Monday, November 30, 2015

Employee Voluntary Withdraw from Workforce- proceed with Caution!

An employer may pursue a petition for suspension of indemnity wage loss benefits based upon (1) an offer of a job, (2) performance of an Earning Power Assessment (EPA), or (3) proof  that the employee has voluntarily withdrawn from the workforce.

The "withdrawn" argument does not require the Employer to prove the employee is physically able to work or that available work was offered or referred. The Employer need not show a change of physical condition or proof of job availability. See: Mendes v. WCAB (Lisbon Contractors Inc. ) Pa. Cmwlth. 2009.

However, assertion of the withdraw argument is not a simple remedy. A number of additional legal arguments are intertwined. This is where pursuit of this remedy can get confusing.

There are several indicia of "withdrawn".
One is not actively seeking employment.
One is receiving  a disability pension.
One has physically  relocated.
... Or a combination of the above.

Chesik v. WCAB (Department of Military and Veterans' Affairs) No. 758 C. D. 2015, is a decision of a panel of the Commonwealth Court, authored by President Judge Pellegrini on November 9, 2015.
The withdraw argument is discussed in terms of .........

Factual and Procedural Background
Employee suffered a work injury in July 2009, a cervical sprain/strain. She moved from Scranton PA to Lovelock Nevada in December 2012. Employer filed a petition to Suspend indemnity wage loss benefits in March 2013, asserting Employee voluntarily removed herself from the workforce.

Employee testified she moved to Nevada for the warmer climate as she did not do well with the Scranton weather. She said she has (non-work related) lupus and fibromyalgia and "that was the main reason I moved to a warmer climate ". She met a friend online, visited in 2012, "researched" Southwest climates and then relocated. She has a Nevada drivers license. It is her intention to remain indefinitely. She has not worked or looked for work in any capacity. She went for one local  physician visit in February 2013 but she has not pursued any other care. She did not consult with her PA physicians before relocating.

Employee retired from her position with Employer in October 2012 and she applied for disability pension benefits in December 2012. She has no income beyond her work comp, Medicare and disability pension.

She described daily pain in her neck, hands and arms as a result of the work injury. She acknowledged that when she relocated she could not work anywhere in Scranton. " moving to Nevada (she) took (herself) out of the work force at least in Scranton PA and in the region".
... But somewhat inconsistently, she said (the obligatory) it was not her intention to remove herself from the workforce when she moved to Nevada , stating , "if there's a possibility that I could work, I would love to work". (Just not yet doing so).
(NOTE: this type of testimony - "window-shopping" -  was discounted by Judge Pelegrini in the earlier 2008 Hensal decision ).

WCJ Decision
Employer suspension petition GRANTED.
WCJ reasoned Employee voluntarily removed herself from the workforce - not because of her work related condition - rather because of her non-work related conditions of lupus and fibromyalgia, which preexisted for 12 years. She did not consult with her physicians, the decision to move was solely her own, along with her decision to take her pension and remove herself from the workforce.

WCAB affirmed the WCJ Suspension order.

Commonwealth Court Decision
Suspension reversed.
(1) Employee's permanent change of residence does not constitute a voluntary removal from the workforce. (Distinguishing the decisions in Blong, Smith and Mendes).
(2) There were no other objective facts - in addition to her acceptance of the disability pension - to support a conclusion that she withdrew from the workforce.

Why does the Employer lose?
I'm not certain.
The Pennsylvania Supreme Court clarified/established the "withdrawn from the workforce" rule in City of Pittsburgh v. Robinson 67 A.3d 1194 (Pa. 2013) (Robinson ll).
Where the Employer asserts the employee has withdrawn from the workforce, the Employer has the burden to prove that the employee has voluntarily left the workforce. Employee has not left due to disability from the work injury.
Acceptance of a pension- much less a disability pension- does not lead to a presumption that the employee has retired. Acceptance of a pension may support an inference of retirement- one which must be considered in the context of the totality of the circumstances.
Evidence of retirement includes receipt of a pension together with employee's own statements
relating to work and the efforts or non-efforts at seeking employment.
Employer is not required to prove employee's subjective state of mind regarding work/retirement.
If the Employer establishes sufficient evidence to support a finding that the employee has voluntarily
 left the workforce, then the burden shifts to employee to show that there has been a compensate loss of earning power.
Employee can assert that post-injury physical conditions limit the ability to work.

Generally, if the Employer fails to prove retirement or withdraw from the workforce, then Employer must produce (1) medical evidence of a change in employee's physical condition and (2) evidence of a job referral to an open job which fits the occupational category for which employee has been given medical clearance. (See: Kachinski).

In CHESIK, the court discusses:
(1) "Earning Power" is determined at Section 306(b)(2) ... Partial disability applies if claimant is able to perform work ... considering residual productive skill, education. age...
(2) 306(b)(2) Language stating ... If claimant does not live in the Commonwealth ... THIS contemplates a claimant could relocate and these provisions direct how one is to determine earning power ...
WAIT a minute... Why are we not talking about retirement, pension, job search issues???
YES, if Employer does not prove retirement or withdrawal from the workforce, then you need to do the Kachiski thing or the Labor Market thing.

In CHESIK the WCJ is said to err in concluding Employee removed herself from the workforce by relying ONLY on her permanent relocation to Nevada.
Similarly the WCJ can not solely rely upon her receipt of a disability pension to find a permanent separation from the workforce.
... OK.
I agree each alone does not automatically meet Employer burden of proof ...
But both are present here ... PLUS Employee's statements - she relocated due to her non-occupational medical conditions ... AND her actions- or non-action in seeking employment!

In Hensal we are told a good faith job search includes actual job applications not just surfing the Internet or reading the newspaper. HERE that effort is lacking ... But does not merit any discussion or consideration.

(1) Pursue the "Withdrawn from the workforce" argument with caution. You may prevail before the fact-finder, but lose on appellate review ... Based upon an unsatisfactory analysis.
(2) Consider pursuing two alternative arguments (A) withdrawn from the workforce, and (B) job offer evidence, and (C) earning power assessment evidence. Yes this is somewhat duplicative and redundant ... But you have three chances to prevail.

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