                  IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Personal Health Care, Inc. and                  :
UPMC Health Benefits, Inc.                      :
DBA WorkPartners,                               :
                  Petitioners                   :
                                                :    No. 1718 C.D. 2019
                      v.                        :
                                                :    Submitted: April 24, 2020
Workers' Compensation Appeal                    :
Board (Cropper),                                :
                 Respondent                     :

BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE J. ANDREW CROMPTON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                                 FILED: July 10, 2020


                Personal Health Care, Inc., (Employer) petitions for review from the
November 13, 2019 order of the Workers’ Compensation Appeal Board (Board)
affirming the decision of a Workers’ Compensation Judge (WCJ), which granted
Wanda Cropper’s (Claimant) claim petition (Petition) under the Workers’
Compensation Act (Act).1 Upon review, we affirm.2




       1
           Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4-2501-2710.

       2
          Prior to the present disposition, Employer and UPMC Health Benefits, Inc. (Insurer) filed a
request for supersedeas. On February 21, 2020, this Court concluded that Employer and Insurer failed
to show that they were entitled to supersedeas under the test set forth in Pennsylvania Public Utility
Commission v. Process Gas Consumers Group, 467 A.2d 805, 808-809 (Pa. 1983).
                               Facts and Procedural History
                We begin by noting that the issue in this case turns on whether Employer
is entitled to a credit against Claimant’s compensation award due to the fact that she
receives Social Security benefits. With that in mind, we turn to the factual background
of this case. On June 28, 2018, Claimant filed her Petition, which alleged that she
suffered a new work injury, or aggravated a prior lower back injury, on June 1, 2018.
(Reproduced Record (R.R.) at 4a-8a.)3 Employer Answered the Petition on July 18,
2018. (R.R. at 12a-20a.) This matter was eventually heard before a WCJ who issued
a decision and corresponding order on May 31, 2019. (R.R. at 32a.) The WCJ issued
the following findings, in relevant part, as follows:

           1. [Claimant] filed a [Petition] alleging that she either sustained
              a new injury or aggravated a prior lower back problem in the
              course of employment with [Employer] on [June, 1, 2018.]
              Claimant seeks payment of indemnity and medical benefits
              in addition to unreasonable contest counsel fees. The
              petition was assigned and served on the parties by [n]otice
              dated [July 2, 2018.]

           2. [Employer] filed an [a]nswer to the [Petition] essentially
              denying the material allegations.

           3. Pursuant to a [June 25, 2018] Notice of Workers’
              Compensation Denial (Denial), benefits were declined
              because [Employer alleged that] Claimant did not suffer a
              work-related injury.
           4.
                   a) Claimant is 62 years of age and beginning in
                      November 2017, worked as a certified nursing
                      assistant (CNA) for [Employer.] She provided
                      home care for clients including bathing, turning,

       Employer’s reproduced record does not include the lower case “a” as required by Pa.R.A.P.
       3

2173. Accordingly, we have demarcated the lower case “a” in our citations to the reproduced record.


                                                2
                     repositioning, light     housekeeping,   laundry,
                     meals[,] and errands.

                b) On [June 1, 2018,] Claimant pulled something in
                   her back [while] repositioning a bedridden client.

                                             ***

                j) Claimant cannot return to work because of her
                   injury. She cannot bend or lift. The physical
                   demands of the job are beyond her capabilities.

                k) Claimant receives [S]ocial [S]ecurity retirement
                   benefits. She had to take early retirement because
                   she had no income. She applied for these benefits
                   after [June 1, 2018.]

                                             ***

         11. Claimant’s counsel agrees to the figures contained in the
            Statement of Wages [which] indicates an average weekly
            wage of $162.78 with a corresponding weekly compensation
            rate of $146.50.

         12. The [January 15, 2019] letter of the Social Security
            Administration [(Social Security Letter)] documents that
            Claimant has received social security disability benefits
            since December 2018.

