C. McCartney v. Comm. of PA (WCAB)
CourtCommonwealth Court of Pennsylvania
Date FiledNovember 9, 2026
Docket327 C.D. 2025
JudgeCohn Jubelirer. Fizzano Cannon. Dumas
StatusPublished
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Full Opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cheryl McCartney, :
Petitioner :
:
v. : No. 327 C.D. 2025
: Argued: March 4, 2026
Commonwealth of Pennsylvania :
(Workers’ Compensation Appeal :
Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE STELLA M. TSAI, Judge
OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: November 9, 2026
Under Pennsylvania’s Workers’ Compensation Act (Act),1 injured workers
typically receive workers’ compensation (WC) wage loss benefits equal to
approximately two-thirds of their pre-injury salary when they suffer a disability.2
Upon the injured worker’s retirement and receipt of Social Security Retirement
(SSR) benefits, the employer is entitled to reduce the WC benefits paid by 50% of
the amount of the SSR benefits under Section 204(a) of the Act, 77 P.S. § 71(a). An
employee’s SSR regular benefits are funded by both the employee and the
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.1, 2501-2710.
2
For purposes of the Act, disability is synonymous with a loss of earnings. Bradford
County v. Pasko, 323 A.3d 39, 46 n.4 (Pa. Cmwlth. 2024) (en banc).
employer; thus, the 50% offset represents the General Assembly’s recognition that
an employer’s contribution to its employee’s SSR benefits is only partial. Sadler
v. Phila. Coca-Cola (Workers’ Comp. Appeal Bd.), 269 A.3d 690, 705 (Pa.
Cmwlth.), petition for allowance of appeal denied, 282 A.3d 687 (Pa. 2022); Caputo
v. Workers’ Comp. Appeal Bd. (Commonwealth of Pa.), 34 A.3d 908 (Pa. Cmwlth.
2012) (en banc).
The United States Congress, recognizing the inflationary pressures on retirees,
provides occasional Cost-of-Living Adjustments (COLA) for SSR benefits, as well
as other Social Security benefits. Section 215(2)(A)(ii) of the Social Security Act,
42 U.S.C. § 415(2)(A)(ii); 20 C.F.R. § 404.270. It is undisputed that COLA
increases in SSR benefits are not funded by employer or employee contributions
into the Social Security system. Nor is it disputed that the COLA provided by
Congress is intended to allow a recipient’s benefits to keep up with the costs of living
and not be reduced by inflation. Section 215(i)(1)(G), (2)(A)(ii) of the Social
Security Act, 42 U.S.C. § 415(i)(1)(G) & (2)(A)(ii); 20 C.F.R. § 404.270; State
v. Herny, 781 So.2d 1067, 1068 (Fla. 2001);3 Engelbrecht v. Hartford Accident
& Indem. Co., 680 P.2d 231, 233 (Colo. 1984). Unlike the Social Security Act, and
some other states’ WC legislation, the Act does not provide for COLAs in wage loss
benefits.
In this case, an employer wants to apply the 50% offset against the Social
Security Act benefit COLA, thereby reducing by half the cost-of-living increase to
the SSR benefits the injured worker would otherwise receive. According to Cheryl
McCartney (Claimant), allowing the Commonwealth of Pennsylvania (Employer) to
take this offset is contrary to the General Assembly’s grant of only a partial offset
3
The Florida Supreme Court adopted the reasoning of State v. Herny, 776 So.2d 932, 933-
34 (Fla. Dist. Ct. App. 1999).
2
tied to an employer’s partial funding of SSR benefits, to the humanitarian purpose
of the Act, and to the intent of Congress when it awards COLAs to aid retirees in
fighting the impact of inflation. Upon careful review of the Act and the Social
Security Act, which we read in pari materia because there is ambiguity in the Act
as to how SSR benefit COLAs should be treated for offset purposes and both statutes
address a retired worker’s receipt of SSR benefits, we reverse the Workers
Compensation Appeal Board’s (Board) Order.
I. BACKGROUND
A. Relevant Legal Provisions
The issue before the Court involves the interplay between Section 204(a) of
the Act and the Social Security Act’s COLA provisions. Accordingly, we begin with
the relevant statutory and regulatory language.
Section 204(a) of the Act relevantly states:
Fifty per centum of the benefits commonly characterized as “old
age” benefits under the Social Security Act (49 Stat. 620, 42 U.S.C.
