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Social Security Off-Sets, Vocational Disclosure Rules and a Felony Conviction

On January 7, 2022, a three judge panel of the Commonwealth Court of Pennsylvania issued a decision in the case of Sadler v. Philadelphia Coca-Cola (WCAB), 1294 C.D. 2020, which addressed four primary legal issues.

The court’s opinion was extremely lengthy and affirmed the Workers’ Compensation Appeal Board which had also affirmed the decision of the WCJ.  Accordingly, there was consistency on all issues beginning with the fact finder through the appellate process.

I.  Social Security Off-Set

The claimant in this case was injured after only working four weeks for the employer and began receiving Social Security Old Age/Retirement benefits following the injury.  The employer claimed the 50% off-set under Section 204(a) of the Workers’ Compensation Act, which claimant challenged.  Claimant argued that the off-set provisions violated the Equal Protection Clauses of the U.S. and Pennsylvania Constitutions as the Social Security off-set, unlike other off-sets and credits under the Act, is not based on direct employer funding.  The employer’s contributions to the Social Security benefit in this instance were easily discernable based on claimant’s four weeks’ of employment.  As such, similarly situated employees were treated differently which claimant labeled as a constitutional violation.

The court quickly addressed the overall constitutionality challenge by citing its prior decision in the case of Caputo v. WCAB (Commonwealth of Pa.), 34 A.3d, 908 (Pa. Commonwealth 2012), for the proposition that different classes of injured workers may be created if there is a legitimate governmental interest in doing so.  With respect to Social Security and other off-sets, the government interest is in preventing double payments by an employer.

The court reasoned that the action taken by the legislature in choosing a 50% off-set for Social Security Old Age Benefits need not be a perfect statutory construct.  Rather, it represents a fair approximation of an employer’s contribution to an employee’s Social Security benefits applicable to all employees, not simply the injured one.  The particular classification developed by the legislature in this instance was deemed reasonable and bore a relationship to the nature of the legislation.  When dealing with social welfare benefits, the “rational basis” scrutiny test is applied and the government’s legitimate interest was accomplished here.  The legislature could have chosen to apply the same “dollar for dollar funding” analysis to the social security off-set provisions of the statute but chose not to do so.  This action was reasonable, not arbitrary.

II.  Vocational Disclosure Notices

The claimant argued that the employer’s vocational expert did not send the appropriate disclosure notices under Sections 123.204(b) and (c ) pertaining to the initial vocational interview and subsequent reports; nor did the vocational expert disclose whether any financial interest existed between the employer/insurance carrier and the vocational consultant as required by Section 123.205 of the regulations.

The court undertook a careful review of the record and carved out the testimony and evidence which supported the WCJ’s determination that the appropriate notifications and disclosures were provided.

The initial vocational interview report was provided to claimant, although perhaps beyond the 30 day requirement under the regulation.  However, the claimant established no prejudice stemming from late notice.

As to the financial interest disclosure, if there is no such financial connection, then there is nothing to be disclosed.  Accordingly, no such disclosure was required to the claimant prior to conducting the interview.

III.  Felony Conviction

The claimant was convicted of a Class II Felony after the work injury and argued that his availability for certain jobs located as part of a labor market survey should take the conviction into account.  Specifically, several security guard positions were located for which claimant would have been subject to a background check.  This could have resulted in his disqualification for the position which the judge ultimately found to be available and used as a basis for modification.

The court began its analysis with Section 306(b)(2) of the Act which outlines that in determining partial disability, a labor market survey may be performed to assess an individual’s “residual productive skill.”  The claimant argued that the felony conviction impacts his residual productive skill.

The court flat-out rejected the claimant’s contention, noting that the felony conviction occurred after the work injury and had absolutely no connection to it.  The only factors to be considered as part of his “residual productive skill” were those which were somehow changed or different following the work injury.  These necessarily included his injury-related physical restrictions but not any other factors which developed subsequent to the injury unless related to it.

The court reasoned by looking at other cases addressing similar situations, one being a post-injury heart attack which impacted work restrictions but had nothing to do with the work injury.

Another case involved a claimant’s devastating post-work injury which resulted in significant restrictions.  That employer did not have to establish any work availability as doing so would have been futile.

Finally, the court addressed another case involving a criminal conviction prior to the work injury which was obviously in place when the claimant began working for the employer with whom the work injury was sustained.  In that instance, the criminal conviction was part of the claimant’s “productive skill” in existence prior to the work injury and consequently should be taken into account following the injury.

IV.  Reasoned Decision

This portion of the court’s opinion involved a rather tedious examination of the medical evidence as presented by both parties.  The case was somewhat complicated as there were both upper extremity and lower extremity injuries which were addressed differently by various physicians for each side.  The WCJ accepted portions of opinions by the medical experts which the court, after careful review, determined were accurately assessed and explained by the judge.  A line-by-line examination of all the evidence need not be given but rather a determination of which witnesses are believed and accepted such that meaningful appellate review can be performed.  Here, the judge’s findings were supported by the record and in no way arbitrary or capricious.


The court’s holding regarding post-injury criminal convictions is a good refresher in the area of labor market surveys/job development.

The other portions of the opinion, even the social security off-set analysis, is basically a
reaffirmance of existing caselaw.