Appealed from No. A1-0252. State Agency: Workers' Compensation Appeal Board.
Mark C. Stopperich, Washington, for petitioner.
Paul S. Mazeski, Pittsburgh, for respondent.
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.
MARY HANNAH LEAVITT, Judge
Regis Stepp (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) denying Claimant's review offset petition. In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ) that FairPoint Communications may take an offset against Claimant's workers' compensation benefits under Section 204(a) of the Workers' Compensation Act (Act) for pension benefits funded by its wholly-owned subsidiary. We affirm.
Claimant began working for Marianna Scenery Hill Telephone Company (Marianna) on January 4, 1973. On September 1, 2000, FairPoint acquired Marianna. Claimant continued to be an employee of Marianna, but the human resources department for all employees of all FairPoint subsidiaries was managed by FairPoint. Although not specifically explained, it appears that all employees in the " FairPoint family of subsidiaries" were covered by the same workers' compensation plan or policy. Reproduced Record at 98a (R.R. ).
On June 13, 2008, Claimant sustained a back injury in the course of his employment as an outside plant technician. The injury rendered Claimant unable to perform his job duties, which included climbing, installing and repairing cable while wearing a tool belt and carrying equipment that weighed approximately 40 pounds. Claimant was off work from June 16, 2008, through November 11, 2008. Claimant returned to light-duty work on November 12, 2008, but went off work a day and a half later because of pain from his injury; he did not believe he could perform the light-duty position. Claimant has not worked since November 13, 2008.
Claimant began receiving workers' compensation benefits at a rate of $733.67 per week pursuant to a Notice of Compensation Payable. On June 28, 2010, Claimant notified FairPoint in writing of his intention to retire on July 1, 2010. On July 26, 2010, FairPoint petitioned to suspend Claimant's benefits, alleging that he had been released to return to work and work was available within his restrictions with no loss of earnings. Claimant filed an answer denying the allegations in the suspension petition. Claimant began receiving his pension payments in October of 2010.
On January 4, 2011, FairPoint filed a notice of workers' compensation benefit offset, stating that an offset of $454.58 per week would be charged against Claimant's workers' compensation disability. This offset was based upon the percentage of Claimant's pension benefit that was employer-funded. Claimant filed a petition to review compensation benefit offset alleging that because Marianna, not FairPoint, had funded the pension plan, FairPoint was not entitled to an offset. The suspension and review offset petitions were consolidated and assigned to the WCJ for a hearing.
FairPoint presented the deposition testimony of its benefits manager, Jacqueline Coan. Coan described FairPoint's acquisition of Marianna as a " merger and fast purchase." R.R. 87a. Specifically, FairPoint acquired the stock of Marianna. Coan testified that Marianna continued doing business as a wholly-owned subsidiary of FairPoint and that Claimant remained an employee of Marianna. Coan testified that Claimant contacted FairPoint to request a payout of his pension benefits in June 2010. Accordingly, the National Telephone Communications Association (NTCA), a multi-employer pension fund that administered Marianna's pension plan, responded with several alternative payout plans for Claimant. Coan determined that Claimant's contribution to the pension was 4.29% and ...