School District of Philadelphia v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Senior Judge KELLEY.

I respectfully dissent.

As noted by the Majority, it is Employer’s burden to prove its entitlement to a pension benefit offset under Section 204(a) of the Workers’ Compensation Act (Act)1 and Section 123.8 of the Department’s regulations2 by demonstrating the extent to which it has funded Claimant’s pension. The Pennsylvania State University/The PMA Insurance Group v. Workers’ Compensation Appeal Board (Hensal), 911 A.2d 225 (Pa.Cmwlth.2006), petition for allowance of appeal denied, 593 Pa. 743, 929 A.2d 1163 (2007). In order to meet this burden of proof, Employer, as the burdened party, had to meet both its burden of production and its burden of persuasion. See, e.g., Topps Chewing Gum v. Workers’ Compensation Appeal Board (Wickizer), 710 A.2d 1256, 1261 n. 16 (Pa.Cmwlth.1998) (“The ‘burden of proof actually includes two different burdens: the burden of production where the burdened party must produce enough evidence to avoid an adverse legal ruling, and the burden of persuasion, where the burdened party ‘must convince the fact finder to the required degree of certainty of the party’s position on that issue.’ ”) (citation omitted).

Ms. Cranna’s and Ms. Mumma’s testimony confirm that the offset calculation method used by Employer does not account for money in the pension fund due to investment growth on contributions made by employees that did not vest in the plan. Thus, although Employer isolated the portion of Claimant’s pension that was funded by Claimant, the Commonwealth, and Employer, the calculation method used by Employer fails to isolate the portion of Claimant’s pension that comes from this other source, i.e., investment growth on contributions by non-vested employees. Employer’s failure to isolate this contribution source, and to remove it from the amount purportedly contributed by Employer, prevented Employer from credibly establishing the offset as required by the Act and the regulations to the WCJ’s satisfaction.

In addition, Department of Public Welfare v. Workers’ Compensation Appeal *1001Board (Harvey), 605 Pa. 636, 993 A.2d 270 (2010) and Hemal in no way alter the WCJ’s role as the arbiter of credibility.3 Since Employer is not permitted to take credit for contributions made by other sources, see Harvey and Hensal, Employer did not credibly establish the portion of Claimant’s pension that it had funded, and the WCJ properly acted within his authority to find that Employer had failed to meet its burden of proof with credible evidence. As a result, the Board did not err in affirming the WCJ’s decision.

Accordingly, unlike the Majority, I would affirm the Board’s order in this case.

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

. 34 Pa.Code § 123.8.

. The WCJ is the ultimate finder of fact in workers' compensation proceedings. Hayden v. Workmen's Compensation Appeal Board (Wheeling Pittsburgh Steel Corp.), 83 Pa. Cmwlth. 451, 479 A.2d 631 (1984). As the fact finder, the WCJ is entitled to accept or reject the testimony of any witness, including a medical witness, in whole or in part. General Electric Co. v. Workmen's Compensation Appeal Board (Valsamaki), 140 Pa.Cmwlth. 461, 593 A.2d 921, petition for allowance of appeal denied, 529 Pa. 626, 600 A.2d 541 (1991). In fact, the WCJ may reject the testimony of any witness even if it is uncontradict-ed. Capuano v. Workers’ Compensation Appeal Board (Boeing Helicopter Company), 724 A.2d 407 (Pa.Cmwlth.1999). Thus, questions of credibility and the resolution of conflicting testimony are within the exclusive province of the fact finder. American Refrigerator Equipment Company v. Workmen's Compensation Appeal Board (Jakel), 31 Pa.Cmwlth. 590, 377 A.2d 1007 (1977). As a result, determinations as to witness credibility and evidentiary weight are within the exclusive province of the WCJ and are not subject to appellate review. Hayden.