Thursday, March 28, 2013

P.S. - Suspension for Retirement/Withdraw Workforce is still a viable Remedy!

On March 25, 2013, the Pa. Supreme Court ruled on the legal issue of an Employer's remedy to suspend indemnity wage loss benefits where the injured employee has "withdrawn" from the workforce via retirement. See: City of Pittsburgh v. WCAB (Robinson) (Pa. 2013).

This decision did not eliminate this remedy, rather this decision refined the Employer's burden of proof for successful Modification/Suspension. Yes, the Employer's burden of proof is somewhat more demanding, than many believed. There is no "presumption" that an Employee has withdrawn from the workforce, merely by receiving a pension benefit. The Employer must assemble evidence of the "totality of circumstances" which demonstrate that the employee is no longer seeking employment.

Importantly, there is no requirement that employee make an unequivocal statement regarding his/her intentions of future employment. Such a statement will be difficult to come by, especially from a worker represented by knowledgeable legal counsel.

Another significant point, is that after Employer presents sufficient evidence to establish that the worker may have voluntarily retired from the workforce,  the burden of proof shifts to the worker to establish that he/she was forced into retirement because of the work injury.

The WCJ must consider evidence beyond the worker's simple receipt of a pension to determine whether a worker has in fact retired from the entire workforce.

The Pa. Supreme Court decision discusses the objective facts which Employer may be present to establish a withdrawal  from the workforce. In many cases we have pursued a Suspension remedy based upon the presentation of those objective facts, beyond mere receipt of a pension, to document a "retirement".

Our Recommendations:

Presentation of all available evidence is always the "best practice".
We have developed a strategy to present evidence from multiple sources:

Employee's statements to supervisors and co-workers;
Employee's medical records;
Pension documents;
Past employee return to work efforts;
Documentation of any employment applications/interviews;
Past Employer modified duty offers & Employee's response;
Employee "self-identification" in financial documents ...

This is a small sampling of the investigation and litigation efforts we have pursued to establish an Employer's remedy for Suspension of indemnity wage loss benefits.
We will continue to pursue this remedy.

The "Retirement" Suspension remedy lives on...

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