(Findings of Fact (F.F.) Nos. 1-4(a)-(c),(j),(k), 11, 12.) The WCJ concluded that
Claimant sustained her burden of proving that she sustained a work-related injury and
resulting disability, and that Employer sustained its burden of proving a reasonable
contest. (Conclusions of Law (C.L.) 2-3.) Employer appealed to the Board on June
10, 2019, maintaining that the WCJ failed to award an offset against the benefits
awarded to Claimant due to her receipt of Social Security retirement or old age benefits.
(R.R. at 34a-37a.)


                                              3
             The Board issued its decision on November 13, 2019, addressing the sole
issue of “whether the WCJ erred by not awarding Employer an offset against the award
of workers’ compensation benefits based on Claimant’s receipt of Social Security
benefits.” (Board’s op. at 1.) In its decision, the Board points out that

             Claimant testified: “I’m getting my retirement. I had to do
             an early retirement, because I have no income.” [(Notes of
             Testimony 8/22/18 (N.T.) at 71-72; R.R. at 194a-95a.)] She
             further testified: “I had to retire – take – what do you call it?
             I don’t know even what it’s called.” [(N.T. at 72; R.R. at
             195a.)] When asked if she removed herself from the work
             force due to her age, Claimant responded: “I’m not removed
             from the work force. I have to have an income in order to
             live . . . I have bills to pay.” [(N.T. at 73; R.R. at 196a.)]
(Board’s op. at 1.) The Board pointed out that Employer submitted the Social Security
Letter into evidence, which identified the type of benefit she was “entitled to [as]
monthly disability benefits.” (Board’s op. at 2 (citing R.R. at 446a.)) The Board also
pointed out that the WCJ’s decision did not award Employer an offset with regard to
Claimant’s Social Security benefits. (Board’s op. at 2.)
             The Board explained that although Claimant testified with regard to what
type of Social Security benefit she received, “her testimony was only that of a layperson
without expertise about Social Security, and her overall testimony was not unequivocal
as to what benefit she received.” (Board’s op. at 4.) The Board determined that the
WCJ did not specifically credit Claimant’s testimony with regard to what type of Social
Security benefits she receives, and that with regard to the Social Security Letter, there
was no formal stipulation between the parties as to the meaning of its contents. Id.
However, the Board concluded that the Social Security Letter spoke for itself by
explicitly denoting that Claimant was receiving “monthly disability benefits,” and
failing to mention retirement or old age benefits. Id. Nevertheless, the Board asked


                                            4
Claimant to submit evidence to clarify the nature of her Social Security benefits. Id. at
5. Claimant submitted a Notice of Award from the Social Security Administration,
which explained that she was entitled to monthly disability benefits. Id. According to
the Board, the Notice of Award stated that “[w]e [(the Social Security Administration)]
are writing to let you know that you are entitled to monthly disability benefits from
Social Security.”4 Id. Accordingly, based on the documentary evidence, the Board
concluded that the WCJ’s finding that Claimant was receiving Social Security
disability benefits was supported by substantial evidence and Employer was not
entitled to an offset against Claimant’s benefits. Id. Employer appealed to this Court.


                                            Discussion
               On appeal,5 Employer raises the sole issue of “whether the [Board] erred
in affirming the WCJ’s order in not granting [Employer] a credit against an award of
compensation based on [Claimant’s] receipt of Social Security [retirement or] old age
benefits.” (Employer’s Br. at 4.) In support, Employer argues that under section 204


       4
         As explained in the February 21, 2020, memorandum opinion previously filed in this case,
the Board’s November 13, 2019 opinion indicates that it sought additional information from Claimant
regarding the nature of the Social Security benefits she was receiving. The Board indicates that
Claimant submitted a January 9, 2019 Notice of Award from the Social Security Administration.
However, as we explained before, this letter, not to be confused with the Social Security Letter
mentioned above, does not appear in the certified record, and we will not consider it in this
disposition. “An appellate court may not consider documents that are not part of the certified record.”
Township of Neshannock v. Kirila Contractors, Inc., 181 A.3d 467, 472 (Pa. Cmwlth. 2018) (citing
Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011)).