§ 301 et seq.) shall also be credited against the amount of the
payments made under [S]ections 108 and 306, [77 P.S. §§ 27.1,
511,] except for benefits payable under [S]ection 306(c): Provided,
however, That the Social Security offset shall not apply if old age
Social Security benefits were received prior to the compensable
injury.
77 P.S. § 71(a). Section 204(c) of the Act requires injured employees to report their
receipt of SSR benefits “under the Social Security Act . . . which post-date the
compensable injury under this [A]ct.” 71 P.S. § 71(c). The Act contains no other
provision relating to this offset, but the Board’s Regulations provide guidance as to
3
how SSR benefit offsets under Section 204(a) may be taken by employers and
challenged by injured workers. 34 Pa. Code §§ 123.4, 123.7.4
In Caputo, this Court addressed the General Assembly’s intent in approving
a 50% offset for an employer based on a claimant’s receipt of SSR benefits. We
explained that the 50% offset
is traceable to the Social Security tax contribution every
employer makes toward its employees’ [S]ocial [S]ecurity
retirement. The General Assembly recognized that the employer’s
contribution is only partial by enacting a 50% offset rather than a
dollar for dollar offset. . . .
The General Assembly chose a 50% offset as a fair approximation
of the employer’s contribution because of the burden to tailor the
offset in each individual case to the actual Social Security tax
contributions made by an employer for the employee subject to
the offset. Further, former employers will benefit by having the
offset apply where they, in turn, have a short history with an
employee who is injured and then retires. The goal of the 50%
4
The Regulation at 34 Pa. Code § 123.4 explains the application of the offset, including
the notice an employer must provide before taking the offset advising of the offset amount, how it
is calculated, and when it begins, and how the claimant can challenge the offset. The Regulation
at 34 Pa. Code § 123.7 states:
(a) [WC] benefits otherwise payable shall be offset by 50% of the net amount
received in [SSR] benefits. The offset shall only apply to amounts which an
employe receives subsequent to the work-related injury. The offset may not apply
to [SSR] benefits which commenced prior to the work-related injury and which the
employe continues to receive subsequent to the work-related injury.
(b) The offset may not apply to benefits to which an employe may be entitled, but
is not receiving.
(c) The offset shall be applied on a weekly basis. To calculate the weekly offset,
50% of the net monthly [SSR] benefit received by the employe shall be divided by
4.34.
34 Pa. Code § 123.7.
4
offset is to achieve fairness to the group of all Pennsylvania
employers. . . . It is not for this Court to speculate as to whether
Section 204(a)’s 50% offset is the wisest or best means to
accomplish the legitimate legislative goal of cost containment.
Caputo, 34 A.3d at 917-18 (emphasis added).5 See also Sadler, 269 A.3d at 705-07
(reiterating the General Assembly’s intent in using 50% as the amount of an
employer’s offset for a claimant’s SSR benefits was to approximate the employer’s
partial contribution for those benefits).
Caputo references the “legitimate legislative goal of cost containment,” which
relates to the 1996 amendments to the Act.6 The legislative purpose of these
amendments has been described as being “[r]easonable workers’ compensation cost
containment for employers, and the concomitant competitive benefit such cost
containment offers for Pennsylvania’s businesses[.]” Kramer v. Workers’ Comp.
Appeal Bd. (Rite Aid Corp.), 883 A.2d 518, 535 (Pa. 2005). Moreover, this Court
has stated that Section 204(a) “serves [the] important policy objective [of] reduc[ing]
the cost of the workers’ compensation system by eliminating double payment for the
same loss of wages.” City of Pittsburgh v. Workers’ Comp. Appeal Bd. (Wright), 90
A.3d 801, 811 (Pa. Cmwlth. 2014).
5
Caputo contains a discussion of how other jurisdictions treat the receipt of SSR benefits
for purposes of WC benefits. As Caputo points out, some states do not allow for any offsets
(reasoning that they are not duplicative benefits), others allow for an offset of some amount, and
still others stop all WC benefits when the claimant begins to receive SSR benefits. The cases cited,
and Caputo itself, do not discuss whether the offsets apply to a COLA increase in SSR benefits.
