Opinion
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03-12-2012
City of Pittsburgh and UPMC Work Partners CLMS MGM, Petitioners v. Workers' Compensation Appeal Board (Campbell), Respondent City of Pittsburgh and UPMC Work Partners CLMS MGM, Petitioners v. Workers' Compensation Appeal Board (McHugh), Respondent City of Pittsburgh and UPMC Work Partners CLMS MGM, Petitioners v. Workers' Compensation Appeal Board (Trenz), Respondent City of Pittsburgh and UPMC Work Partners CLMS MGM, Petitioners v. Workers' Compensation Appeal Board (Mobley), Respondent City of Pittsburgh and UPMC Work Partners CLMS MGM, Petitioners v. Workers' Compensation Appeal Board (Jarzynka), Respondent City of Pittsburgh and UPMC Work Partners CLMS MGM, Petitioners v. Workers' Compensation Appeal Board (Shuster), Respondent City of Pittsburgh and UPMC Work Partners CLMS MGM, Petitioners v. Workers' Compensation Appeal Board (Marks), Respondent City of Pittsburgh and UPMC Work Partners CLMS MGM, Petitioners v. Workers' Compensation Appeal Board (Lennon-Spangler), Respondent City of Pittsburgh and UPMC Work Partners CLMS MGM, Petitioners v. Workers' Compensation Appeal Board (Kuczyinski), Respondent City of Pittsburgh and UPMC Work Partners CLMS MGM, Petitioners v. Workers' Compensation Appeal Board (Ungerman), Respondent City of Pittsburgh and UPMC Work Partners CLMS MGM, Petitioners v. Workers' Compensation Appeal Board (Fouch), Respondent City of Pittsburgh and UPMC Work Partners CLMS MGM, Petitioners v. Workers' Compensation Appeal Board (Glaze), Respondent City of Pittsburgh and UPMC Work Partners CLMS MGM, Petitioners v. Workers' Compensation Appeal Board (Howard), Respondent City of Pittsburgh and UPMC Work Partners CLMS MGM, Petitioners v. Workers' Compensation Appeal Board (Moran), Respondent City of Pittsburgh and UPMC Work Partners CLMS MGM, Petitioners v. Workers' Compensation Appeal Board (Dayton), Respondent City of Pittsburgh and UPMC Benefit Management Services, Inc., Petitioners v. Workers' Compensation Appeal Board (Divosevic), Respondent City of Pittsburgh and UPMC Work Partners CLMS MGM, Petitioners v. Workers' Compensation Appeal Board (Ruckel), Respondent City of Pittsburgh and UPMC Work Partners CLMS MGM, Petitioners v. Workers' Compensation Appeal Board (Buckley), Respondent City of Pittsburgh and UPMC Work Partners CLMS MGM, Petitioners v. Workers' Compensation Appeal Board (Belajac), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
This case was assigned to the opinion writer before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
I. Introduction
These are consolidated appeals from orders of the Workers' Compensation Appeal Board (Board) denying the rehearing petition of the City of Pittsburgh and its third-party administrator (collectively, Employer) regarding the Board's affirmance of Workers' Compensation Judge Pamela L. Briston's (WCJ Briston) December 2, 2008, orders (Initial Briston Order). The Initial Briston Order granted review offset petitions brought by 19 retired fire fighters (Claimants) receiving pension benefits and discontinued Employer's benefit offsets taken pursuant to Section 204(a) of the Workers' Compensation Act (Act). Employer contends the Board should have granted the rehearing petition in the interests of justice, and in view of after-discovered evidence in the nature of two other WCJs' decisions finding Employer's Expert's offset calculations appropriate with respect to other retired fire fighters.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §71(a).
II. Background
A. Employer's Rehearing Petition
Following the Board's affirmance of the Initial Briston Order by operation of law due to an evenly divided panel, Employer filed a petition for rehearing under Section 426 of the Act. Employer's petition averred that after the Briston litigation, another 42 retired City fire fighters filed review offset petitions challenging Employer's pension benefit offset. Ultimately, 35 of the petitions proceeded to decision. These cases were consolidated before two WCJs. Eventually, WCJ David B. Torrey (WCJ Torrey) issued 17 decisions determining Employer's offset calculations to be appropriate based on the actuarial testimony and opinions of Milton Dean Ross (Employer's Expert). In addition, WCJ Linda F. Tobin (WCJ Tobin) issued 18 decisions determining Employer's offset calculations to be appropriate based on Employer's Expert's testimony and opinions.
Added by the Act of June 26, 1919, P.L. 642, as amended, 77 P.S. §871. Section 426 of the Act provides the Board may, "upon petition of any party and on cause shown," grant a post-decision rehearing provided it is requested within 18 months of the Board's order.