       5
         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, 216 n.3 (Pa. Cmwlth.
2006).



                                                  5
of the Act, 77 P.S. §71(a), if a claimant is receiving Social Security retirement or old
age benefits, a 50% credit must be made against workers’ compensation benefits.
Employer maintains that Claimant testified that she had to take an early retirement from
Social Security, and that she indicated the type of benefit she received was for
retirement. Employer also argues that counsel agreed on the record that the information
from the Social Security Administration pertained to retirement benefits.6 Thus,
Employer maintains that the WCJ should not have found that Claimant was receiving
Social Security disability benefits. Employer argues that there was no evidence that
Claimant applied for Social Security disability benefits or that she was mistaken as to
what she was testifying. Moreover, Employer maintains that even though the Social
Security Letter states that Claimant was entitled to disability benefits, it did not indicate
if she was receiving such a benefit. Accordingly, Employer argues that the Board
erroneously concluded substantial evidence existed to support the conclusion that
Claimant was receiving Social Security disability benefits.
              In response, Claimant maintains that under our decision in Caputo v.
Workers’ Compensation Appeal Board (Cmwlth. of Pa.), 34 A.3d 908, 912 (Pa.
Cmwlth. 2012), although an employer is entitled to a 50% offset against a workers’
compensation award if a claimant receives Social Security retirement benefits, under
Ropoch v. Workers’ Compensation Appeal Board (Cmwlth. of Pa./DPW), 941 A.2d
726, 728 (Pa. Cmwlth. 2008), no such offset applies to Social Security disability
benefits. Claimant maintains substantial evidence existed to support the WCJ’s finding
that she has received social security disability benefits since December 2018.
Specifically, Claimant points to the language in the Social Security Letter that clearly
states that she is “entitled to monthly disability benefits.” (R.R. at 446a.) In response

       6
        Despite any agreement between the parties on the record, no binding stipulation appears to
have been entered between the parties.


                                                6
to Employer’s arguments that Claimant clearly testified she was receiving a retirement
benefit, Claimant argues that her testimony was equivocal.                   However, Claimant
maintains that despite her testimony, the Social Security Letter unequivocally referred
to disability benefits and made no mention of retirement benefits. Claimant argues that
the WCJ properly credited the documentary evidence over Claimant’s testimony.
               The parties do not appear to dispute the applicable law. Section 204(a) of
the Act, provides, in relevant part, that “[f]ifty per centum of the benefits commonly
characterized as “old age” benefits under the [Act] shall also be credited against
the amount of the payments made under sections 108 and 306[7] . . . .” 77 P.S.
§71(a) (emphasis added). “In other words, an employer is entitled to a credit for fifty
percent of old age Social Security benefits against workers’ compensation disability
benefits.” Muir v. Workers’ Compensation Appeal Board (Visteon Systems LLC), 5
A.3d 847, 851 (Pa. Cmwlth. 2010). Furthermore, the plain language of section 204(a)
enumerates that an offset only applies to Social Security old age benefits, and thus, the
same does not apply to a claimant’s receipt of Social Security disability benefits.8
               This principle is illustrated in this Court’s decision in Ropoch; although
Ropoch considered a different issue, its logic is illustrative here. In that case, the
claimant received workers’ compensation benefits, and the employer filed for an offset
from the date that the claimant’s Social Security disability benefits were converted to
Social Security old age benefits by operation of law, due to the claimant attaining the
age of 65 and 6 months. Ropoch, 941 A.2d at 726. We concluded that the plain

       7
        77 P.S. §§27.1, 511-514, added by the Act of June 24, 1996, P.L. 903; 77 P.S. §71(a), added
by the Act of June 24, 1996, P.L. 350.