6
The 1996 amendments are often referred to as Act 57. Section 204(a)’s credits are among
the most “dramatic amendments” to the Act. David B. Torrey & Andrew E. Greenberg, WEST’S
Pa. Prac., Workers’ Comp. § 1:68 (4th ed. 2022). “The [1996] amendments were the most dramatic
since the 1972/1974 changes to the law which . . . worked, of course, a great liberalization of the
law, which were followed by two decades of expansive interpretation by the Commonwealth and
Supreme Courts. The 1996 reforms, like those of 1993, mirrored a national movement aimed at
reducing costs and restoring efficiency.” Id. (footnotes omitted).
5
The Social Security Act identifies SSR benefits, as well as disability and
survivor benefits, as “primary insurance” for those eligible for those benefits, and
their calculation is based on the provisions set forth in that act and in the Code of
Federal Regulations. 42 U.S.C. § 415(a)-(g); 20 C.F.R. §§ 404.201-404.290. In
addition to the amount calculated using the above provisions, the Social Security Act
specifically contemplates beneficiaries receiving COLA increases in their benefits,
outlining when such increases are applicable and how the increases are to be
calculated. See generally 42 U.S.C. § 415(i) (titled “Cost-of-living increases in
benefits”). Simplified, the Social Security Act provides that the Commissioner of
Social Security (Commissioner) will determine each year if the base quarter (“the
calendar quarter ending on September”) in that “year is a cost-of-living computation
quarter,” and, if the Commissioner determines it is such a quarter, “the primary
insurance amount of each . . . individual” is increased “effective with the month of
December of that year . . . .” 42 U.S.C. § 415(i)(1)(A), 415(i)(2)(A)(i),
415(i)(2)(A)(ii)(II).
The federal regulations clearly advise beneficiaries that their “primary
insurance amount may be automatically increased each December so that it keeps
up with rises in the cost of living.” 20 C.F.R. § 404.270. Those regulations also
more plainly describe how an increase in the cost of living will be measured by using
the Consumer Price Index (CPI) or Average Wage Index depending on what the Old-
Age, Survivors, and Disability Insurance Fund ratio is, provides that if the cost-of-
living increase an automatic increase in benefits will occur, and explains how the
COLA is calculated. 20 C.F.R. §§ 272-273, 275. Unlike for an employee’s primary
insurance benefits, an employer does not contribute to the employee’s COLA
increase. In addition to the express statement in the federal regulations that the SSR
6
COLA is intended to ensure that the SSR benefits “keep up with rises in the cost of
living,” 20 C.F.R. § 404.270, numerous courts in other jurisdictions have recognized,
in the context of an employer’s claim of an increased WC offset, this purpose and
the federal government’s intent to maintain the buying power of Social Security
benefits. See, e.g., Herny, 776 So.2d at 933-34; Wilson v. Jim Snyder Drilling, 747
P.2d 647, 652 (Colo. 1987); Engelbrecht, 680 P.2d at 233; McClanathan v. Smith,
606 P.2d 507, 511 (Mont. 1980).
It is this statutory and regulatory language, and the legislative intent behind it,
that we are called upon to examine, along with the facts in this matter, to determine
if Employer is entitled to increase its WC offset due to the federal government’s
grant of automatic COLAs in Claimant’s SSR benefits.
B. Factual and Procedural Background
The relevant facts are as follows. Claimant sustained a work-related injury in
1997 that Employer accepted via a notice of compensation payable. Claimant began
receiving SSR benefits in March 2017, and Employer, after issuing a Notice of
Workers’ Compensation Benefits Offset, reduced Claimant’s WC benefits to
$247.56 per week pursuant to Section 204(a). Claimant subsequently received
COLA increases to her SSR benefits in multiple years. Each time, Employer
increased its offset, without challenge by Claimant. In 2023, however, Claimant
filed a Petition to Review Benefit Offset (Offset Petition), challenging Employer’s
entitlement to increase its offset.
The parties stipulated the above facts to the WCJ, who issued a decision
observing that this legal issue was one of first impression. The WCJ noted that the
Act is silent as to annual COLA increases in SSR benefits and how such increases
would affect the receipt of WC benefits. The WCJ recognized that the Act does not
7
provide COLAs for wage loss benefits and explained that to permit an employer to
reduce the amount of those benefits by a COLA increase in SSR benefits “does not
seem to serve the humanitarian purposes of the . . . Act or the purpose of the COLA
increase in SSR benefits.” (WCJ Decision, Finding of Fact (FOF) ¶ 10.) Allowing
such offset, the WCJ held, would cause economic hardship to an injured claimant,
whose WC benefits do not fluctuate to address increases in the cost of living. The
WCJ concluded that “[t]he offset allowed [in Section 204(a)] is set at the time the
SSR benefit is received and shall not be readjusted based on SSR COLA increases.”