Employer attached WCJ Torrey's decision in John Anobile v. City of Pittsburgh (Bureau Claim No. 2856948, circulated 07/30/2010), as Exhibit A to its rehearing petition. See Reproduced Record (R.R.) at 8-23. --------
Employer's petition averred Claimants' expert witness, Thomas D. Hudak (Claimants' Expert), fundamentally changed his testimony before WCJs Torrey and Tobin from that given before WCJ Briston. Claimants' Expert recanted some of his prior criticisms of Employer's Expert and created new theories and rationales as to why Employer's data was incorrect. Claimants' Expert agreed he incorrectly assumed certain facts about the Fire Fighters Fund regarding investment returns. He also acknowledged the "one-source" method for determining State contributions did not exist.
Further, Employer's petition averred Claimants' Expert also provided, for the first time, an alternative offset calculation before WCJs Torrey and Tobin. The difference between using Employer's Expert's methodology and Claimants' Expert's methodology averaged $10.61 per week per fire fighter or approximately $500 per year per fire fighter. Claimants' Expert also testified he did not previously perform offset calculations to test his various theories in the Briston litigation. Employer asserts these facts constitute after-discovered evidence and therefore this case must be remanded so WCJ Briston may consider Claimants' Expert's alternative methodology and his revised testimony regarding Employer's calculations.
Employer further averred the interests of justice warrant a remand. If the Initial Briston Order is ultimately upheld, Employer may lose its entire benefit offset, which is over $10,000 per fire fighter per year in some cases. In addition, Employer would have to reimburse 19 fire fighters for all offsets previously deducted. Claimants' Expert's alternative methodology, presented in the Torrey and Tobin litigation, would provide an alternative for determining Employer's offset in the Briston litigation. Employer averred such a result is preferable to the loss of the entire offset.
Additionally, Employer averred that if the Initial Briston Order is upheld, a significant conflict will exist between the decisions of WCJ Briston and those of WCJs Torrey and Tobin. This will result in uncertainty as to how Employer is to proceed in determining its future pension offsets under Section 204(a) of the Act.
Accordingly, Employer asked the Board to grant its rehearing petition and reverse the Initial Briston Order. In the alternative, Employer sought a remand to WCJ Briston for consideration of the additional testimony and evidence presented in the Torrey and Tobin litigation. The Board, however, denied Employer's rehearing petition. Employer petitions for review.
B. Commonwealth Court Remand in Briston Litigation
Employer also appealed from the Board's affirmance of the Initial Briston Order granting Claimants' review offset petitions. In addition, Claimants appealed from the Board's affirmance of WCJ's Briston's December 23, 2008 amended orders (Amended Briston Order) recognizing Employer is entitled to some benefit offset for past and future pension benefits. The Amended Briston Order did not require Employer to reimburse Claimants for past due benefits at that time.
In November 2011, we heard the parties' oral argument in the appeals on the merits in the Briston litigation. Immediately thereafter, the parties presented their oral argument in Employer's appeals from the Board's denial of its rehearing petition.
As to the merits of the Briston litigation, in Glaze et al. v. Workers' Compensation Appeal Board (City of Pittsburgh), ___ A.3d ___ (Pa. Cmwlth., Nos. 1122-1124 CD 2010, 1153-1182 CD 2010, 1206-1210 CD 2010, filed March 1, 2012), we reversed the Board's orders affirming the Initial Briston Order. In light of WCJ Briston's determinations that Employer is clearly entitled to an offset and that any offsets previously taken are not reimbursable, we agreed with Board Commissioner McDermott's position that a remand to WCJ Briston was required for a definitive determination of Employer's offset rights under Section 204(a) of the Act.
To that end, we stated in Glaze that WCJ Briston's remand determination must be consistent with the Supreme Court's decision in Department of Public Welfare v. Workers' Compensation Appeal Board (Harvey), 605 Pa. 636, 993 A.2d 270 (2010) and our decision in Pennsylvania State University/PMA Insurance Group v. Workers' Comp. Appeal Bd. (Hensal), 911 A.2d 225 (Pa. Cmwlth. 2006), appeal denied, 593 Pa. 743, 929 A.2d 1163 (2007). The Harvey and Hensal line of cases hold 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.
Citing Hensal, we also recognized that where an offset under Section 204(a) of the Act is warranted, some imprecision in proof of the amount of the offset is tolerable. See Glaze, Slip Op. at 27-28. In Hensal, we analogized to the law of civil damages and case law holding that damages are considered speculative only if there is uncertainty concerning the existence of damages rather than the ability to precisely calculate the amount of damages. Here, WCJ Briston determined that some offset was clearly warranted. As such, WCJ Briston erred in denying all recovery. Harvey; Glaze.
Also in Glaze, we applied our recent decision in in School District of Philadelphia v. Workers' Compensation Appeal Board (Davis), ___ A.3d ___ (Pa. Cmwlth., No. 166 C.D. 2011, filed December 22, 2011). In Davis, we recognized that if an employer meets its prima facie burden of establishing the extent of its contribution to a claimant's pension by credible actuarial evidence, a claimant challenging the credibility of the employer's actuarial evidence must present evidence demonstrating the materiality and relevance of her challenge.
