PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
12/22/2022 – 1/25/2023
IMPAIRMENT RATING EVALUATION
Leo DeLuca v. Cservak Management Services, LLC (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 22, 2022
Issue:
Whether the Board erred in affirming the modification of disability status because Act 111 is unconstitutional?
Background:
In 2010 Claimant sustained work-related injuries while working for Employer. Employer accepted liability for payment of total disability benefits as of January 2015. On November 7, 2019, a physician conducted an impairment rating evaluation (IRE) of Claimant pursuant to the Sixth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, Second Printing (Guides), which yielded a whole-body impairment rating of 28%. Employer filed a modification petition, seeking to change Claimant’s disability status from total to partial on the basis of the November 2019 IRE. The WCJ granted the requested modification, declaring Claimant’s change in disability status from total to partial effective as of the date of the IRE. The Board affirmed.
Holding:
Act 111 remediated the delegation of legislative authority deemed unconstitutional by the Protz II Court. It is not delegating its authority to legislate. The General Assembly made a policy decision regarding the standards that will apply to IREs in the Commonwealth going forward. For the reasons already repeatedly articulated by the Court, in a multitude of prior cases, Claimant’s constitutional challenge is meritless. Claimant has no vested right to benefits as calculated at the time of injury as there are reasonable expectations under the WC Act that benefits may change. Act 111 simply provided employers with the means to change a claimant’s disability status from total to partial.
Further, Act 111 is clear that weeks of temporary total disability paid by an employer/insurer prior to the enactment of Act 111 count as credit against an employer’s new obligations under Act 111.
Affirmed.
Susan Motzer v. Commonwealth of Pennsylvania (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 29, 2022
Issue:
Whether the retroactive application of Act 111 is unconstitutional?
Background:
Claimant suffered a work-related injury to her knee. In 2020, Employer filed a modification petition alleging that Claimant’s benefit status must be modified to partial based upon an IRE which determined a whole-body impairment rating of 8%. Claimant did not present any testimony and stated that she would only be challenging the constitutionality of Act 111. The WCJ held that Employer established that Claimant had reached MMI and had a whole-body impairment of 8%. Therefore, the WCJ granted Employer’s petition, modifying Claimant’s benefits to partial disability status effective October 20, 2020. Claimant appealed to the Board, which affirmed.
Holding:
The court rejected Claimant’s arguments, based on its reasoning in previous cases. Employer sought to modify Claimant’s benefits based on an IRE obtained after the effective date of Act 111. The Employer was entitled to do so.
Affirmed.
Joseph Carnevale v. Commonwealth of Pennsylvania (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 29, 2022
Issue:
Whether Employer’s IRE modification petition was barred by res judicata?
Background:
In 2011, a physician performed an IRE on Claimant, applying the most recent edition of the AMA Guides under the former Section 306(a.2) of the Act. His disability status was modified from “total” to “partial,” effective the IRE date. In 2017, Claimant sought reinstatement of total disability (TTD) benefits based on the unconstitutional IRE process that had served as a basis to modify his disability status. In 2020, the WCJ granted a Reinstatement. After Act 111, a new IRE was performed on Claimant. This new IRE was conducted using the Sixth Edition of the AMA Guides under the new guidelines promulgated by Section 306(a.3), and the results yielded an 18% whole person impairment rating. Employer filed a petition to modify Claimant’s benefits from TTD to partial disability (TPD) benefits. The WCJ granted Employer’s petition and modified Claimant’s benefits as of the new IRE date, February 4, 2020. The Board affirmed.
Holding:
After 104 weeks of TTD benefits, an employer may request that a claimant submit to an IRE. Here, Claimant’s receipt of TTD benefits surpassed 104 weeks. Thereafter, Employer requested a new IRE, which revealed that Claimant maintained an 18% total body impairment rating. Thus, there was no error in the WCJ’s decision to grant Employer’s modification petition to modify benefits, based on uncontroverted evidence of an impairment rating below the statutory threshold. The instant matter is not barred by res judicata. In the Reinstatement Adjudication, the WCJ resolved the constitutional infirmity of Claimant’s changed disability status based on the former IRE process. The “sole issue” was whether the WCJ applied the correct date for reinstatement of benefits. There was no contest as to whether Claimant was eligible for said benefits. The present case assessed Claimant’s present disability status and whether Employer satisfied its burden of proving modification was appropriate. The causes of action involve different burdens of proof, facts, and issues.