(Id.) As Claimant had not challenged the prior offsets taken, the WCJ’s decision
applied to the 2023 increase and future COLA increases.
Employer appealed, and the Board reversed. The Board, looking only at
Section 204(a) of the Act, found that statutory language to be unambiguous. That
language, the Board explained, “states unambiguously that 50% of [SSR] benefits
‘shall also be credited against the amount of the payments made under [S]ections
108 and 306.’” (Board Opinion (Op.) at 3 (quoting 77 P.S. § 71(a)).) Based on this
language, the Board held
it is clear the General Assembly chose to not include any language
concerning an exception to the Social Security offset in terms of COLA
increases. The statute unambiguously allows the offset of 50% of all
SSR benefits, which would include all benefits paid to claimants, even
if those benefits were increased over time because of regular COLA
increases. . . . While the WCJ points to the fact the Act itself does not
include COLA on [WC] benefits, and that allowing an offset on the
[SSR] COLA increases could negatively impact a [c]laimant
financially, these are policy concerns that would be up to the General
Assembly to rectify in any future amendments to the Act.
(Id.) Ultimately, the Board concluded it was “constrained to follow the actual plain
language of the Act where there [was] no ambiguity and . . . [could] not read into the
8
offset language of the Act an exception for COLA increases to Social Security
offsets where there is no language to indicate that exception.” (Id. at 3-4.)
Commissioner Krebs dissented, stating:
The Act is silent as to such credit and is to be construed in favor of the
injured worker. The 50% credit is for the employer’s contribution to
[S]ocial [S]ecurity. Once the claimant became disabled, the employer’s
[S]ocial [S]ecurity contribution ceased and so the employer receives no
credit on the COLA.
(Board Op. at 5 (Krebs, Commissioner, dissenting).)
Claimant now petitions this Court for review.7
II. DISCUSSION
A. The Parties’ Arguments
Claimant argues the Board’s decision is contrary to the humanitarian purpose
of the Act, which the Supreme Court recently reaffirmed in Steets v. Celebration
Fireworks, Inc. (Workers’ Comp. Appeal Bd.), 335 A.3d 1076 (Pa. 2025). Claimant
maintains that Section 204(a) is ambiguous, and that an employer’s offset for a
claimant’s SSR benefits is limited to the initial amount of SSR benefits awarded and
does not include any subsequent increases to the SSR benefits due to a COLA.
Claimant asserts the language of Section 204(a) is not clear, as is reflected by the
divergent positions taken by the majority of the Board and Commissioner Krebs’
dissent and the WCJ. According to Claimant, neither Section 204(a) nor the
regulation at 34 Pa. Code § 123.7 addresses how benefits are calculated under the
7
This Court’s 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.” Elberson v. Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 936
A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007). However, “[o]ur standard of review in matters involving
statutory interpretation is de novo, and our scope of review is plenary.” Mimi Invs., LLC v. Tufano,
297 A.3d 1272, 1284 (Pa. 2023).
9
Social Security Act or how COLAs are to be treated, and this silence as to offsets
for COLAs creates an ambiguity that must be read in the injured worker’s favor.
Citing Sadler, Claimant further argues the use of a 50% offset by the General
Assembly is to reflect both the employer’s and the claimant’s respective
contributions to the Social Security system, and attempting to impose this offset on
the SSR COLA creates a latent ambiguity because of how those COLAs are funded.
Claimant observes that the 50-50 split cannot be said to apply to any COLA added
to an individual’s SSR benefits because the COLA is based on the CPI for each
quarter of the year and is intended to help SSR recipients retain their purchasing
power in the face of inflation. Because the COLA is not paid by either the
employer or the employee, Claimant argues the purpose of the offset is not met by
increasing it when an injured employee’s SSR benefits increase due to a COLA.
