not



                                         13
affected by the claimant’s choice. As such, “because [the] [e]mployer is partially
funding both the annuity to [the] [c]laimant and the survivor annuity for [the]
[c]laimant’s wife, [the] [e]mployer is entitled to an offset for [the] [c]laimant’s
MSLA regardless of the amount paid solely to [the] [c]laimant.” Id. at 1029 (citing
Harvey) (footnote omitted). Therefore, we concluded:

                   In sum, pursuant to Section 204(a) of the Act and
             34 Pa. Code §123.8(a), an employer is entitled to a
             workers’ compensation offset for pension benefits an
             employee receives to the extent funded by the employer.
             Here, [the] [c]laimant voluntarily chose a joint and
             survivor annuity which will require [the] [e]mployer to
             fund both his and his wife’s annuity benefits in an amount
             equivalent to [the] [c]laimant’s MSLA. 71 Pa. C.S.
             §5705(a); Hoffman. As such, it would be improper to
             deny [the] [e]mployer an offset for the full amount that it
             funded [the] [c]laimant’s MSLA. Section 204(a) of the
             Act; Harvey.

Id. (emphasis in original).


             Harrison is controlling here. Specifically, as in Harrison, Claimant did
not elect to receive his maximum monthly annuity here. Rather, like the claimant in
Harrison, Claimant chose a lower monthly payout in the form of a joint survivor
benefit so his survivor would continue to receive a benefit after his death. As SERS
Benefits Director explained, “[Claimant] chose a joint survivor option. So, if
[Claimant and his wife] don’t both die at the same time, the wife, or the survivor,
will receive the benefit for her lifetime.” R.R. at 229a (emphasis added). Claimant
makes no attempt to distinguish this case from Harrison. Under Harrison, Employer
is entitled to a workers’ compensation offset for the pension benefits it funded, and
the offset must be calculated on the basis of Claimant’s MSLA, not his net pension.


                                         14
As the Board aptly noted, Claimant does not challenge the calculation of his MSLA,
and, in his brief to this Court, Claimant does not challenge the calculation of the
Employer-funded portion of his monthly MSLA benefit. Rather, citing Philadelphia
Gas Works, he asserts the offset should be based on his net monthly pension.
However, in Harrison, we rejected the claimant’s reliance on Philadelphia Gas
Works; therefore, Claimant’s reliance on that case is unavailing here.


              Indeed, in Department of Corrections v. Workers’ Compensation
Appeal Board (Clapper) (Pa. Cmwlth., No. 1997 C.D. 2016, filed September 8,
2017), 2017 WL 3927215 at *4-*5 (unreported) (Leavitt, P.J.),5 appeal denied, 182
A.3d 428 (Pa. 2018), we explained (with underlined emphasis added):

                     In Philadelphia Gas Works, the claimant was
              receiving workers’ compensation benefits in the amount
              of $542 per week when he retired and began receiving a
              pension. The employer had fully funded the pension plan
              and took a weekly offset against the claimant’s workers’
              compensation benefits of $264.10. Five years later, the
              employer issued a second notice increasing the weekly
              offset to $334.83, by using the pre-tax amount of the
              claimant’s pension benefits to calculate the offset. The
              employer contended that it was too difficult to calculate
              the offset on the basis of the claimant’s post-tax pension
              because an individual’s tax is affected by many factors and
              changes from year to year. This Court agreed.
                     The holding in Philadelphia Gas Works turned on a
              Department regulation, which states as follows:

                      When Federal, State or local taxes are paid with
                      respect to amounts an employee receives in
                      unemployment compensation, Social Security (old
                      age), severance or pension benefits, the insurer
                      shall repay the employee for amounts previously
       5
         Pursuant to 210 Pa. Code §69.414(a), an unreported panel decision of this Court, issued
after January 15, 2008, may be cited for its persuasive value, but not as binding precedent.

                                              15
                     offset, and paid in taxes, from workers’
                     compensation benefits, when the offset was
                     calculated on the pretax amount of the benefit
                     received. To request repayment for amounts
                     previously offset and paid in taxes, the employee
                     shall notify the insurer in writing of the amounts
                     paid in taxes previously included in the offset.

            34 Pa. Code §123.4(f) (emphasis added). We concluded:

                     An employer may calculate the offset based on the
                     gross amount of the other benefit received by the
                     employee, subject to a correction once the employe
                     notifies the insurer he has paid the required tax.

            Philadelphia Gas Works, 964 A.2d at 966 (emphasis in
            original).

                   Here, [the] [c]laimant can choose not to have the tax
            withheld by SERS at any time. Likewise, he may seek
            reimbursement from [the] [e]mployer for the taxes he has
            paid, i.e., in any given year he did not receive a tax refund.
            In any case, the tax withholding is irrelevant to the
            calculation of [the] [e]mployer’s offset.

                   In sum, Harrison is dispositive. [The] [e]mployer is
            entitled to a workers’ compensation offset for the pension
            benefits it funded, and it must be calculated on the basis of
            the [c]laimant’s MSLA, not his net pension.

            For all of the above reasons, we discern no error in the Board’s reversal
of the WCJ’s decision granting Claimant’s review offset petition. Thus, we affirm
the Board’s order.




                                       ROBERT SIMPSON, Judge




                                         16
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Dailey,                             :
                          Petitioner     :
                                         :
               v.                        :   No. 97 C.D. 2018
                                         :
Workers’ Compensation Appeal             :
Board (Commonwealth of                   :
Pennsylvania),                           :
                      Respondent         :


                                       ORDER

               AND NOW, this 8th day of August, 2018, the order of the Workers’
Compensation Appeal Board is AFFIRMED.




                                        ROBERT SIMPSON, Judge
