Opinion
No. 1826 C.D. 2014
02-20-2015
Vincent Pitts, Appellant v. Board of Pensions and Retirements
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Vincent Pitts (Pitts) appeals the order of the Court of Common Pleas of Philadelphia County (common pleas court) that dismissed Pitts's appeal from the order of the City of Philadelphia Board of Pensions and Retirement (Board) that denied Pitts's application for service-connected disability benefits as untimely.
Pitts commenced employment as a laborer in the City of Philadelphia (City) Streets Department (Department) on April 24, 2000. Pitts ceased working for the Department on December 6, 2003. He applied for service-connected disability benefits on September 17, 2012. Also, on that date, Pitts wrote a letter to the Board and stated that he was never told that he had only one year to apply for service-connected disability benefits. By letter dated September 20, 2012, the Board informed Pitts that his application was denied because "applications for Service Connected Disability benefits must be filed with the Board within one (1) year after separation from service with the City. Based on your effective separation date of February 20, 2009, your disability filing deadline expired on February 20, 2010." Letter from Yvonne Hobbs, Pension Program Administrator, Board of Pensions and Retirement, September 20, 2012, at 1; Supplemental Reproduced Record (S.R.R.) at 50b.
On October 9, 2012, Pitts appealed the denial to the Board. By letter dated November 29, 2012, the Board denied the application to "apply for service-connected disability benefits beyond the one-year deadline." Letter from Francis X. Bielli, Executive Director, Board of Pensions and Retirement, November 29, 2012, at 1; S.R.R. at 53b.
On December 20, 2012, Pitts requested a hearing before the Board. Following a continuance, the Board held a hearing on April 17, 2013. Pitts appeared pro se and testified that he continued to receive W-2 forms from the City for the past twelve years so he thought that he was still "on the books as an employee." Notes of Testimony, April 17, 2013, (N.T.) at 3; S.R.R. at 88b. The W-2 forms listed "Nothing" for the dollar amounts received. N.T. at 4; S.R.R. at 89b. Pitts testified that he left the City on December 6, 2003, and was put into a secondary program to try to find other employment within his "disabilities." N.T. at 5; S.R.R. at 90b. Pitts recently settled a workers' compensation claim for which he was receiving benefits. N.T. at 7; S.R.R. at 92b.
On May 2, 2013, the Board held a second hearing. Pitts testified that he lived for approximately eleven years at 2001 North 25th Street in Philadelphia. Notes of Testimony, May 2, 2013, (N.T. 5/2/13) at 5; S.R.R. at 111b. The City submitted into evidence a letter to Pitts from Clarena Tolson, Commissioner of the Department of Streets which notified Pitts that he would be separated under Civil Service Regulation 32 effective December 29, 2002. Pitts stated that he never received the letter. N.T. 5/2/13 at 7; S.R.R. at 113b. The City submitted into evidence a second letter to Pitts from the City Personnel Department which informed him that his benefits under Civil Service Regulation 32 would be terminated on June 30, 2003. Pitts stated that he did not receive this letter either. N.T. 5/2/13 at 8; S.R.R. at 114b.
Regulation 32 is a Civil Service regulation that provides benefits to a Civil Service employee who has suffered a service-incurred disability and who is no longer able to perform fully the duties of his or her position. It does not apply to non-service incurred injuries or disabilities and is a benefit separate and distinct from those awarded and or administered by the Board. City of Philadelphia, Office of Human Resources, Civil Service Regulation 32 FAQS at www.Phila.gov.
The City submitted a memorandum from Wilhelmina C. Korevaar, M.D., the medical director of the City Department of Finance, Risk Management Division, dated December 11, 2002, which stated:
The medical opinion is that you will never be able to return to your pre-injury position with the City of Philadelphia. This determination is the basis for your department to separate you from employment with the City and to offer you secondary employment if available. The Safety/Personnel Officer of your Department will process the necessary paperwork to separate you from City employment.Memorandum from Wilhelmina C. Korevaar, M.D., Medical Director, December 11, 2002, at 1; S.R.R. at 129b.
