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Kiski v. Workers' Compensation Appeal Board11/28/2005
Alex Kiski (Claimant) petitions this Court for review of a Workers' Compensation Appeal Board (Board) order that reversed the decision of a Workers' Compensation Judge (WCJ) entered in April, 2004 denying BethEnergy Mines, Inc.'s (Employer) modification petition seeking a credit or offset against its workers' compensation liability for the pension benefits received by Claimant.
The Employer's petition requested a supersedeas, and that request was denied by interlocutory order issued by the WCJ on December 11, 2001. The WCJ found that the Employer acknowledged a March 18, 1985 work injury, a low back strain, via a Notice of Compensation Payable, and Claimant, who had been employed by Employer for thirty-nine years, began receiving a weekly disability payment of $336.00. In October, 2001, Employer filed a Modification/Suspension Petition, alleging that Claimant began receiving a United Mine Workers of America (UMWA) disability pension of $663.00 per month effective May 1, 1985, which had subsequently increased to $708.00 per month. However, Claimant testified at a hearing held in August, 2003 that in 1986, he applied for a years of service pension and never switched his status to a disability pension. The determination of the type of pension is at issue because in Oleksa v. Workers' Compensation Appeal Board (Keystone Coal Mining Corporation), 734 A.2d 79 (Pa. Cmwlth.), petition for allowance of appeal denied, 560 Pa. 752, 747 A.2d 372 (1999),this Court established that an employer is entitled to a credit against workers' compensation benefits for the disability pension benefits received by a claimant, where claimant has not helped fund the disability pension benefits received and where these benefits are available only because of a work-related disability.
The WCJ found that Claimant was receiving years of service pension benefits and therefore Oleksa did not control; she concluded that the Employer was not entitled to a suspension or modification of Claimant's benefits. On appeal, Claimant argues (1) that the Board exceeded the scope and standard of its review by dismissing the WCJ's credibility assessment and findings of fact; (2) that the Board erred both as a matter of fact and a matter of law in finding that the claimant "conceded that he was receiving a disability pension benefit;" and (3) that the Board erred in concluding that the Employer's modification petition should be barred by the doctrine of laches.
The relevant evidence presented at the hearing before the WCJ is best summarized by quoting the findings of the WCJ:
3. Employer's evidence--Mr. Lee. In support of its position, the employer submitted the testimony of Kyu W. Lee, Director for Eligibility Services of the UMWA Health and Retirement funds. Mr. Lee testified as follows:
(a) The 1974 disability pension plan of the UMWA was created on December 6, 1974 and began to receive contribution sometime after that time. Bethlehem Steel and its subsidiary, BethEnergy Mines, were a signatory to that agreement and contributed to the plan. No individual miners ever contributed to the plan. He noted that an individual becomes eligible for a disability pension if he was injured in a mine accident and is eligible for Social Security disability benefits. After an individual becomes eligible for a disability pension under the 1974 plan, the benefits continue for the rest of the miner's life unless the person went back to work in the coal industry;
(b) In regard to the claimant, he indicated that the UMWA Health and Retirement Funds sent claimant an entitlement letter on April 30, 1996 informing him that his application for a disability pension had been approved. He noted the clai
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