Claimant contends that allowing an employer to take that offset is likewise contrary
to Congress’s intent in approving COLAs as it results in the loss of the very
purchasing power the COLA was intended to supplant (and which the Act does not
provide for WC benefits). Given the ambiguity in Section 204(a), Claimant asserts
that provision must be interpreted in favor of her, the injured worker, and in accord
with the humanitarian purpose of the Act. When this is done, the Board’s Order
should be reversed and the WCJ’s Decision reinstated.8
8
Amicus Curiae Pennsylvania Association of Justice (PAJ) filed a brief in support of
Claimant’s position. PAJ argues Section 204(a) must be analyzed in accordance with the
humanitarian purpose of the Act, and its liberal construction must be informed by the fact that SSR
benefits are a safety net for claimant retirees in particular because they provide a COLA that is
unavailable under the Act. Like Claimant, PAJ asserts the Court should not read silence on the
issue of the effect of SSR COLAs as assent for an increased offset for employers. PAJ further
argues that the focus in Sections 123.7 and 123.8 of the regulations on calculating the WC offset
based on “the net amount received in [SSR] benefits,” and cases that have analyzed the purpose
of using the “net” amount, such as Philadelphia Gas Works v. Workers’ Compensation Appeal
(Footnote continued on next page…)
10
Employer responds that Section 204(a) is crystal clear regarding the offset
available to an employer for 50% of the amount of SSR benefits a claimant receives
without limitation or exception. Where the statutory language is clear, as it is here
Employer argues, that language cannot be disregarded in the pursuit of a law’s spirit.
Herold v. Univ. of Pittsburgh, 329 A.3d 1159 (Pa. 2025). According to Employer,
because automatic COLAs for SSR benefits were approved in 1975, and Section
204(a)’s offset language was added in 1996, the General Assembly had to have been
aware of the possibility of COLAs for SSR benefits and intentionally provided no
exception to the offset for the amounts received as a COLA. The arguments centered
on the humanitarian purpose of the Act and Congress’s intent for COLAs, Employer
argues, are misdirected and irrelevant given the plain language of Section 204(a).
Employer disputes that the offset strips the COLA increase from Claimant or offends
the purpose of that increase because she is still receiving the full amount of the
increase and it is only the WC benefits that are being offset by 50%.
B. Analysis
We begin by examining the language of Section 204(a), using the principles
of statutory interpretation to ascertain the legislative intent for that section’s offset
provision, which is the fundamental goal of statutory interpretation. Hannaberry
HVAC v. Workers’ Comp. Appeal Bd. (Snyder, Jr.), 834 A.2d 524, 531 (Pa. 2003).
The relevant portion of Section 204(a) states:
Board (Amodei), 964 A.2d 963 (Pa. Cmwlth. 2009) (en banc), demonstrate that employers can
only take the net amount and that employers often take incorrect offsets because they do not
consider the tax implications thereof (SSR benefits may be taxable under certain circumstances).
PAJ observes that allowing an increased offset on WC benefits for COLA increases in SSR
benefits compounds the economic damage an injured worker experiences due to the static nature
of WC benefits and defeats Congress’s intent behind the granting of the SSR COLA.
11
Fifty per centum of the benefits commonly characterized as “old
age” benefits under the Social Security Act (49 Stat. 620, 42 U.S.C.
§ 301 et seq.) shall also be credited against the amount of the
payments made under [S]ections 108 and 306, except for benefits
payable under [S]ection 306(c): Provided, however, That the Social
Security offset shall not apply if old age Social Security benefits were
received prior to the compensable injury.
77 P.S. § 71(a) (emphasis added).
As our Supreme Court has recently set forth regarding the principles of
statutory construction, a court’s
first and primary interpretive concern is the statutory text, which is the
best indication of the General Assembly’s intent. [Mimi Invs., LLC v.
Tufano, 297 A.3d 1272, 1284 (Pa. 2023)]. When the text clearly
commands a particular result, we will not ignore it in furtherance of the
broader goals or principles driving the statutory framework under
consideration. See [Section 1921(b) of the Statutory Construction Act
of 1972 (SCA),] 1 Pa.C.S. § 1921(b) (“When the words of a statute are
clear and free from all ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit.”). It is only when we discern
ambiguity in statutory text that we endeavor to resolve it with other
considerations that assist in determining legislative intent. [A.S. v. Pa.
State Police, 143 A.3d 896, 903 (Pa. 2016)]; 1 Pa.C.S. § 1921(c).
Steets, 335 A.3d at 1089.
