IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Blythe, :

Petitioner :

: No. 437 C.D. 2020

v. :

: Submitted: November 20, 2020

Workers’ Compensation Appeal :

Board (City of Chester), :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: December 29, 2021

Robert Blythe (Claimant) seeks review of the April 10, 2020 order of the 

Workers’ Compensation Appeal Board (WCAB), which affirmed the May 15, 2019 

decision and order of the Workers’ Compensation Judge (WCJ) to award the City of 

Chester (City) the entitlement of a pension benefit offset credit.

Factual and Procedural History

Claimant injured his right shoulder while employed as a police officer for 

the City and was awarded total disability benefits at the rate of $845.00 per week as of 

August 8, 2013. On February 8, 2016, the City filed a petition for suspension alleging 

that (1) as of November 30, 2015, Claimant had voluntarily withdrawn from the 

workforce, and (2) it was entitled to a credit for pension benefits paid to Claimant but 

funded by the City. By decision circulated June 19, 2017, the WCJ denied the petition 
2

for suspension. The WCJ also denied the City’s request for a credit for pension benefits 

because the City did not present sufficient evidence to establish its entitlement to a 

credit:

This [WCJ] finds further that even if Claimant could be said 

to be retired, [the City’s] evidence does not establish an 

entitlement to a suspension of Claimant’s workers’ 

compensation benefits. [The City’s witness, Dejuana] 

Mosley did not testify as an expert and did not adequately 

explain Exhibit D-4 so as to allow it to form the basis of any 

alteration in Claimant’s benefits. [Exhibit] D-4 has no 

authentication. This [WCJ] has no idea who prepared it or 

what the figures purport to show. This [WCJ] accepts that 

[Exhibit] D-3 shows that Claimant’s pension . . . is $6,061.58 

per month, but even if this [p]etition [for suspension] was 

granted and Claimant had voluntarily removed himself from 

the workforce, there is no evidence as to the proper credit. 

(WCJ decision, June 19, 2017, Findings of Fact (F.F.) No. 12.)

The City appealed the decision to the WCAB, which (1) affirmed the 

denial of the petition for suspension and the denial of the credit, but (2) remanded the

matter to the WCJ “to allow [the City] to submit substantial competent evidence which, 

if found to be credible, will establish the amount of its funding of [Claimant]’s pension 

benefit and support the assertion of a credit under section 204(a) of the [Act].

[1]

” 

(WCAB decision, May 16, 2018, at 8.)

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §71. Section 204(a) of the Act, reads, in 

pertinent part:

The 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 award made under sections 108 [added by 

the Act of October 17, 1972, P.L. 930, 77 P.S. § 27.1] and 306 [77 P.S. 

§§ 511-517], except for benefits payable under section 306(c) [77 P.S. 

§ 513]. The employe shall provide the insurer with proper authorization 

(Footnote continued on next page...)
3

The City’s Expert

On remand, the City presented the testimony of its Deputy Controller, 

Dejuana Mosley (Mosley), who had previously testified in the underlying proceedings. 

The WCJ summarized Mosley’s prior testimony relevant to the pension credit issue, as 

follows: 

a. Ms. Mosley is the Deputy Controller for the City of 

Chester and handles all issues related to the pension and 

internal controls for the City. She also handles the deferred 

retirement option program (“DROP”). Ms. Mosley 

explained in detail the provisions of the “DROP” program 

which is a retirement benefit offered to police and fire 

personnel. Claimant entered the DROP program on 

December 1, 2010, and his separation date would be five 

years later on November 30, 2015.

b. Ms. Mosley testified that an employee contributes to a 

Pension Fund with payroll deductions. The City receives 

State Aid through Act 44[2]and then the City is responsible 

to make municipal minimal obligation annual contributions. 

The City, State and employee contribute. When an employee 

is in the DROP program, the State aid is still contributed 

through the plans, but they are deemed retired and are no 

longer making pension contributions. The City still receives 

State Aid but not for the person enrolled in the DROP 

program because they are no longer making pension 

contributions. When Claimant entered the DROP program, 

there was no longer any State aid for him, but he was still 

getting credit for what the City paid in for him. Once you go 

to secure the amount which the employe is receiving under the Social 

Security Act.

