An Employer may petition for Suspension and/or Modification of Workers' compensation indemnity wage loss benefits if the worker has voluntarily withdrawn from the workforce. The Commonwealth Court devised a "totality of circumstances" test for Employer's burden of proof.
The Pa Supreme Court affirmed that decision.
City of Pittsburgh v. WCAB (Robinson), No. 18 WAP 2011, a decision of the Supreme Court of Pennsylvania authored by Mr. Chief Justice Castille on March 25, 2013.
Factual and Procedural Background
Employee was a police officer. She sustained a work injury in 1997. She began working in a light duty office position. In 2001 she was injured in a motor vehicle accident on her way to treatment for the work injury. These new injuries were accepted via a Notice of Temporary Compensation Payable.
She did not return to work in the light duty position, nor was she offered any other position.
In 2004 Employee sought and received a disability pension from Employer. Three physician examinations certified she was unable to return to work as a police officer.
In 2007 Employer medical exam concluded she could not return as a police officer BUT she could perform modified work, as specified in the report. Employer sent LIBC 757 form, "Notice of Ability to Return to Work".
Employer filed Petition for Suspension averring Employee was capable of work but Employee "has voluntarily removed herself from the work force as she "has not looked for or sought employment in the general labor market".
Employee responded she remained attached to the workforce, she is registered with the Pa Job Center and the reason she is not presently working is that employer did not make modified duty work available to her.
WCJ denied suspension and concluded Employee had not voluntarily removed herself from the workforce. The WCJ noted Employer did not make suitable work available and Insurer testimony was that the former modified duty program was abolished in 2003. There was no vocational expert testimony. Consistent with SEPTA v. WCAB (Henderson) (Pa. 1995) the WCJ concluded Employee was forced into disability retirement as a result of her injury, when her modified duty was eliminated.
WCAB & COMMONWEALTH COURT AFFIRMED
Commonwealth Court decision was an en banc plurality decision.
[City of Pgh v. WCAB (Robinson) 4 A.3d 1130 (2010)]
Supreme Court Reviewed the Legal Arguments:
1. To obtain a suspension Employer must meet the 4-part Kachinski Standard:
i. produce medical evidence of a change in condition
ii. produce a referral to an open job within medical clearance
iii. claimant must demonstrate good faith follow through
iv. if referral does not result in job, benefits continue.
2. Pursuant to Section 306(b)(2) an Employer may modify and/or suspend based upon vocational
expert testimony of a claimant's post-injury earning power via a labor market survey.
3. Employer does not need to establish availability of suitable work where a claimant has
voluntarily removed herself from the labor market through retirement. Henderson.
If a claimant has retired the burden shifts to claimant to show an attachment to the workforce
(seeking employment) OR she was forced out of the entire workforce by her work-related injury.
4. Employer may not assume that Employee has retired merely because she accepted a disability
pension. There are several types of pensions (disability or retirement) and several types of
disability pensions. HERE the disability pension only required a showing employee could not return
to perform her time-of-injury job. The acceptance of this pension, by itself, does not indicate
employee voluntarily left the entire workforce.
5. The "Totality of Circumstances" Standard
HERE employee accepted a disability pension conditioned on her inability to perform her time-of-injury job. She did not accept an "old age" pension or a disability pension that precluded a return to any type of work. WCJ found employee was not working because her modified duty position was eliminated. She was not offered a position within her capabilities, consistent with the 2007 medical exam. In the absence of a retirement and in the absence of a job offer, a suspension was not appropriate.
There is no "presumption" that acceptance of a pension is the equivalent of "retirement" or separation from employment. [rejecting Employer's argument for a presumption based upon Hensal, Henderson & Republic Steel].
Employer's burden of proof is greater than a mere showing receipt of a pension. Employee receipt of a disability pension (emphasis in court opinion page 19) does not necessarily establish she decided to forgo all employment, at the most it established she could not do her time-of-injury job.
Receipt of a pension has some evidentary weight. it may be probative of a worker's a desire to leave the workforce. But alone, that fact is not equivocal or conclusive evidence, sufficient enough to discharge Employer's burden of proof.
Henderson did not establish a rebuttable presumption that a worker has retired if they accept any pension. "Henderson teaches, when the employer presents sufficient evidence to establish that the claimant may have retired from the workplace, it is the claimant who must show that he or she is seeking employment following retirement from his or her employer, or that he or she was forced into retirement because of the work injury". (slip opinion page 26).
The employer, the moving party seeking to suspend benefits, bears the ultimate burden of proving that the claimant has voluntarily removed himself or herself from the workforce. The factfinder must evaluate all relevant and credible evidence before concluding employer has met its burden of proof.