In reviewing WCJ's Briston's reasons for rejecting Employer's offset calculations, we noted the WCJ's reliance on Claimants' Expert's criticisms of the data and sources used by Employer's Expert. See Glaze, Slip Op. at 30. Although Claimants' Expert criticized the data and sources used by Employer's Expert in determining Employer's offset, Claimants' Expert performed no alternative offset calculations using the different data and sources he believed to be more appropriate. Id. In accord with Davis, we reasoned that Claimants' Expert did not establish the materiality of his criticism of Employer's calculation of any individual Claimant's pension offset. Glaze, Slip Op. at 30-31. Consequently, Claimants failed to show how, if at all, the use of the data or sources Claimants' Expert found more reliable or appropriate would materially impact the extent of Employer's contributions as determined by Employer's Expert. Id. at 31.
As a result, we directed WCJ Briston to reconsider the evidence in light of Harvey, Davis, Hensal and other applicable cases. Also, if warranted, WCJ Briston may take additional evidence as is necessary to determine Employer's entitlement to an offset. Glaze, Slip Op. at 32. Such additional evidence may include alternate offset calculations by Claimants' Expert using his own methodology. Id.
III. Issues in Rehearing Appeals
In these appeals, Employer contends the Board erred in denying its petition for rehearing, in the interests of justice, and based on after-discovered evidence, in the form of: (a) decisions of two other WCJs finding Employer's Expert's offset calculations appropriate with respect to 35 other City fire fighters; (b) the additional, contradictory, not credible and recanted testimony of Claimants' Expert; and, (c) alternate offset calculations only proposed by Claimants' Expert.
IV. Discussion
A. Board's Discretion
The purpose of rehearing under Section 426 of the Act is to present newly discovered, noncumulative evidence, not to permit a party to strengthen weak proofs already presented. Paxos v. Workmen's Comp. Appeal Bd. (Frankford-Quaker Grocery), 631 A.2d 826 (Pa. Cmwlth. 1993). The Board has broad discretion to grant a rehearing. Cudo v. Hallstead Foundry, Inc., 517 Pa. 553, 539 A.2d 792 (1988); City of Phila. v. Workers' Comp. Appeal Bd. (Harvey), 994 A.2d 1 (Pa. Cmwlth. 2010). A decision to grant or deny rehearing will be reversed only where the Board abused its discretion. Cudo; Izzi v. Workmen's Comp. Appeal Bd. (Century Graphics), 654 A.2d 176 (Pa. Cmwlth. 1995).
Nonetheless, the Board must grant a rehearing where justice requires. Id. See also Sun Oil Co. v. Workmen's Comp. Appeal Bd. (Thompson), 631 A.2d 1084 (Pa. Cmwlth. 1993) (appropriate means to present after-discovered evidence is rehearing petition; decision to grant or deny rehearing is within the Board's discretion; however, the Board must do so when justice requires). The Board may grant rehearing to correct a mistake of law or its misapprehension of an issue. Izzi.
B. Employer's Argument
Employer argues that Claimants' Expert's changing testimony in the Torrey and Tobin litigation, Claimants' Expert's alternate offset calculations in the Torrey and Tobin litigation, and WCJ Briston's disregard of applicable case law, warrant rehearing and remand. On remand, Employer asserts, WCJ Briston must consider Claimants' Expert's testimony in the Torrey and Tobin litigation, alternative offset calculations using Claimants' Expert's methodology presented in the Torrey and Tobin litigation, and WCJ Briston must reconsider of all evidence in accord with the dictates of Harvey, Hensal and other applicable case law.
C. Analysis-Mootness
Our decision in Glaze renders Employer's appeals of the Board's denial of the rehearing petition moot. As discussed above, in Glaze, we reversed the Board's orders affirming the Initial Briston Order and remanded with instructions that WCJ Briston ultimately reconsider the evidence in accord with the dictates of Harvey, Davis, Hensal and other applicable cases. Significant here, we further instructed that WCJ Briston may take additional evidence as is necessary to determine Employer's entitlement to an offset. Glaze, slip op. at 32. Such additional evidence may include alternate offset calculations by Claimants' Expert. Id. Consequently, our decision in Glaze essentially grants Employer the relief it sought in its rehearing petition. Therefore, Employer's appeals may be dismissed as moot. See Public Defenders Office of Venango Cnty. v. Venango Cnty. Court of Common Pleas, 586 Pa. 317, 893 A.2d 1275 (2006) (in general, courts will not decide moot questions unless there is an actual case or controversy existing at all stages of the judicial or administrative process).
IV. Conclusion
Thus, we dismiss Employer's appeal from denial of rehearing as moot because Employer received the relief it sought in the related decision in Glaze.
/s/_________
ROBERT SIMPSON, Judge Judge McCullough concurs in the result only. ORDER
AND NOW, this 12th day of March, 2012, consolidated appeals from the orders of the Workers' Compensation Appeal Board denying Petitioners' petition for rehearing in the above-captioned cases are DISMISSED as MOOT.
/s/_________
ROBERT SIMPSON, Judge