. . . .
You should next contact the Pension Board and make an appointment with a pension counselor to understand your pension rights and benefits. The number for the Board of Pensions, Counseling Section is (215) 496-7430.
Pitts initially testified that he might have received the memorandum. N.T. 5/2/13 at 10. He subsequently testified that he never received it. N.T. 5/2/13 at 11; S.R.R. at 117b. When asked whether he called the Board, Pitts replied, "I never called the Pensions because I never received a letter saying I had to contact the Board of Pensions. I don't know what that whole letter said. I didn't read the whole letter." N.T. 5/2/13 at 11; S.R.R. at 117b.
The City placed into evidence a letter from Carolyn Ellis, Personnel Support Services Supervisor, November 21, 2003, which indicated that separation papers from the City would be forwarded to him and that his last day in pay status would be December 5, 2003. Pitts denied that he received the letter. N.T. 5/2/13 at 12; S.R.R. at 118b. Pitts explained that his physical address was listed on the letter, but he had a post office box for his mailing address because "I have a problem getting my mail, and the security doors [sic] on my front. My mail was being taken. So I had to get a P.O. box to secure that I get all my mail." N.T. 5/2/13 at 13-14; S.R.R. at 119b-120b. Pitts admitted that the blank W-2 forms were sent to his mailing address, and he received them. N.T. 5/2/13 at 15; S.R.R. at 121b.
On May 22, 2013, the Board denied Pitts's application to apply for service-connected disability benefits beyond the one year deadline. The Board made the following relevant findings of fact and conclusions of law:
3. He separated from the City effective December 6, 2003. His separation papers include a code indicating that he was interested in service connected disability. . . .
4. A handwritten note on his report of separation indicates that he had an appointment with a Pensions counselor scheduled for December 22, 2003. . . .
5. Mr. Pitts completed an application for service connected disability benefits on September 17, 2012, nearly nine years after he separated from the City. . . .
6. On September 17, 2012, Mr. Pitts also wrote a letter to the Board of Pensions & Retirement saying that he was never told that he had only one year to apply for service-connected disability. . . .
. . . .
13. Mr. Pitts said he first learned that he needed to apply for service connected disability benefits when he attended a Workers' Compensation mediation sometime in 2012.
14. On February 22, 2013, Mr. Pitts received a settlement of $95,000.00 through Workers' Compensation. . . .
15. Mr. Pitts testified that he understood that any service connected disability benefits would be offset by money received through Workers' Compensation which in his case amounted to approximately $250,000.00, including the settlement of $95,000.00. . . .
. . . .
26. The Board did not find Mr. Pitts credible.
27. The Board did not credit Mr. Pitts'[s] testimony that he believed he was still employed because he continued to receive blank W-2 forms from the City.
28. The Board did not credit Mr. Pitts'[s] testimony that he did not have notice of the need to apply for service connected disability benefits within one year of his separation from the City.
29. The Board found that Mr. Pitts had the opportunity to consult with a pensions counselor at the time of his separation from the City and had a scheduled appointment.
30. The Board did not credit Mr. Pitts'[s] testimony that he does not receive mail addressed to his home, in light of his testimony that he had received the W-2 forms sent to that address.
31. The Board found that he had been notified of his need to apply for service connected disability within one year.
32. The Board found that Mr. Pitts separated from the City effective December 6, 2003 and had one year from that date to apply for Service-Connected Disability benefits.
. . . .
CONCLUSIONS OF LAW
35. Section 22-401(d) of the Philadelphia Retirement Code mandates that a member seeking service connected disability benefits file an application within one year of separation from service.
36. The Code has no notice requirement.
37. The Code does not grant the Board the authority to depart from the one-year requirement.
38. The Board is required to apply the Retirement Code strictly and may not disregard a statutory provision. . . .
39. Even if the Board were to adopt a notice requirement, the Board did not credit Mr. Pitts' [s] testimony that he was unaware of his obligation to apply for Service Connected Disability within one year.