77 P.S. §71 (emphasis added).

2 Act of September 18, 2009, P.L. 396, No. 44 (commonly known as Act 44) amended the 

Municipal Pension Plan Funding Standard and Recovery Act, Act of December 18, 1984, P.L. 1005, 

No. 205, as amended, 53 P.S. §§895.101-895.1131 (commonly known as Act 205) by adding Chapter 

11, titled “Deferred Retirement Option Plans.” See Sections 1101-31 of Act 205, 53 P.S. §§895.1101-

31.
4

into the DROP program your pension deduction 

automatically ceases. Once you enter the DROP program 

only Act 205 money and City money would be put in.

c. Ms. Mosley testified that [] the City of Chester offers a 

defined benefit plan and payment is based off of a contract 

or city ordinance obligation based on criteria which is usually 

set up by age and service years. Once an employee qualifies 

for obtaining years or age, the benefit is based off your 

calculations that are described in your contract or city 

ordinance. For police officers, once they reach retirement 

age or years the benefit is their last twelve months that they 

worked. The City contribution into the pension fund is a 

global contribution for all people that the City is paying for 

within the fund. In order to tell what contribution was made 

on behalf of Claimant, Ms. Mosley had to consult with 

consultants and the State Actuary.

d. Claimant separated from the DROP program on November 

30, 2015 and he started receiving his actual pension and his 

DROP benefit in December of 2015. This means he has 

retired from the City of Chester. On cross examination, Ms. 

Mosley testified that as a DROP participant Claimant is 

receiving a weekly check from the City in his pension benefit 

that was calculated as being invested for him. The plan can 

determine the City’s Municipal Minimum Obligation 

(MMO) payment from the year Claimant started working 

until he separated from the DROP program. The plan can 

determine what the City required to put in as well as the State 

Aid invested and the investment earnings. This would show 

whether or not the City made the MMO or overpaid it. Ms. 

Mosley testified that except for 2014, 2015 and 2016, the 

City has made [MMO] contributions although they were late. 

When the contributions are late, the City is charged seven 

and a half percent (7.5%) interest which is credited to the 

respective pension fund.

(WCJ decision, May 15, 2019, F.F. No. 8(a)-(d).)
5

On remand, the City also presented the testimony of Larry Brisman

(Brisman), who was employed with the Beyer-Barber Company as a vice president and 

actuary. He has been an enrolled actuary since 1992. (Reproduced Record (R.R.) at 

29a, 182a-84a.) He was responsible for close to 400 municipal pension plans. He 

explained that “we would run the evaluations of the pension plans every two years. It’s 

my responsibility to review the results, help prepare reports that go to the municipalities 

to show them what their funded status is at the particular point in time. Also, what the 

required contribution is that needs to be made in order to satisfactorily fund the pension 

plan.” (R.R. at 29a, 183a.)

Brisman was requested by the City, through its third-party administrator, 

Thomas Anderson & Associates, to review the pension plan with respect to the 

Claimant. Brisman reviewed an employee pension face sheet that provided Claimant’s 

date of birth, salary, and monthly benefit as well as a list of the contributions that were 

made by Claimant, the City, and the Commonwealth of Pennsylvania. After review of 

the materials, Brisman prepared a letter to the third-party administrator detailing the 

calculation that was done in order to determine the City’s contribution to Claimant’s 

pension benefit. (R.R. at 29a, 188a, 191a, 212a-16a.)

Brisman explained how he performed the calculations. The calculations 

were based on Claimant’s personal information such as date of birth, date of 

employment, and date of disability. Brisman then factored an interest rate assumption 

or real rate of return of 71⁄2% per year, as that represented a long-term rate of return of 

the pension plan. Brisman explained that one must look at the asset allocation of the 

plan and “apply capital market assumptions to it to get a sense of what the long-term 

rate would be.” (R.R. at 29a, 191a-94a.) The rate of interest/real rate of return of 71⁄2% 

was within the average range of what municipalities use. Id.
6

Brisman further explained that to determine Claimant’s contribution, he 

looked at the accumulated value of Claimant’s contributions as of December 1, 2010. 