Ultimately, if a statute’s plain language is unambiguous, the Court must abide
by the legislative intent shown there, even if the result is harsh and contrary to a
statute’s spirit. Koken v. Reliance Ins. Co., 893 A.2d 70, 82 (Pa. 2006). However,
if the language is ambiguous, the Court must engage in statutory construction by
considering, among other factors, “[t]he object to be attained” and “[t]he
consequences of a particular interpretation.” 1 Pa.C.S. § 1921(c)(4), (6).9 In effect,
9
Subsection (c) states, in its entirety:
(Footnote continued on next page…)
12
these factors relate to the purpose of the statute in question and whether the
consequences of an interpretation are consistent with that purpose.
The Supreme Court, in Steets, expounded on the Act and its purpose,
explaining
[t]he [Act] “is remedial legislation designed to compensate claimants
for earnings loss occasioned by work-related injuries.” Triangle Bldg.
Ctr. v. W[orkers’ Comp. Appeal Bd.] (Linch), . . . 746 A.2d 1108, 1111
([Pa.] 2000). As we recently discussed in Herold . . . , the [Act] and its
counterparts in our sister states emerged more than a century ago as the
product of a grand bargain struck to balance the interests of employers
and workers in light of their “mutual dissatisfaction with the common
law negligence system for remedying workers for their work-related
injuries.” [] 329 A.3d at 1181. On one side, “workers gave up the right
to sue their employers for job-related injuries” in exchange for defined
benefits following work-related injuries where relief for workers under
the common law tort paradigm had been fraught with risk. Id. On the
other side, employers sacrificed a variety of tort defenses for “a no-fault
system” that insulated them from “punitive damages and exorbitant
unexpected costs.” Id. As we explained in Herold, the essence of this
grand bargain entails “(1) certain compensation for the injured worker
without regard to fault; and (2) the exclusivity of the administrative
forum for resolving such guaranteed compensation, i.e., employer
immunity from common law liability.” Id. at 1183. Consequently,
(c) When the words of the statute are not explicit, the intention of the General
Assembly may be ascertained by considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar
subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.
1 Pa.C.S. § 1921(c).
13
[WC] benefits are creatures of statute that fully supplanted the common
law tort remedies that preceded them.[]
335 A.3d at 1089.
As the Act is “remedial legislation[,] . . . [it is] subject to a liberal construction
to effectuate [its] purpose of benefitting injured workers and their dependents.”
Peters v. Workers’ Comp. Appeal Bd. (Cintas Corp.), 263 A.3d 275, 286 (Pa. 2021).
Given the thrust of the Act is to make claimants economically whole, “[b]orderline
interpretations . . . are to be construed in the injured party’s favor.” Hannaberry
HVAC, 834 A.2d at 528 (citing Harper & Collins v. Workmen’s Comp. Appeal Bd.
(Brown), 672 A.2d 1319, 1321 (Pa. 1996)). The Act’s liberal interpretation,
however, is not without limits. Our Supreme Court explained shortly after the Act’s
enactment that
[c]ourts can give words a liberal interpretation, when construing an
act such as the one now before us, in order to carry out its advanced
humane intentions, as we have repeatedly done, and shall continue
to do, in the administration of this law; but we have no power to
depart from the clear meaning of a plainly expressed phrase.
Maguire v. James Lees & Sons Co., 116 A. 679, 680 (Pa. 1922).
Employer argues, and a majority of the Board found, that Section 204(a)’s
language is clear on its face and, therefore, commands that Employer be allowed to
increase its offset to account for 50% of the COLA increase to Claimant’s SSR
benefits. In contrast, Claimant asserts and Commissioner Krebs would hold that
Section 204(a) is silent as to how a COLA increase in SSR benefits should be treated
for offset purposes and this silence, along with consideration of other facts and
circumstances, create ambiguity in the statutory language thereby mandating a
liberal construction of the section.
14
Upon careful review, we conclude the Board erred in finding Section 204(a)’s
language unambiguous. First, where a statute is silent about a particular topic, we
have held that the statute is ambiguous because the language does not explicitly
express the legislature’s intent. Borough of Pitcairn v. Westwood, 848 A.2d 158,
164-65 (Pa. Cmwlth. 2004). See also Keystone Sanitary Landfill, Inc. v. Monroe
Cnty. Mun. Waste Mgmt. Auth. (Pa. Cmwlth., No. 746 C.D. 2020, filed March 27,
2024) (“[I]f the statute is silent, ambiguous, or ‘not explicit,’ then we are guided by
certain presumptions in ‘ascertaining the intent’ of the legislature in enacting a
statute. [Section 1922 of the Statutory Construction Act,] 1 Pa.C.S. § 1922.”).10
Both this Court and our Supreme Court have declined to rely on the General
Assembly’s silence in a statute as expressing a particular intent. Hannaberry, 767
A.2d at 533; Borough of Pitcairn, 848 A.2d at 165; see also Bradford County v.