Affirmed.
Julius J. Cobbs, III v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decision: January 9, 2023
Issue:
Whether Act 111, relating to IREs, is unconstitutional?
Background:
In 2013 Claimant was injured in the course and scope of his employment for Employer’s Water Department. In 2018 Employer acknowledged Claimant’s entitlement to wage loss and medical benefits. In the interim, on June 20, 2017, the Pennsylvania Supreme Court issued its decision in Protz II, holding that the impairment rating evaluation (IRE) provisions contained in Section 306(a.2) of the WC Act was unconstitutional. The Pennsylvania legislature subsequently enacted Act 111, which became effective October 24, 2018. In 2020, after Claimant received 104 weeks of WC disability benefits, at Employer’s request pursuant to Section 306(a.3) of the Act, Claimant underwent an IRE which, based upon the 6th Edition AMA Guides, determined that Claimant had reached maximum medical improvement relative to his accepted work injury, and his whole person impairment was 3%. After reviewing additional records, the IRE reviewer concluded that Claimant had reached maximum medical improvement relative to his expanded work injury, and his whole person impairment rating was 17%. Employer filed the Modification Petition. The WCJ granted the Modification Petition, changing Claimant’s disability status from total to partial as of the IRE date. The Board affirmed.
Holding:
The WCJ did not err in determining that Act 111 can be applied to injuries that occurred before its October 24, 2018 effective date. The provisions of the Act allow for retroactive effect. Further, Act 111 is not an unconstitutional delegation of legislative authority. The flaw in former Section 306(a.2) of the Act was that, unlike the replacement provision of Act 111, it did not simply adopt a set of existing standards; rather, by mandating use of the most recent version of the AMA Guides, it allowed the AMA to alter the standards at will without any legislative oversight. Act 111 corrected this.
Affirmed.
CLAIM PETITION – BURDEN OF PROOF
Express Employment Professionals/Express Services, Inc. v. Isaiah Caldero (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 20, 2023
Issue:
Whether Claimant’s evidence established an ongoing disability from the time of injury to the present?
Background:
Employer was a temporary employment agency. In early July 2017, Employer placed Claimant in a laborer position at a Millwork. Four days into the job, on July 6, 2017, Claimant was injured at work. He was subsequently placed on restrictive work duties. Employer issued a Notice of Temporary Compensation Payable, describing the injury as an upper back area strain or tear. In October 2017, Claimant was released to full-duty work. Claimant did not feel capable of returning to work. Claimant filed a Claim Petition, asserting he sustained work-related injuries to his upper back that prevented him from returning to work. The WCJ found claimant and his medical expert credible and granted the Claim Petition, awarding medical and ongoing indemnity benefits to Claimant. The Board affirmed the decision and order of the WCJ.
Holding:
The WCJ relied upon substantial evidence and the Board properly affirmed the WCJ’s order. In a claim petition, the claimant must establish he sustained a work-related injury but also that such injury resulted in a disability. The claimant also must establish the length of the work-related disability. Claimant met his burden of proving an ongoing disability through his and his expert’s credited testimony. A physician’s lack of personal knowledge of a claimant’s condition before the physician treated the claimant is not fatal to a medical opinion. A medical expert is permitted to base an opinion on the medical reports of other physicians, which experts customarily rely upon in the practice of their profession. Thus, the physician’s testimony was competent and could support a finding of disability before the physician’s first examination. Even though no work restrictions appear in the medical records between October 24, 2017 and October 7, 2019, those records nonetheless indicate Claimant continued to experience chronic pain from his injuries. Claimant testified he experienced pain in his upper back throughout this period for which he sought treatment beginning in January 2018. Claimant’s medical expert’s opinion of when Claimant became disabled by the work injuries was based not only on his review of the medical records but also on his understanding of traumatic back injuries typically being worse at the beginning and improving over time. The medical expert deduced that if Claimant was unable to perform his preinjury position on October 7, 2019, he was unable to perform those duties before then as well.
Affirmed.