That amount was $75,157.00. The accumulated value was divided by an annuity factor 

which was determined from the 71⁄2% interest and mortality table to obtain the annual 

benefit or contribution made by Claimant. Claimant’s annual contribution was 

$5,822.66. (R.R. at 29a, 195a-96a.) Brisman explained that the remaining benefits in 

the amount of $66,916.30 were then attributable to either the Commonwealth or the 

City. Using the figures provided by the third-party administrator, Brisman determined 

that the accumulated contributions from the Commonwealth were $40,671,799 and the 

City were $13,222,520. Dividing the remaining amount of $66,916.30 by each of the 

accumulated contributions, he determined that the City’s portion of the contributions 

was $21,754.70, which was 29% of the total annual benefit. Brisman determined that 

Claimant’s portion was 8% and the Commonwealth’s portion was 62% of the total 

figure. Brisman confirmed that even if the City did not make the MMO, the 

calculations accurately reflected only the years money was contributed. He explained 

that if the City made a late payment, it paid interest and the contribution to the pension 

fund was only considered in the year the contribution was made. (R.R. at 29a-30a, 

196a-97a, 200a-01a, 213a-16a.)

Brisman explained in detail how he calculated the annual portion of 

benefits paid to the portion of the pension fund attributable to Claimant by the City to 

be $21,754.70 or 29% of the total figure. Claimant provided no rebuttal evidence to 

show there was no entitlement to a credit and did not provide any documents or 

calculations that differed from the documents and Brisman’s testimony regarding the 

City’s credit. (R.R. at 30a.)
7

WCJ Decision

By decision dated May 15, 2019, the WCJ granted the City’s suspension 

petition and awarded the City a 29% credit against Claimant’s ongoing temporary total 

disability benefits from December 25, 2015, and ongoing, as long as the Claimant 

continued to receive both workers’ compensation benefits and his pension benefits. 

(WCJ decision, May 15, 2019, F.F. No. 13.) The WCJ found that the City was entitled 

to an additional credit of 20% against Claimant’s temporary total disability benefits 

until the City had recouped the credit that it was owed from December 25, 2015, until 

the date that the City took its credit. Id. F.F. No. 14. In Finding of Fact No. 11, the 

WCJ found the testimony of the City’s witnesses, Mosley and Brisman, credible and 

persuasive. The WCJ noted that Claimant failed to provide rebuttal evidence to show 

that the City was not entitled to a pension offset credit or provide any documents or 

calculations that differed from the documents provided by the City’s experts. 

Claimant appealed to the WCAB, arguing that (1) the City waived its right 

to present evidence to establish its entitlement to a credit, and that the WCAB erred by 

ordering a remand; and (2) the evidence was not sufficient to establish the amounts 

contributed by the City and Claimant to permit the appropriate calculations under the 

Act – specifically, because the actuarial evidence accepted as credible by the WCJ 

included contributions from the Commonwealth, which was not his employer, and 

because the City did not address pension underfunding.

WCAB Opinion

On April 10, 2020, the WCAB circulated an opinion affirming the WCJ’s 

decision. With regard to the issue of waiver and whether the WCAB erred in 

remanding the matter to allow the City to present additional evidence, the WCAB held 

that no error had occurred. It reasoned that section 204(a) of the Act requires that 
8

employer-funded contributions to a claimant’s benefits under a pension plan must be 

credited against a workers’ compensation award. 77 P.S. §71(a). It concluded that 

because the language of section 204(a) is mandatory, a remand was not improper. 

Regarding the pension benefit offset credit, the WCAB rejected 

Claimant’s argument that the City failed to establish the extent of its funding of 

Claimant’s pension benefits. The WCAB did not agree with Claimant that Brisman’s 

testimony was deficient. The WCAB concluded that Brisman calculated the separate 

contributions by Claimant, the City, and the Commonwealth, and that he did not evade 

questions concerning MMO payments and that he explained that late payments are 

included in the year they were actually made.

Issues and Analysis

In his petition for review,3 Claimant raises two issues: (1) whether the 

WCAB erred in remanding the case to the WCJ to allow the City to submit additional

evidence on the pension benefit offset credit; and (2) whether the WCAB erred by 

concluding that the City met its burden of proving its entitlement to a pension benefit 

offset credit.

1.

In his first issue, Claimant argues that the WCAB erred by remanding this 

matter to the WCJ for further evidence, and the WCJ’s acceptance of additional 

evidence was error. He submits that a failure to present evidence to establish the 

entitlement to specific relief is fatal to a petition in workers’ compensation matters. 

