Ropoch v. W.C.A.B. (Com. of Pa/Dpw), 1638 C.D. 2007.

941 A.2d 726

Francis ROPOCH, Petitioner v. WORKERS' COMPENSATION APPEAL BOARD (COMMONWEALTH OF PA/DPW), Respondent.

No. 1638 C.D. 2007.

Commonwealth Court of Pennsylvania.

Argued: December 10, 2007.

Decided: January 14, 2008.

Petitioned for review of determination of the Workers' Compensation Appeal Board.

Gerard W. Langan, Jr., Pittston, for petitioner.

Brian M. Hemak, Scranton, for respondent.

BEFORE: LEADBETTER, President Judge, and FRIEDMAN, Judge, and McCLOSKEY, Senior Judge.

OPINION BY Senior Judge McCLOSKEY.

Francis Ropoch (Claimant) petitions for review of a determination of the Workers' Compensation Appeal Board (Board) affirming a decision of a Workers' Compensation Judge (WCJ), denying Claimant's review petition. For the reasons that follow, we affirm.

The facts of this case do not appear to be in dispute. Claimant sustained a workrelated injury to his low back on July 3, 1997, while in the course and scope of his employment with the Commonwealth of Pennsylvania, Department of Public Welfare (Employer). Pursuant to a notice of compensation payable (NCP), Claimant received benefits in the amount of 8496.35 per week based on an average weekly wage of $744.52. On May 6, 2003, Employer filed a notice of workers' compensation benefit offset as a result of Claimant's receipt of Social Security benefits on April 3, 2006. On that date, Claimant's Social Security disability benefits were converted to Social Security old age benefits.¹ A notice of benefit offset asserted an offset of $135.11 per week beginning on May 24, 2006.

Thereafter, Claimant filed a petition to review compensation benefit offset, alleging that Employer was inappropriately taking an offset of Social Security benefits. Employer filed an answer denying the allegations.

A hearing was held before the WCJ. While no testimony was offered, various documents were entered into evidence. In essence, Claimant asserted that he was entitled to receive workers' compensation benefits and Social Security benefits without any offset because his Social Security disability benefits were converted to old age benefits automatically and not by his choice. In other words, Claimant neither applied for retirement benefits nor did he voluntarily remove himself from the workforce.

Citing Section 204(a) of the Pennsylvania Workers' Compensation Act (Act),² the WCJ concluded there was no distinction between whether a claimant applies for old age benefits or they were automatically transferred from disability benefits to old age benefits. The WCJ noted:

The claimant chose to file for social security disability benefits, which he receives, knowing that those benefits would not continue indefinitely and would automatically transfer to old age benefits once he attained the age of 65 years 6 months. Whether the claimant was receiving workers' compensation benefits or not, the disability benefits for social security would end and old age benefits would begin.

(WCJ opinion, Finding of Fact No. 6). Thus, the WCJ dismissed Claimant's petition.

On appeal, the Board affirmed. Claimant now appeals to this Court,³ arguing that the legislature did not intend Section 204(a) of the Act to "punish" a claimant who, through a ministerial act of the Social Security Administration, has the nature of his benefit changed. Claimant stresses that in this case, he did not voluntarily remove himself from the workforce. Instead, the nature of his benefits changed as a result of procedures at the Social Security Administration. the age of sixty-five on October 10, 2005. 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).

Claimant contends that allowing an offset in the present situation would create an unjust and unequal application of Section 204(a). Specifically, Claimant notes, Social Security disability benefits do not offset a claimant's workers' compensation benefits. By the same token, Social Security retirement (or old age) benefits received prior to a work injury do not offset a claimant's workers' compensation benefits. Claimant reasons, however, that it is unfair to allow offsets in situations like the one presently before the Court, i.e., where a claimant's Social Security disability benefits automatically convert to retirement benefits.

Citing Vitelli v. Workers' Compensation Appeal Board, 157 Pa.Cmwlth. 589, 630 A.2d 923 (1993), petition for allowance of appeal denied, 537 Pa. 627, 641 A.2d 591 (1994), Claimant asserts that cases involving a voluntary removal from the workforce are instructive. Where a claimant states unequivocally that he or she is retired and has no intention of seeking further employment, the employer is relieved of the burden of proving the availability of...