Philadelphia Gas Works v. Workers' Compensation Appeal Board

CONCURRING OPINION BY

Judge COHN JUBELIRER.

I join the majority opinion and agree with its conclusion that the Bureau of *968Workers’ Compensation’s (Bureau) regulation, 34 Pa.Code § 128.8(a), is consistent with the portion of Section 204(a) of the Workers’ Compensation Act (Act)1 that relates to calculating offsets from pension benefits, and is also consistent with the intent behind the Act and its amendments. The majority’s well-reasoned analysis convincingly explains why we should defer to the Bureau’s regulations regarding the calculation of offsets based on the net pension amount. However, I write separately to make explicit that this Court, sitting en banc in this case, is effectively overruling our panel decision in Steinmetz v. Workers’ Compensation Appeal Board (Cooper Power Systems), 858 A.2d 182 (Pa.Cmwlth.2004).

In Steinmetz, we concluded that where a claimant receives severance benefits, the gross amount of severance benefits should be used to calculate the offset. The structure of Section 204(a) of the Act shows a clear intent by the General Assembly to treat severance benefits and pension benefits similarly in calculating workers’ compensation benefit offsets by having both pension and severance benefits referenced in the same sentence. See 77 P.S. § 71(a) (providing that “[t]he severance benefits paid by the employer directly liable for the payment of compensation and the 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 be credited against the amount of the [workers’ compensation] award”). Since this Court, in Steinmetz, concluded that the gross amount of severance benefits should be used to calculate the offset, it would necessarily follow that, in this case, the gross pension amount would similarly be used to calculate the offset. However, as indicated in the present majority opinion, in rendering our decision in Steinmetz we did not address any regulatory provisions.

In contrast, in this case we do address a regulatory provision and, in fact, defer to the Bureau’s regulation at 34 Pa.Code § 123.8(a), which provides that the net amount of pension benefits should be used to calculate the offset. Given that the structure of the statutory language shows an intent to treat severance and pension benefits similarly, and given that this Court has now addressed the appropriate regulations and has done so en banc, it necessarily follows that today’s opinion effectively requires the net amount of severance benefits to also be used to calculate the appropriate offset. This point is underscored by the majority’s reference to 34 Pa.Code § 123.11(b), which, similar to 34 Pa.Code § 123.8(a), provides that the net amount of severance benefits be used to calculate the applicable offset. Philadelphia Gas Works v. Workers’ Compensation Appeal Board (Amodei), 964 A.2d 963, 966 n. 7 (Pa.Cmwlth.2009).

Although our holding in this case is limited to pension benefits, the rationale in it charts an unmistakable course for future offset cases that would have relied on Steinmetz.

President Judge LEADBETTER and Judge McGINLEY join in this concurring opinion.

. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 71(a).