Commonwealth Department of Public Welfare v. Workers' Compensation Appeal Board

[1123] ORDER PER CURIAM. AND NOW, this 13th day May 2009, the Petition for Allowance of Appeal is GRANTED, LIMITED TO the issue set forth below. Allocatur is DENIED as to all remaining issues. The issue, as phrased by petitioner, is: When the evidence establishes that an employer has contributed very little, if anything, to a claimant’s pension during [the] years in which the claimant was employed and participated in [a defined benefit] plan, did the Commonwealth Court err by: (1) affirming its decisions in Pennsylvania State University/PMA Insurance Group v. WCAB (Hensal), 911 A.2d 225 (Pa.Cmwlth.2006) and Department of Public Welfare/Western Center v. WCAB (Cato), 911 A.2d 241 (Pa.Cmwlth.2006), and holding that an employer meets its burden of proof by only presenting evidence of an actuarially assumed rate of annual return on an employer’s contribution rather than evidence confirming the actual rate of return on the pension; and (2) disregarding the plain language of Section 204(a) of the Workers’ Compensation Act, 77 P.S. § 71(a), which grants an employer a credit against an employee’s pension only “to the extent [the pension is] funded by the employer directly liable for the payment of workers’ compensation”?