REINSTATEMENT PETITION – BURDEN OF PROOF
Oak HRC Suburban Woods LLC v. Carmella Burroughs (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 23, 2023
Issue:
Whether the WCJ erred in granting Claimant’s Reinstatement Petition because she failed to prove that her loss of earning power was related to her work injury?
Background:
Claimant sustained a work-related injury while employed as a Licensed Practical Nurse (LPN) by Employer. She performed modified, lighter duty for Employer before leaving employment in 2017. In 2018 Claimant returned to work with a different employer, Blue Bell Place (Blue Bell), performing light/modified office duties. In this position, her hours increased. A few months later, Claimant, who had surgery scheduled for a non-work- related condition, was terminated from Blue Bell because she had not accrued enough FMLA leave for recovery time. Following her termination from Blue Bell, Employer did not offer Claimant similar employment. In 2019, her treating physician determined that her work injuries had worsened to the point that she was totally disabled and could not work. Claimant filed for reinstatement and penalties. The WCJ granted Claimant’s Reinstatement Petition, denied Employer’s Termination Petition, and directed Employer to pay Claimant total disability benefits. The WCJ also granted Claimant’s Penalty Petitions and further awarded Claimant attorney’s fees at 50% of the total quantum meruit filings by Claimant’s counsel. The Board affirmed.
Holding:
Where a claimant seeking reinstatement of benefits has already established a work- related injury supporting an award of benefits, then causation will be presumed if the claimant can demonstrate that through no fault of his own, his earning power is once again adversely affected by his disability; and the disability which gave rise to his original claim continues. Once a claimant testifies that his or her prior work-related injury continues, the burden shifts to the employer to prove the contrary. When a claimant returns to work with restrictions attributable to a work-related injury, is subsequently laid off, and petitions for the reinstatement of benefits, the claimant is entitled to the presumption that his loss of earning power is causally related to the continuing work injury. The employer may meet its burden by showing that the loss of earnings is caused by the bad faith rejection of available work within the relevant required medical restrictions or by some circumstance barring receipt of benefits. In the instant case, there is no question that Claimant’s original injury was work-related.
Claimant’s resulting discharge was involuntary, and substantial evidence supported this finding. The WCJ made a credibility determination that Claimant had acted in good faith. Employer does not deny its failure to offer Claimant employment. As Employer did not offer Claimant employment within her restrictions, Claimant was entitled to reinstatement of her benefits.
Affirmed.
OCCUPATIONAL DISEASE
Volunteer Fire Companies of Lower Saucon v. David Cawley (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 10, 2023
Issues:
(1) Whether Claimant provided timely notice pursuant to Section 311 of the WC Act; (2) Whether Claimant was entitled to the presumption of causation afforded by Section 301(f) of the Act; and (3) Whether Claimant met his burden of proof under Section 108(n) of the Act?
Background:
Claimant was employed as an active volunteer firefighter with Employer since 1978. Claimant was also self-employed as a small-scale project handyman since 1990. In 2015, Claimant was diagnosed with kidney cancer, and in 2016, he was diagnosed with colon/rectal cancer. On December 27, 2017, Claimant filed a Claim Petition alleging that his two types of cancer are compensable based upon exposure to Group 1 carcinogens as a volunteer firefighter under Section 108(r) of the Act. Claimant sought total disability benefits as of November 30, 2015. Claimant later amended the Claim Petition to include occupational injuries under Sections 108(n) and 301(c)(1) of the Act. The WCJ granted Claimant’s Claim Petition, concluding that Claimant sustained his burden of proving his entitlement to benefits pursuant to Sections 108(n), 108(r), 301(c)(2), and 301(f) of the Act. The Board affirmed the WCJ’s grant of the Claim Petition.
Holding:
Employer’s argument that Claimant failed to timely notify Employer of his work injury was without merit. Notice is a prerequisite for receiving WC benefits, and the claimant bears the burden of demonstrating that proper notice was given. However, there was no basis to say that Claimant should have known about the potential causal connection between his cancers and his work as a firefighter when he retained his attorney. The “discovery rule” requires more than an employee’s suspicion, intuition, or belief.