Pasko, 323 A.3d 50-51 (quoting Hannaberry, 767 A.2d at 533). Indeed, in contrast
to its interpretation here, the Board, in Pasko, refused to interpret silence in a similar
offset provision within Section 204(a) to accept the employer’s position that, “‘by
silence,’” the General Assembly had “‘intended a result at odds with the otherwise
logical and consistent slant of the legislation and its humanitarian purpose.’” 323
A.3d at 43 (quoting Pasko v. Bradford County (Pa.Work.Comp.App.Bd., No. A21-
0732, filed Aug. 3, 2022), slip op. at 5).
Second, that statutory language appears clear on its face does not always
mean that the language is unambiguous for purposes of statutory construction. A
statute may contain a latent ambiguity. “A latent ambiguity is an actual ambiguity
that arises when text that was originally thought clear is revealed to contain an
10
This unreported panel opinion is cited for its persuasive value pursuant to Pennsylvania
Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b), and Section 414(a) of the Court’s Internal
Operating Procedures, 210 Pa. Code § 69.414(a).
15
ambiguity upon consideration of extraneous facts and circumstances.” Burke
ex rel. Burke v. Indep. Blue Cross, 103 A.3d 1267, 1273 n.7 (Pa. 2014) (emphasis
added); see also Steuart v. McChesney, 444 A.2d 659, 663 (Pa. 1982). If a latent
ambiguity exists, courts may rely upon the canons of construction as if the ambiguity
was on the statute’s face. Malt Beverages Distribs. Ass’n v. Pa. Liquor Control Bd.,
974 A.2d 1144, 1153 (Pa. 2009); Commonwealth v. McCoy, 962 A.2d 1160, 1167
(Pa. 2009).
The General Assembly designated the offset amount of the SSR benefits to be
50% to reflect the legislative intent to connect the offset to an employer’s
contribution to the SSR benefits. Sadler, 269 A.3d at 705-07; Caputo, 34 A.3d at
917-18. Section 204(a) of the Act is silent as to how a COLA, which is not
connected to an employer’s contribution, should be treated for offset purposes. The
COLAs are created and funded under the Social Security Act, not the Act, and are
governed by Section 215(i) of the Social Security Act. The COLAs are not funded
by employer contributions. As this Court has held, the 50% offset was utilized to
reflect the General Assembly’s acknowledgement that an employer’s contribution to
an employee’s SSR benefits is only partial, with the employee making the
remaining contributions. Sadler, 269 A.3d at 705-07; Caputo, 34 A.3d at 917-18.
In allowing for only a 50% offset, the amount of the offset is tied to an employer’s
partial contributions to the SSR system. Accordingly, Section 204(a) does not
purport to provide an offset for amounts that are not contributed by the employer.
COLA increases for SSR benefits are governed by Section 215(i) of the Social
Security Act and are granted each December based solely on the CPI for each
quarter. If the annual CPI increase meets a certain level, the primary insurance
award (Social Security benefits for retirement, disability, or death) shall be
16
increased. See 20 C.F.R. § 404.275. Cost-of-living increases are paid to all Social
Security recipients, not just to those receiving retirement benefits. The purpose of
this automatic COLA increase is for the Social Security benefits to “keep up with
rises in the cost of living.” 20 C.F.R. § 404.270. The COLA increase is paid for
by federal funding, not by an employer’s contributions to the Social Security
system. The COLA increase was enacted by Congress. The legislative intent of
Congress when enacting the COLA increase, and providing the federal funding for
the increase, is intended to ensure that the SSR benefits “keep up with rises in the
cost of living,” 20 C.F.R. § 404.270.
“Consideration of [the] extraneous facts and circumstances” related to the
distinction in funding SSR benefits generally, the federal funding of COLA increases
in those benefits, and Section 204(a)’s use of 50% to tie the offset amount to an
employer’s partial contribution to the SSR system, create a latent ambiguity in that
it makes “text that was originally thought clear” to be unclear. Burke, 103 A.3d at
1273 n.7. The silence of Section 204(a) as to whether the offset applies to these
COLAs, and the Congressional intent in creating and funding the COLAs, contribute
to ambiguity of the statutory language on this issue.11 Thus, Employer’s arguments,
11
Judge Dumas posits, in her dissent, that “[t]he General Assembly contemplated
automatic COLAs when it enacted the offset with exceptions for, inter alia, specific loss benefits;
however it provided no exception for a COLA.” McCartney v. Com. of Pa. (Workers’ Comp.