       8
        There is also no dispute that Claimant had been receiving Social Security disability benefits
up through April 10, 2006, at which point the Social Security disability benefits ceased and Claimant
began receiving Social Security old age benefits by operation of law. See 42 U.S.C. §423(a)(1)(B)
and 42 U.S.C. §416(i)(2)(d). Ropoch, 941 A.2d at 726 n.1.


                                                 7
language of section 204(a) required an offset for Social Security old age benefits, and
because the claimant’s Social Security disability benefits, converted to Social Security
old age benefits, the employer was entitled to an offset on the day that the benefits
converted.     Id. at 728. Accordingly, there is to be no doubt that the restriction in
section 204(a) of the Act applies only to Social Security old age benefits, not Social
Security disability benefits. See also Consol Pennsylvania Coal Company/Bailey Mine
Extension and East Coast Risk Management, LLC v. Workers’ Compensation Appeal
Board (Johnson) (Pa. Cmwlth., Nos. 314, 370 C.D. 2019, filed Apr. 24, 2020)
(unreported)9 slip op. at 8 n.7. (“Section 204(a) of the Act does not provide for an offset
of workers’ compensation benefits following the receipt of social security disability
benefits.”).
               We next address whether substantial evidence supported the WCJ’s
finding that Claimant was receiving Social Security disability benefits. (F.F. No. 12.)
“[I]t is a fundamental tenet of workers’ compensation law that the WCJ, as fact-finder,
has complete authority over questions of witness credibility and evidentiary weight.”
Verizon Pennsylvania Inc. v. Workers’ Compensation Appeal Board (Mills), 116 A.3d
1157, 1162 (Pa. Cmwlth. 2015). “Substantial evidence is such relevant evidence a
reasonable person might find sufficient to support the WCJ’s findings.” Id. To
determine if a “finding of fact is supported by substantial evidence, this Court must
consider the evidence as a whole, view the evidence in a light most favorable to the
party who prevailed before the WCJ, and draw all reasonable inferences which are
deducible from the evidence in favor of the prevailing party.” Id. Further, “[f]or
purposes of appellate review, it is irrelevant whether there is evidence to support
contrary findings; if substantial evidence supports the WCJ’s necessary findings, those

       9
        Consol is an unreported opinion. Under section 414(a) of this Court’s Internal Operating
Procedures, an unreported opinion may be cited for its persuasive value. 210 Pa. Code §69.414(a).


                                               8
findings will not be disturbed on appeal.” Id. Therefore, “[a]s the ultimate fact-finder,
the WCJ has exclusive province over questions of credibility and evidentiary weight,
and is free to accept or reject the testimony of any witness, including a medical witness,
in whole or in part.”     Id.   A court is only permitted to overturn a credibility
determination “if it is arbitrary and capricious or so fundamentally dependent on a
misapprehension of facts, or so otherwise flawed, as to render it irrational.” Id.
             We conclude that there was substantial evidence to support the WCJ’s
conclusion that Claimant was receiving Social Security disability benefits. In doing
so, we keep in mind that we must consider the evidence as a whole, view the evidence
in a light most favorable to Claimant, and draw all reasonable inferences which are
deducible from the evidence in her favor.
             First, Employer argues that Claimant’s testimony supports the finding in
favor of an offset and that the WCJ should not have “rendered a contradictory finding
. . . when it was clear from the evidence” that Claimant was receiving Social Security
retirement benefits rather than Social Security disability benefits. (Employer’s Br. at
8.) However, as we have explained, “it is irrelevant whether there is evidence to
support contrary findings.” Verizon, 116 A.3d at 1162. Thus, we reject the Employer’s
argument in this regard as meritless. Contrarily, the proper nature of our review is
whether the necessary findings rest on substantial evidence.
             The relevant portion of Claimant’s testimony provides as follows:

             [C:] [Claimant] testified that she put in for her retirement
             benefit after her accident.

             A. I had to have income.

                                          ***




                                            9
             Q. Have you applied for or received any type of welfare
             benefit or [Department of Public Welfare] DPW?