Claimant never received medical notice of the relationship between fire service and cancers until receiving his expert’s report. The WCJ accepted claimant’s testimony as credible. Therefore, substantial evidence clearly supported the WCJ’s conclusion that Claimant timely notified Employer in accordance with Section 311 of the Act. Next, Employer’s argument that the WCJ erroneously applied the statutory presumption of entitlement to compensation in accordance with section 301(f) of the Act, is without merit. Claimant served four or more years in continuous firefighting duties, and successfully passed a physical examination prior to asserting a claim, and the examination failed to reveal any evidence of the condition of cancer. The Act only required the claimant produce evidence that it is possible that the carcinogen in question caused the type of cancer with which the claimant is afflicted. It does not require the claimant to prove that the identified Group 1 carcinogen actually caused claimant’s cancer. Claimant presented Employer’s pre-PennFIRS and PennFIRS reports reflecting his firefighting since 1979. Claimant was entitled to the presumption under Section 301(f) of the Act because he produced evidence that it is possible that an IARC Group 1 carcinogen caused the type of cancers with which he was afflicted. Finally. to prove his entitlement to WC benefits under the catch-all provision in Section 108(n) of the Act, Claimant had to show that his cancers resulted from his exposure by reason of his firefighting, that the cancers were causally related to his firefighting, and that the incidence of such cancers is substantially greater in that industry or occupation than in the general population. The WCJ deemed credible Claimant’s experts’ testimony that both colon and rectal cancers are more common among firefighters.
Affirmed.
JUDICIAL DISCRETION
Deborah R. Grooms v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 23, 2023
Issue:
Whether the Board erred in affirming the WCJ’s denial of her claim petition by capriciously disregarding substantial, competent evidence of record?
Background:
Claimant filed a claim petition alleging that she sustained injury to her back and neck while working for the City of Philadelphia. After reviewing the evidence as a whole, the WCJ concluded that Claimant failed to sustain her burden of proving that she suffered a compensable work-related injury and denied the claim. The Board affirmed.
Holding:
With respect to a claim petition, the claimant bears the initial burden of proving that an injury arose in the course of employment and was related thereto. In the event there is no obvious causal connection between the alleged disability and the accident, the claimant can only establish the requisite connection by unequivocal medical testimony. The WCJ has exclusive province over questions of credibility and evidentiary weight. A credibility determination will be overturned only if it is arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational. Where there is substantial evidence to support an agency’s factual findings, and those findings in turn support the conclusions, it should remain a rare instance in which an appellate court would disturb an adjudication based upon the capricious disregard of material, competent evidence. The Board correctly affirmed the WCJ’s determination that Claimant failed to meet her burden of establishing that she sustained a compensable work-related injury. Claimant failed to establish that the WCJ’s credibility determinations were arbitrary and capricious, fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render them irrational.
Affirmed.
REIMBURSEMENT – OF AN OVERPAYMENT
John P. Lingelbach, Jr. v. Cummings Bridgeway, LLC (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 4, 2023
Issue:
Whether the Board erred in determining that Employer could recoup a non-fault overpayment from Claimant’s future indemnity benefits?
Background:
Claimant injured his right knee while working for Employer. Claimant initially received temporary total disability (TTD) benefits at a rate of $683.24 per week. In response to Employer’s Petition to Modify Compensation Benefits, a WCJ issued a decision and order, in 2018, in which she reduced Claimant’s compensation rate to $392.06 per week for temporary partial disability (TPD), effective April 15, 2016. However, between April 25, 2018 and March 23, 2020, Employer mistakenly paid Claimant’s 20% attorney fee in addition to Claimant’s full weekly TPD, when it should have deducted the 20% attorney’s fee from Claimant’s weekly TPD payment. Employer overpaid Claimant a total of $7,962.94. Employer filed Review Petitions requesting credit for the overpayment. Claimant testified that the overpayment was not his fault and that he did not engage in any fraud, that a credit would inflict a financial hardship upon him. The WCJ rejected Claimant’s testimony. The WCJ found that Employer unjustly enriched Claimant through the overpayment. Rather than suspending Claimant’s benefits until Employer recouped the overpayment, the WCJ ordered Employer to reduce Claimant’s TPD payments by $74.42 per week until it recouped the overpayment. The Board affirmed.