40. The Board found that Mr. Pitts did not apply for Service Connected Disability within one year of his separation and accordingly found that he was ineligible
to apply for such benefits after nine years had elapsed. (Citations omitted).Board of Pensions and Retirement, Findings of Fact and Conclusions of Law, October 7, 2013, Findings of Fact and Conclusions of Law Nos. 3-6, 13-15, 26-32, and 35-40 at 2-6; S.R.R. at 23b-27b.
Pitts appealed to the common pleas court. Following oral argument on June 26, 2014, the common pleas court affirmed:
Appellant [Pitts] is correct in stating that Appellee [City] indicated two different dates on which Appellant's [Pitts] separation from Appellee [City] was effective (December 6, 2003 and February 20, 2009). . . . However, because Appellant [Pitts] applied for service-connected disability benefits on September 17, 2012, Appellant [Pitts] missed both possible one-year deadlines. Appellant [Pitts] is also correct in stating that Appellee [City] sent Appellant [Pitts] blank W-2 forms for twelve (12) years following his last day of work. . . . However, because Appellant [Pitts] has not worked for or received pay from Appellee [City] in twelve (12) years, his belief that he was still employed by Appellee [City] is unreasonable. Appellee concluded the same in its Findings of Fact and Conclusion of Law, and this Court finds the conclusion to be supported by substantial evidence. . . . (Citations omitted).Common Pleas Court Opinion, October 13, 2014, at 7.
Pitts contends that the City failed to show proof of mailing of the two letters that were alleged to have been sent to him on June 13, and November 21, 2003 and that the City sent W-2 forms annually, even though they were sent after the alleged separation date.
This Court's review is limited to determining whether constitutional rights were violated, whether local agency procedures were violated, whether an error of law was committed, or whether necessary findings of fact were supported by substantial evidence. Drennan v. City of Philadelphia Board of Pensions and Retirement, 525 A.2d 1265, 1266 (Pa. Cmwlth. 1987).
Initially, this Court notes that the two issues that Pitts raises in his Statement of Questions Involved are not raised in the argument section of his brief. Consequently, these issues are waived. See Pa.R.A.P. 2116(a); Van Duser v. Unemployment Compensation Board of Review, 642 A.2d 544 (Pa. Cmwlth. 1994). (Issues not briefed are waived).
In the argument section of his brief, Pitts argues that the common pleas court should have considered the date of termination as the date he entered mandatory mediation for his workers' compensation claim because he should not have received workers' compensation if he was not an employee. He also argues that he participated in the City's program for disabled employees until he was removed from the program in 2012. Pitts did not raise these arguments in his Statement of Questions Involved. As a result these arguments are waived. An appellate court will not ordinarily consider an issue if it is not set forth or suggested in an appellate brief's statement of questions involved. Cheng v. SEPTA, 981 A.2d 371, 374 n.4 (Pa. Cmwlth. 2009).
Assuming arguendo that Pitts preserved these arguments, this Court determines they have no merit. He failed to establish that a person who receives workers' compensation benefits continues to be classified as an employee. Similarly, his argument that he continued to participate in the City's Secondary Employment program under Civil Service Regulation 32 indicated his continued employment through 2012 is meritless. At most, Pitts could have continued in this program for three years. However, if he were an employee at that time, it is unclear why he would be eligible to participate in the Secondary Employment program. As the Board found that Pitts was separated from employment in December 2003, adding an additional three years, even if that time period was counted, would provide a separation date in 2006. Therefore, his application in 2012 would still be untimely.
City of Philadelphia Civil Service Regulation 32.045 provides:
32.045 - TIME RESTRICTION. An employee determined to be temporarily disabled may be continued in such status for a period not to exceed one year for each work-related injury. Upon the recommendation of the Medical Director, the period in temporary total disability status may be extended in six (6) month increments at the discretion of the appointing authority. An employee may be continued in temporary total disability status for a period not to exceed three years in the aggregate, during an employee's employment with the City.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 20th day of February, 2015, the order of the Court of Common Pleas of Philadelphia County in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge