              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Verizon Pennsylvania LLC,                 :
                 Petitioner               :
                                          :   No. 1766 C.D. 2016
             v.                           :
                                          :   Submitted: February 17, 2017
Workers’ Compensation Appeal              :
Board (Neugebauer),                       :
                 Respondent               :



BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                         FILED: July 13, 2017


             Verizon Pennsylvania, LLC (Employer) petitions for review of the
October 19, 2016 order of the Workers’ Compensation Appeal Board (Board), which
affirmed the order of a Workers’ Compensation Judge (WCJ) denying Employer’s
petition to review compensation benefit offset (review offset petition).
             The underlying facts of this case are not in dispute and were stipulated to
in an earlier proceeding. James J. Neugebauer (Claimant) sustained an injury to his
back while lifting a manhole cover in the course and scope of his employment on
August 18, 2014. At the time of the injury, Claimant was earning $2,057.80 per
week, thereby entitling him to the maximum compensation rate of $932.00 per week
in 2014. Claimant had filed a claim petition against Employer on November 3, 2014,
and had testified at a hearing held on December 10, 2014, relating to this petition.
Claimant acknowledged at this hearing that he had received short-term disability
benefits from Metropolitan Life, but these benefits ended in November 2014. The
parties agreed to preserve the right to litigate any potential credit for these benefits at
a later date. Claimant returned to work full time, with no wage loss, on March 9,
2015. Employer agreed to pay Claimant for the lost time period of August 22, 2014,
through March 9, 2015, at the maximum compensation rate of $932.00 per week, a
total of 28 weeks and 4 days of lost pay totaling $27,334.66, with interest. Employer
also agreed to pay all of Claimant’s reasonable, necessary, and work-related medical
bills. As of March 9, 2015, Claimant’s benefits would be suspended. (WCJ’s
Finding of Fact No. 4.)
             On September 16, 2015, Employer filed its review offset petition
seeking a credit for the short-term disability benefits which it fully funded and which
Claimant admitted receiving during the course of the earlier litigation. Claimant filed
an answer denying the allegations and requesting unreasonable contest attorney fees.
The matter was assigned to the WCJ, who proceeded with hearings.
             At these hearings, Employer presented the testimony of John Meyer, a
workers’ compensation manager for Employer.             Meyer described his duties as
overseeing Employer’s third-party administrator, Sedgwick Claims Management
Services, Inc. (Sedgwick), and the return-to-work efforts of injured employees.
Meyer noted his familiarity with Employer’s plan regarding short-term disability
benefits and Claimant’s previous testimony that he received the same. However,
Meyer stated his belief that these benefits were paid for the period from August 30,
2015, through November 26, 2015. He stated that Claimant received $15,784.20 in
short-term disability benefits. Meyer denied knowledge of any contract term that



                                            2
would allow Claimant to keep his short-term disability benefits and also receive
workers’ compensation benefits. (Reproduced Record (R.R.) at 9a-11a.)
             Employer thereafter proceeded to submit two exhibits into evidence,
without objection from Claimant. The first exhibit included the WCJ’s decision in
the earlier litigation, premised upon the parties’ stipulation and dated July 31, 2015,
and the second exhibit included a transcript of Claimant’s testimony from the
December 10, 2014 hearing wherein he acknowledged receiving short-term disability
benefits.   In this testimony, Claimant acknowledged that he received short-term
disability benefits from Metropolitan Life but noted that the same had been
terminated by the time of the hearing. However, Claimant did not know if Employer
fully funded these benefits. Claimant later testified that he thought that the short-term
disability benefits ceased around November 26, 2014. (R.R. at 11a-12a, 43a, 46a.)
             On cross-examination, Claimant explained that the amount of his short-
term disability benefits varied week to week and could not recall exactly when he
started receiving these benefits. When asked how long such benefits would last under
the collective bargaining agreement between Employer and the union representing the
employees, Claimant noted his belief that the duration of such benefits was dependent
upon the number of years of service. (R.R. at 48a-49a.)
             By decision and order dated March 30, 2015, the WCJ denied
Employer’s review offset petition. The WCJ concluded that Employer failed to meet
its burden of proving entitlement to a credit for short-term disability benefits paid to
Claimant. While the WCJ generally credited Meyer’s testimony, she noted that such
testimony indicated that Claimant received short-term disability benefits during the
period from August 30, 2015, through November 26, 2015, a different time period
than the compensable time period for Claimant’s disability recognized in the parties’



                                           3
earlier stipulation of facts, i.e., August 22, 2014, through March 9, 2015. The WCJ
also concluded that Employer failed to establish an entitlement to a future credit
against Claimant’s workers’ compensation benefits and that Employer’s contest was
reasonable. Employer appealed to the Board, but the Board affirmed.
              On appeal to this Court,1 Employer argues that the Board erred in
affirming the WCJ’s decision and describing the record as vague regarding any
overlap dates between Claimant’s receipt of payments of short-term disability
benefits and workers’ compensation benefits. Employer also argues that a remand is
warranted so as not to deprive Employer of the equal protection and due process of
the law. We agree.
              Section 319 of the Workers’ Compensation Act (Act), Act of June 2,
1915, P.L. 736, as amended, 77 P.S. §671, provides in pertinent part, as follows:

              Where an employe has received payments for the disability
              or medical expense resulting from an injury in the course of
              his employment paid by the employer or an insurance
              company on the basis that the injury and disability were not
              compensable under this act in the event of an agreement or
              award for that injury the employer or insurance company
              who made the payments shall be subrogated out of the
              agreement or award to the amount so paid, if the right to
              subrogation is agreed to by the parties or is established at
              the time of hearing before the referee or the board.




       1
          On appeal, our scope of review is limited to determining whether findings of fact are
supported by substantial evidence, whether an error of law has been committed, or whether
constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S.
§704; Meadow Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d
214, 261 n.3 (Pa. Cmwlth. 2006).




                                               4
            In this case, the parties stipulated in the underlying litigation of
Claimant’s claim petition as to Claimant’s entitlement to workers’ compensation
benefits for the closed period from August 22, 2014, through March 9, 2015. The
parties further stipulated that Claimant received short-term disability benefits which
ended sometime in November 2014, and that Employer was preserving its right to
litigate a potential credit for the payment of these benefits in the future. Indeed,
Claimant acknowledged during a December 10, 2014 hearing in the underlying
litigation that he had received short-term disability benefits from Metropolitan Life
and that these benefits ceased around November 26, 2014.
            Consistent with the preservation of its right in the stipulation, on
September 16, 2015, Employer filed its review offset petition seeking a credit for the
short-term disability benefits which it allegedly fully funded and which Claimant
admitted receiving during the course of the earlier litigation. In a review offset
proceeding, the employer claiming a benefit offset bears the burden of proving its
entitlement to a credit. Glaze v. Workers’ Compensation Appeal Board (City of
Pittsburgh), 41 A.3d 190, 196 (Pa. Cmwlth. 2012). More specifically, the employer
bears the burden of proving the extent to which it funded the payments at issue,
which may include actuarial evidence. Id.
            In support of its review offset petition, Employer presented the
testimony of Meyer, and introduced two exhibits, the WCJ’s earlier July 31, 2015
decision and the transcript of Claimant’s testimony at the December 10, 2014
hearing. While Meyer testified as to his belief that Claimant received short-term
disability benefits for the period from August 30, 2015, through November 26, 2015,
totaling $15,784.20, it is clearly evident that Meyer simply confused the year in
which these benefits were paid. Indeed, Claimant admitted at the December 10, 2014



                                            5
hearing that he received short-term disability benefits that ceased as of November 26,
2014, and the parties stipulated that Claimant had in fact returned to full-time
employment as of March 9, 2015.
             Moreover, in the present matter, Claimant introduced an exhibit entitled
“Your Disability Benefits,” which described the multiple disability plans offered to
employees by Employer, including accident/short-term disability benefits. (R.R. at
80a-115a.) This document reflects that a full-time employee is covered for short-
term disability benefits as of the first day of work. (R.R. at 87a.) Importantly, this
document further provides that Employer will pay the full costs of an employee’s
coverage under the plans, R.R. at 88a, and that “[i]f you are eligible for any Workers'
Compensation or other state-mandated disability payments, your Verizon Plan
benefits may be reduced by these amounts,” R.R. at 91a. Historically, an employer’s
right to subrogation was premised on prohibiting a claimant from receiving a double
recovery for the same injury. See, e.g., Murphy v. Workers' Compensation Appeal
Board (City of Philadelphia), 871 A.2d 312, 317 (Pa. Cmwlth. 2005).
             Contrary to Claimant’s argument, Employer is not seeking a remand to
have a proverbial second bite at the apple. Rather, Employer is seeking a remand to
correct the Board’s erroneous description of the record in this matter as being vague
regarding the overlap between Claimant’s receipt of payments of short-term disability
benefits and workers’ compensation benefits.       The record in this case includes
Claimant’s admission that he received short-term disability benefits in 2014 and that
such benefits ended during the period in which he was also receiving workers’
compensation benefits. Both the WCJ and the Board failed to reconcile Claimant’s
admissions with the other evidence of record, including the short-term disability plan




                                          6
funded solely by Employer and Meyer’s obviously mistaken reference to Claimant’s
receipt of short-term disability benefits in 2015 instead of 2014.2
                Accordingly, the order of the Board is vacated and the matter is
remanded to the Board, with further instruction to remand to the WCJ, to reconcile
the evidence and admissions noted above with regard to Claimant’s receipt of short-
term disability benefits, to permit the presentation of additional evidence, if
necessary, and to issue new findings of fact and conclusions of law with respect to
Employer’s entitlement to a credit for the short-term disability benefits paid to
Claimant.




                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge




       2
          Claimant also suggests that Employer’s request for a remand may also be barred by the
principles of res judicata and/or collateral estoppel. However, we do not believe that such
principles apply given the lack of a final judgment in this action or a final resolution of the
dispositive issue herein.



                                              7
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Verizon Pennsylvania LLC,                :
                 Petitioner              :
                                         :    No. 1766 C.D. 2016
            v.                           :
                                         :
Workers’ Compensation Appeal             :
Board (Neugebauer),                      :
                 Respondent              :


                                     ORDER


            AND NOW, this 13th day of July, 2017, the order of the Workers’
Compensation Appeal Board (Board), dated October 19, 2016, is hereby vacated
and the matter is remanded to the Board, with further instruction to remand to the
Workers’ Compensation Judge, for the presentation of additional evidence, if
necessary, and new findings of fact and conclusions of law with respect to the
entitlement of Verizon Pennsylvania, LLC, to a credit.
            Jurisdiction relinquished.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Verizon Pennsylvania LLC,                 :
                 Petitioner               :
                                          :
              v.                          :    No. 1766 C.D. 2016
                                          :    Submitted: February 17, 2017
Workers’ Compensation Appeal              :
Board (Neugebauer),                       :
                 Respondent               :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION
BY PRESIDENT JUDGE LEAVITT                                         FILED: July 13, 2017

              I respectfully dissent. Verizon Pennsylvania, LLC (Employer) had
ample opportunity to present evidence in support of its petition to review
compensation benefit offset. It failed to do so. In ordering a remand, the majority
grants Employer the “proverbial second bite at the apple” to which it is not
entitled. Emery Worldwide v. Unemployment Compensation Board of Review, 540
A.2d 988, 990 (Pa. Cmwlth. 1988).
              James J. Neugebauer (Claimant) and Employer stipulated that
Claimant suffered a work injury and was entitled to full disability benefits from
August 22, 2014, through March 9, 2015, when Claimant returned to work full-
time with no wage loss.1 The parties also stipulated that Claimant received short-


1
  Claimant, a 27-year employee, injured his back removing a manhole cover. When Employer
refused to acknowledge liability for the injury, Claimant filed a claim petition. The parties
settled the litigation with a stipulation.
term disability benefits from Metropolitan Life that ended in November 2014, and
they agreed to preserve Employer’s right to litigate a potential short-term disability
credit. The stipulation was approved by the Workers’ Compensation Judge (WCJ)
on July 31, 2015.
             On September 16, 2015, Employer filed a review offset petition,
arguing that Claimant had received short-term disability benefits that were fully
funded by Employer. At the hearing before the WCJ, Employer presented the
testimony of one witness, John Neyer, a manager for Employer. His testimony
was as follows:

             [Employer’s counsel:] Do you know the weeks [Claimant]
             received [short-term] disability benefits?
             [Neyer:] It ended in November, I believe, August through
             November, I think.
             [Employer’s counsel:] I have August 30, 2015 through
             November 26, 2015. Does that sound right?
             [Neyer] Yes.
             [Employer’s counsel:] Do you know the total of the short-term
             disability that [C]laimant received?
             [Neyer:] During that period, I think, $15,000, roughly.
             [Employer’s Counsel:] I have $15,784.20. Does that sound
             correct?
             [Neyer:] Yes.

Notes of Testimony, 1/20/2016, at 4 (N.T. ___); Reproduced Record at 10a (R.R.
__). Employer also introduced two exhibits into evidence: (1) the WCJ’s decision
of July 31, 2015, approving the parties’ stipulation, and (2) the transcript of



                                       MHL-2
Claimant’s testimony from the December 10, 2014, claim petition hearing.
Employer did not explain the relevance of these exhibits.
             Claimant did not cross-examine Neyer. Claimant expressed surprise
at Neyer’s testimony and asked to reserve the right to cross-examine him at a later
date. The WCJ advised Claimant that this was the final hearing, but gave Claimant
14 days to submit additional evidence. The WCJ stated that the record would be
closed in 14 days and the parties were to file briefs “within 30 days of your receipt
of today’s transcript.” N.T. 7; R.R. 13a.
             On April 1, 2016, the WCJ issued a decision denying Employer’s
review offset petition.     Therein, the WCJ noted that following the hearing,
Claimant submitted a contingent fee agreement; litigation costs; and a Summary
Plan-Disability Benefits document describing Employer’s disability benefits.
Claimant Exhibit C-2; R.R. 80a-115a.
             The WCJ found that the period during which Claimant collected
short-term disability benefits, i.e. August 30, 2015, through November 26, 2015,
differed from the time period Claimant was deemed disabled, i.e., August 22,
2014, through March 9, 2015. Neyer’s testimony was Employer’s only evidence
on the period of claimant’s short-term disability. There was no evidence of record
to show that Claimant received short-term disability benefits in lieu of
compensation during the time period from August 22, 2014, through March 9,
2015. The WCJ concluded, simply, that Employer did not sustain its burden that it
was entitled to a credit.
             On appeal, the Board agreed with the WCJ’s conclusion. It rejected
Employer’s argument that Claimant’s testimony was sufficient to establish