Appeal Bd.), __ A.3d __, __ (Pa. Cmwlth., No. 327 C.D. 2025, filed Nov. 9, 2026) (Dumas, J.,
dissenting), slip op. at 6 (emphasis added). As support, this dissent points to Section 204(a)’s
exception to the offset for specific loss benefits and to the legislative history, which “contemplated
a COLA (generally) in debating the statute.” Id. at 6-7 & n.13. See also id. at 10-11 (discussing
Hannaberry and concluding that the General Assembly did not “fail to contemplate” this scenario
in drafting Section 204(a)). But, there is nothing in the cited legislative history that reflects such
contemplation. A close reading of those statements reflect that they were made by those opposed
to the SSR offsets because the offsets harmed hard working Pennsylvanians. Senate J., June 19,
1996, at 2163-64, 2179-80; House J., June 19, 1996, at 1580, 1598-99. More importantly, the
(Footnote continued on next page…)
17
and the Board’s conclusion, that Section 204(a) is unambiguous and that the
remedial nature and humanitarian purpose of the Act are irrelevant are not
persuasive.12
references to COLAs were related to, or criticisms of, the Act not providing COLA increases to
injured workers, not to the COLA in SSR benefits. Senate J., June 19, 1996, at 2163-64; House
J., June 19, 1996, at 1590. Thus, this legislative history is not indicative of the General Assembly’s
contemplation of SSR benefit COLAs as claimed in this dissent.
The dissent also relies on the exception to the offset provided for specific loss benefits, but,
unlike indemnity benefits, specific loss benefits are not paid as wage loss benefits. Allegheny
Power Serv. Corp. v. Workers’ Comp. Appeal Bd. (Cockroft), 954 A.2d 692, 702 (Pa. Cmwlth.
2008) (“[S]pecific loss benefits are recognized as compensation ‘for the loss of use of designated
bodily members rather than for general loss of earning power,’ Turner v. Jones & Laughlin Steel
Corp[.], . . . 389 A.2d 42, 43 ([Pa.] 1978)” (emphasis in original).). Respectfully, this exception
does not reflect, as Judge Dumas’s dissent reasons, that the General Assembly contemplated SSR
benefit COLAs as being subject to the offset.
12
In her dissenting opinion, Judge Dumas asserts the majority does not offer “competing
interpretations of ‘benefits’ (facial or latent) to support excluding the COLA” and “is examining
how the offset applies to a COLA[] . . . not interpreting ‘benefits.’” McCartney, __ A.3d at __,
slip op. at 7-8 (Dumas, J., dissenting) (emphasis in original). We are not reading this statutory
language, including the term “benefits,” in a vacuum or on a clean slate. Our Court, sitting en
banc, has interpreted this language previously to ascertain the General Assembly’s intent behind
granting an employer only a partial offset of SSR benefits and concluded that its intent was to limit
the offset in recognition that an employer’s contribution to those benefits was only partial. Caputo,
34 A.3d at 917-18; see also Sadler, 269 A.3d at 705 (panel holding the same based on Caputo).
This interpretation, which is unchallenged, connects the SSR benefits available for offset to an
employer’s contribution to those benefits and limits an offset for benefits that are not tied to an
employer’s contribution. Nonetheless, Section 204(a) is silent as to how COLA increases in SSR
benefits should be treated. The majority’s interpretation of this silence is in accord with the
principles of statutory construction, with Sadler and Caputo, with Congress’s intent behind the
SSR benefit COLAs, with the purpose of Section 204(a) to avoid duplicative wage replacement,
and with the humanitarian and remedial nature of the Act.
Judge Dumas also looks to the regulations as providing support for her interpretation, but
the regulations must be read in context of the Act and this Court’s interpretations thereof. Thus,
Judge Dumas’ reliance on the regulation’s use of the “net amount received,” 34 Pa. Code
§ 123.7(a), to mean SSR benefits received inclusive of any COLA increase, regardless of whether
that increase was funded by an employer’s contribution, is contrary to Sadler and Caputo.
18
Once the ambiguous language of Sectio