(Claimant’s Br. at 10 (citing Romaine v. Workers’ Compensation Appeal Board (Bryn

3 This Court’s scope of review is limited to determining whether necessary findings of fact 

are supported by substantial evidence, whether an error of law was committed, or whether 

constitutional rights were violated. Schriver v. Workers’ Compensation Appeal Board (Department 

of Transportation), 699 A.2d 1341 (Pa. Cmwlth. 1997). 
9

Mawr Chateau Nursing Home), 901 A.2d 477 (Pa. 2006)).) He contends that in the 

original proceedings before the WCJ, the City chose not to present expert testimony 

and that was fatal to its request for a credit for pension benefits. (Claimant’s Br. at 9-

14 (citing Commonwealth v. Workers’ Compensation Appeal Board (Harvey), 993 

A.2d 270 (Pa. 2010), and other cases for proposition that actuarial expert testimony is 

required to establish entitlement to a pension offset when there is a defined pension 

plan).) He asserts that the WCAB found that the City had failed to present substantial 

competent evidence to establish its entitlement to a credit. In Claimant’s view, that 

should have ended the WCAB’s inquiry. He argues that the purpose of a remand is not 

to allow a party to present evidence it failed to present previously. 

We discern no error in the WCAB’s remand to permit the City to provide 

substantial competent evidence to establish how much it contributed to the pension. 

The WCAB has broad discretionary authority under section 419 of the Act, added by 

the Act of June 26, 1919, P.L. 642, 77 P.S. §852, to remand to a WCJ. Section 419 of 

the Act provides:

The [WCAB] may remand any case involving any question 

of fact arising under any appeal to a [WCJ] to hear evidence 

and report to the [WCAB] testimony taken before him or 

such testimony and findings of fact thereon as the [WCAB] 

may order. . . .

77 P.S. §852. See also McDaniel v. Workers’ Compensation Appeal Board (Maramont 

Corporation), 157 A.3d 544, 548 (Pa. Cmwlth. 2016). Section 204(a) of the Act 

provides that the benefits of a pension plan, to the extent funded by the employer 

directly liable for the payment of compensation, shall be credited against a workers’ 

compensation award. 77 P.S. §71(a) (emphasis added). The purpose of section 204(a) 

of the Act is to reduce the cost of workers’ compensation benefits in Pennsylvania by 

allowing employers to avoid paying duplicate benefits for the same loss of earnings. 
10

Kramer v. Workers’ Compensation Appeal Board (Rite Aid Corporation), 883 A.2d 

518, 536 (Pa. 2005); Harvey, 993 A.2d at 281 (citing Kramer and noting the 

Legislature’s clear intention in enacting section 204(a) was “to afford effective 

redress”); Pennsylvania State University v. Workers’ Compensation Appeal Board 

(Hensal), 911 A.2d 255 (Pa. Cmwlth. 2005). Here, the City presented evidence in the 

original proceedings before the WCJ that the City had definitely contributed funds to 

Claimant’s pension. In light of the clear legislative intent to provide employers relief 

from concurrent payment of workers’ compensation and employer-funded pension 

benefits, we cannot say the WCAB erred in requiring the WCJ to take evidence and to 

make findings on a crucial issue necessary for the proper application of the law. See

Craftsmen v. Workers’ Compensation Appeal Board (Krouchick), 809 A.2d 434 (Pa. 

Cmwlth. 2002) (upholding WCAB’s remand pursuant to section 419 of the Act where 

the WCAB was convinced that additional findings were needed on the issue of 

causation, for proper application of the law surrounding the claimant’s burden of proof 

in a cardiac death case). Because the language of section 204(a) is mandatory, we 

conclude that the WCAB correctly held that a remand to the WCJ was proper. 77 P.S 

§71(a).

2.

Next, Claimant argues that, under section 204(a) of the Act, an employer 

is only entitled to offset workers’ compensation disability benefits from a pension plan 

“to the extent funded by the employer directly liable for the payment of compensation.” 