                                      MHL-3
Employer’s entitlement to a subrogation credit.2                The Board observed that
Claimant did not know when he began receiving benefits, the amount of benefits
he received or whether the benefits were fully funded by Employer. As such, the
Board found Claimant’s testimony was too vague to meet Employer’s evidentiary
burden and affirmed the WCJ.
              The majority accepts Employer’s argument that a remand is
warranted. I disagree. In a review offset proceeding, the employer has the burden
of proving its entitlement to a credit and the extent to which it funded the plan at
issue. Glaze v. Workers’ Compensation Appeal Board (City of Pittsburgh), 41
A.3d 190, 196 (Pa. Cmwlth. 2012).               Herein, Employer did not present any
documentary evidence showing the extent to which it funded the disability benefit
plan, the amount of benefits paid to Claimant, or the duration of the payments.
Instead, it relied on the testimony of Neyer, who related that Claimant received
short-term disability payments over a period of time that did not coincide with the
stipulated workers’ compensation disability period.
              The WCJ gave Employer 30 days following receipt of the transcript to
file a brief. Had Employer examined the transcript at that time and discovered the
discrepancy, it could have requested that the WCJ reopen the record for additional


2
   Employer also claimed on appeal to the Board that the WCJ erred by allowing Claimant to
offer the Summary Plan-Disability Benefits document into evidence after the close of the record.
Employer complained the document was “not documented, authenticated, or relevant on its
surface.” Employer letter to WCJ, Certified Record No. 15. Because the Summary is not dated,
it is not known if it was current when Claimant sustained his injury. The Board did not address
these complaints.
       The majority quotes portions of the Summary. See R.R. 87a-88a, 91a. The Summary was
apparently prepared for national use. It refers to a “state disability” plan for which premiums
may be withheld from “your pay.” R.R. 88a. The Summary is not illuminating on the facts that
Employer had to prove in the offset proceeding.


                                           MHL-4
evidence.      Sharkey v. Workers’ Compensation Appeal Board (Tempo,
Incorporated), 739 A.2d 641, 644 (Pa. Cmwlth. 1999) (“It is well established that a
WCJ has discretion to reopen the record, once closed, and such a decision will be
not reversed by this Court absent an abuse of discretion.”). Employer also could
have requested a remand in its appeal to the Board.                Puhl v. Workers’
Compensation Appeal Board (Sharon Steel Corporation), 724 A.2d 997, 1002 (Pa.
Cmwlth. 1999) (Board may “exercise its discretion to order a remand of a case
where the interests of justice necessitate that result.”). Employer did neither. Only
in its appeal to this Court, for the first time, did Employer request a remand to
correct the record.
              The majority states that “Employer is not seeking a remand to have a
proverbial second bite at the apple[]” but “to correct the Board’s erroneous
description of the record in this matter as being vague ....” Majority Op. at 6. This
statement is contradictory. The Court cannot conclude that the Board erred in
describing the record as vague and also conclude that a remand is necessary
because the record is insufficient to grant a credit. If the record is not vague, then
there is no need for a remand. If a remand for new evidence is necessary, then the
Board did not err in holding that Claimant’s vague testimony did not make
Employer’s case. In either case, a remand is inappropriate. The majority’s remand
for new evidence is ordered for the sole purpose of allowing Employer a second
chance. Appellate review corrects errors of the tribunal below; it does not correct
errors of litigants.
              In sum, Employer failed to meet its evidentiary burden and took no
steps to correct or amend the record before the WCJ or the Board. This Court does
not permit a litigant to raise new issues in its petition for review, nor do we order a


                                       MHL-5
remand to correct a record a litigant had every opportunity to make below.
Williams v. Workers’ Compensation Appeal Board (Montgomery Ward), 562 A.2d
437, 440 (Pa. Cmwlth. 1989); Emery Worldwide, 540 A.2d at 990.
           Because the Board did not err, I would affirm its adjudication.

                                 _____________________________________
                                 MARY HANNAH LEAVITT, President Judge




                                    MHL-6