             A. I’m getting my retirement. I had to do an early retirement
             because I have no income.

             Q. From whom are you receiving your retirement?

             A. From Social Security.

             Q. What type of Social Security benefit are you receiving?

             A. My retirement. I had to retire – take – what do you call
             it? I don’t even know what it’s called.

                                         ***

             Q. Was the type of benefit that you applied for, what they
             call, old-age benefits?

             A. Yes. I had to take an early retirement. I had no income. .
             ..
(R.R. at 114a, 194a-95a.) The Social Security Letter, in relevant part, provides:

             Information About Current Social Security Benefits[:]
                   Beginning December 2018, the full monthly Social
                   Security benefit before any deduction is [] $ 1095.10.
                   . . . The regular monthly Social Security payment is []
                   1095.00. (We must round down to the whole dollar.)
                                        ***
             Type of Social Security Benefit Information[:]
                   You are entitled to monthly disability benefits.
(R.R. at 446a) (emphasis added). The evidence supports the WCJ’s conclusion. First,
we acknowledge, that Claimant’s testimony indicates that she believed she was
receiving a Social Security benefit and understood it to be her retirement benefits.
However, Claimant’s testimony as to what type of benefit she was receiving was vague



                                          10
and demonstrates that she was unsure as to the type of benefit she was receiving. She
testified that she was receiving retirement benefits, but also testified that she “[didn’t]
even know” what type of benefit she was receiving. (R.R. at 195a.) Despite her
testimony, the Social Security Letter clearly indicates that Claimant is entitled to
“monthly disability benefits.” Id. The Letter does not refer to or mention old age or
retirement benefits. Employer takes issue with the fact that the letter states only that
Claimant is entitled to benefits and this does not indicate that she is actually receiving
them. However, Claimant’s testimony was unequivocal that she was receiving some
type of benefit from Social Security. Claimant’s firm testimony that she was receiving
a Social Security benefit, coupled with the Social Security Letter stating she was
entitled to disability benefits, clearly supports the conclusion that she was receiving
Social Security disability benefits. Moreover,

             it is a fundamental principle of workers’ compensation law
             that the WCJ is the final arbiter of witness credibility and
             evidentiary weight. Hoang v. Workers’ Compensation
             Appeal Board (Howmet Aluminum Casting, Inc.), 51 A.3d
             905, 909 n.7 (Pa. Cmwlth. 2012); Vols v. Workmen’s
             Compensation Appeal Board (Alperin, Inc.), [] 637 A.2d
             711, 714 (Pa. Cmwlth. 1994).[] The WCJ may accept or
             reject, in whole or in part, the testimony of any witness. Id.
             Moreover, the WCJ’s fact-finding authority includes the
             authority to draw reasonable inferences from the evidence.
             General Electric Company v. Workmen’s Compensation
             Appeal Board (Valsamaki), [] 593 A.2d 921, 924 (Pa.
             Cmwlth. 1991).
Pennsylvania Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal
Board (Bonner), 85 A.3d 1109, 1115 (Pa. Cmwlth. 2014) (footnote omitted). Clearly,
from the WCJ’s finding, she placed more weight on the Social Security Letter than
Claimant’s testimony. As such, we conclude that the finding that Claimant was
receiving Social Security disability benefits is supported by substantial evidence.

                                            11
Accordingly, the order of the Board is affirmed.


                             ________________________________
                             PATRICIA A. McCULLOUGH, Judge




                            12
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Personal Health Care, Inc. and        :
UPMC Health Benefits, Inc.            :
DBA WorkPartners,                     :
                  Petitioners         :
                                      :    No. 1718 C.D. 2019
                 v.                   :
                                      :
Workers' Compensation Appeal          :
Board (Cropper),                      :
                 Respondent           :


                                  ORDER


            AND NOW, this 10th day of July, 2020, the November 13, 2019 Order
of the Worker’s Compensation Appeal Board is AFFIRMED.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