77 P.S §71(a). Referring to the WCJ’s Finding of Fact No. 8(3) (“[t]he remaining 

benefits were then attributable to either the Commonwealth or [the City]”), Claimant 

argues that the City’s evidence did not reflect its actual contributions because Brisman 

intermingled the City’s contributions with those of the Commonwealth. He contends 
11

that because the offset calculations included the Commonwealth, not Claimant’s actual 

employer, the City’s evidence was hypothetical and did not represent its actual 

contributions. We disagree with Claimant’s assessment. 

Under section 204(a) of the Act, 77 P.S. §71(a), the employer bears the 

burden to establish the extent of its funding of the claimant’s pension benefits. 

Department of Public Welfare/Polk Center v. Workers’ Compensation Appeal Board 

(King), 884 A.2d 343, 347 (Pa. Cmwlth. 2005). Actuarial assumptions and calculations 

may be used to determine the employer-funded component of a defined benefit pension 

plan. Harvey, 993 A.2d at 281-82. The Act does not require the employer to prove the 

amount of its actual contributions. Id.

Based on the record, we conclude that the City’s evidence, as accepted by 

the WCJ, meets this standard. The City presented unrebutted evidence that it

contributed $21,754.70 to Claimant’s annual pension benefits that he received in 

addition to his workers’ compensation benefits.4 The WCJ credited the testimony of 

Mosley, the City’s Deputy Controller, which was taken in the original proceeding. The 

WCJ also found Brisman’s testimony credible, observing that Brisman explained his 

calculations in detail and that Claimant did not present rebuttal evidence to show that 

there is no entitlement to a credit, or provide differing calculations. We do not agree 

that Brisman’s testimony was deficient in the manner argued by Claimant. Claimant 

fails to take into consideration the remainder of Brisman’s testimony. Specifically, 

Brisman explained that the accumulated value of Claimant’s contributions as of 

December 1, 2010, was $75,157.00. That sum was divided by an annuity factor of 

12.907684, yielding an annual benefit of $5,822.66 attributable to Claimant’s 

4

In his brief, Claimant cites to a “Report on Municipal Pension Funds” and an article titled

“State: Chester’s pension fund is going broke.” However, because this “evidence” was never 

submitted to the WCJ during the underlying litigation or on remand, we will not consider it on appeal.
12

contributions. Although Brisman noted that the remaining benefit of $66,916.30 was 

attributable to the Commonwealth aid and the City’s contributions, he went on to 

calculate the total of the combined contributions of Claimant, the Commonwealth and 

the City. Precisely, the remaining benefit was multiplied by a ratio of the City’s 

accumulated contributions to the total of the combined Commonwealth and the City’s

contributions. The same calculations were used to determine the Commonwealth aid 

amount. The portion of Claimant’s benefit attributable to his contribution was 

determined to be 8% of the total; the Commonwealth’s contribution was determined to 

be 62.1% of the total; and the City’s portion was determined to be 29.9% of the total.

(WCJ decision, May 15, 2019, F.F. No 8(c).) 

The WCJ has complete authority over questions of credibility, conflicting 

evidence and evidentiary weight. Daniels v. Workers’ Compensation Appeal Board

(Tristate Transportation), 828 A.2d 1043, 1052 (Pa. 2003). The WCJ is free to accept 

or reject, in whole or in part, the testimony of any witness. Lombardo v. Workers’ 

Compensation Appeal Board (Topps Company, Inc.), 698 A.2d 1378 (Pa. Cmwlth. 

1997).

Because an employer may sustain its burden of proof for offset purposes 

through expert actuarial opinion, and the WCJ here found the City’s offer of this 

evidence credible, the City is entitled to an offset. City of Philadelphia v. Workers’ 

Compensation Appeal Board (Grevy), 968 A.2d 830, 839 (Pa. Cmwlth. 2009) 

(explaining that, “[i]f the actuarial testimony is accepted as credible, it is legally 

sufficient to establish the extent of an employer’s funding for offset/credit purposes”).

The order of the WCAB is affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Blythe, :

Petitioner :

: No. 437 C.D. 2020

v. :

:

Workers’ Compensation Appeal :

Board (City of Chester), :

Respondent :

ORDER

AND NOW, this 29th day of December, 2021, the April 10, 2020 

opinion and order of the Workers’ Compensation Appeal Board is hereby 

AFFIRMED.

________________________________

PATRICIA A. McCULLOUGH, Judge