Holding:
Even if the first WCJ decision was silent as to the payment of attorney’s fees, the Board determined there was no presumption that Claimant was entitled to have Employer pay his attorney’s fees since Employer prevailed on the underlying modification petition. Silence as to the payment of attorney’s fees did not somehow nullify Claimant’s responsibility for his attorney’s fees chargeable against the partial disability benefits, he was awarded. In this context, reimbursement is permitted. The employer is entitled to recoupment, as its overpayments were the result of a “mistaken belief that those payments were necessary to discharge its duty under the WCJ’s orders.” This is not a situation where the request for recoupment of counsel fees and litigation cost that an employer paid while its appeal was pending and after its request for supersedeas was denied. Here, the propriety of the award is not in dispute. The issue is simply a matter of overpayment. While the Workers’ Compensation Act does not allow disgorgement of an unreasonable contest attorney’s fee award that was previously paid to a claimant’s counsel, the Act does not address mistaken overpayments of properly awarded workers’ compensation benefits. As a result, the restriction on the application of equitable principles does not apply to this case.
Affirmed.
MUNICIPAL LAW – PENSION FUND REIMBURSEMENT
Bensalem Township v. Samuel Karley
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 3, 2023
Issues:
(1) Whether the trial court erred by denying Police Officer’s counterclaim for declaratory judgment challenging the legality of the workers’ compensation offset provisions in the Township’s police pension ordinance and in the severance agreement? (2) Whether the trial court erred by finding against Police Officer on the breach of contract claim? (3) Whether the trial court erred and abused its discretion in holding that there had been an event of conversion by the Police Officer?
Background:
On January 3, 2006, the Police Officer began full-time employment as a Township police officer. The terms of his employment were governed by the collective bargaining agreement (CBA) between the Township and the Police Benevolent Association (Union). The CBA provided, inter alia, for a disability pension. In 2014, the Police Officer became permanently unable to perform his duties. In 2015, the Police Officer entered into a severance agreement with the Township. The severance agreement provided that the Police Officer would receive a disability pension effective October 16, 2015. The severance agreement also provided that the amount of the monthly disability pension may be reduced by any amount of workers’ compensation benefit received or which may in the future be received by him. It further provided that the Police Officer had an affirmative duty to continue his workers’ compensation claim, cooperate in the requirements of that claim, and inform the Township of the status of the claim and any changes. Per the agreement, if workers’ compensation benefits ended or were changed in amount or otherwise, the offset to the disability pension would be eliminated or adjusted accordingly. In an earlier workers’ compensation proceeding, the WCJ issued a decision that the Police Officer was entitled to total disability compensation in the amount of $845 per week based on his average weekly wage of $2,318.39, as of the date of his injury. The weekly disability compensation amount of $845 was adjusted to account for his disability pension, as the Plan Actuary calculated that 37.1% of the monthly pension represented employer contribution to the plan. This reduced the weekly WC payment to $425.73. As WC was paying the Police Officer $425.73 per week, under the severance agreement, the Police Officer was required to remit the $425.73 weekly compensation benefit to the Plan. By letter of September 23, 2016, the Township’s pension administrator advised the Police Officer that he had improperly retained these workers’ compensation payments instead of remitting them to the Township, as required by the severance agreement. The pension administrator instructed the Police Officer that he must immediately deliver a certified bank check, payable to the ‘Bensalem Township Police Pension Fund,’ in the amount of $26,292.59, by no later than Friday, September 30, 2016, and that if he did not, the Township would start “reducing his monthly pension benefit” to account for the workers’ compensation payments owed to the Township. On October 19, 2016, the Township initiated a civil action against the Police Officer, asserting claims of conversion, breach of contract, promissory estoppel, and unjust enrichment arising from his refusal to remit his workers’ compensation payments to the Township. In response, the Police Officer asserted counterclaims of conversion, unjust enrichment, mandamus, declaratory judgment, and a violation of the Pennsylvania Wage Payment and Collection Law. On December 23, 2020, the trial court entered a judgment in favor of the Township on breach of contract and conversion.
Holding:
The offset imposed by the Township reduced the Police Officer’s disability pension below the minimum required in Section 5(e)(1) of Act 600, 53 P.S. § 771(e)(1). The trial court declined to rule on his crossclaim for declaratory judgment that the ordinance and the severance agreement violated the minimum pension required by Section 5(e)(1) of Act 600, because the Union was a necessary party to any declaratory judgment action. Nevertheless, the offset provision did not violate Section 450(c) of the Workers’ Compensation Act. That section merely prohibits collective bargaining that purports to diminish a claimant’s entitlement to workers’ compensation. The Police Officer’s workers’ compensation benefits were calculated strictly in accordance with Section 204(a) of the Act, using his average weekly wage and reducing it by 37.1% of his retirement disability. There was no “diminishment” that was not authorized by the Workers’ Compensation Act. (The Court also noted that a WCJ has no jurisdiction over the Pension Administrator, who is not a party to this litigation.) The offset at issue here was expressly authorized by the pension plan ordinance. It was agreed to by the Union in the CBA and by the Police Officer, personally, in the severance agreement. The CBA’s provision on the pension offset for workers’ compensation was binding on him. Even if the offset did not conform to Section 5(e)(1) of Act 600, the trial court explained that “parties may not avoid limitations in a CBA, claiming that it conflicted with the law, after they voluntarily negotiated and agreed to the contracted provisions.” There was no error by the trial court in deciding the matter strictly on the basis of the terms of the severance contract.
The trial court’s conclusion that the Police Officer breached the severance agreement with the Township was not in error. The Police Officer refused to remit his lump sum payment of $26,292.59, in workers’ compensation benefits, as specified in the severance agreement. Although the Township was able to recoup those monies by reducing the disability pension payments, it was required to file suit because the Police Officer refused to adhere to the terms of the severance agreement. Where parties enter into a valid contract, they are required to comply with its terms.
The trial court neither erred nor abused its discretion in finding that an event of conversion had occurred. Conversion is an act of willful interference with a chattel, done without lawful justification, by which any person entitled thereto is deprived of use and possession. The language of the documents is clear and unambiguous. The restitution taken by the Township, as deductions made from pension payments, was consistent with the language of the documents. Therefore, the trial court did not err in finding there was a conversion when the Police Officer took the workers’ compensation benefits without accounting for same. Although the Township recovered the converted monies, the “event” of conversion still took place.
Affirmed.
(Editor’s Note: This matter was not litigated through workers’ compensation forum, but came up through the Court of Common Pleas. A Petition for Reargument before the Commonwealth Court has been filed and is pending.)
NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
01/01/2023 – 01/31/2023
BURDEN OF PROOF
Keith Devan v. Board of Trustees, Public Employees’ Retirement System
Superior Court of New Jersey, Appellate Division No. A-1340-20; 2023 WL 29327
Decided: 01/04/2023
Background:
On January 20, 2015, DeVan, who was a Camden County juvenile detention officer, was injured during the course of his employment. He received workers’ compensation benefits from August 2015 through January 28, 2016, and he retired on March 1, 2016. DeVan then applied for accidental disability retirement benefits and was granted ordinary disability by the Board on May 19, 2016, who found that he was totally and permanently disabled as of March 1, 2016. The Board postponed ruling on the accidental disability application.
In 2016, the union and the County signed a contract that awarded salary increases retroactive to January 1, 2013. In June 2019, the Board granted the application for accidental disability retirement benefits, and in December 2019 advised that the accidental disability retirement benefits would be calculated based on DeVan’s salary at the time of the accident. DeVan filed an administrative appeal, which was denied. The Board rendered a final administrative decision in December 2020.
Holding:
The court held that for the purpose of calculating the amount of DeVan’s accidental disability, the focus is on the salary at the time of the accident and included within that calculation are the retroactive raises until January 20, 2015. The court held that the Board correctly explained the calculation and DeVan has not shown that the Board’s calculation was incorrect.
The court stated that DeVan was confused by the Board’s reference to his workers’ compensation, which was relevant while he was on ordinary disability because ordinary disability is based on final compensation, or the average annual compensation during any three fiscal years providing the largest possible benefit. However, the ordinary disability analysis was inapplicable once accidental disability was granted by the Board.
Finally, the court held that given the plain language of the accidental disability statute, DeVan’s analysis of the workers’ compensation statute and related case law are inapplicable, and any attempt by DeVan to include salary increases after the date of injury are not permitted.
Affirmed.