Retirement= Suspension ... an emerging theme

Retirement of Employees receiving workers compensation benefits has been a recurring theme.
An Employer may pursue a suspension of indemnity wage loss benefits, where an Employee has retired and withdrawn from the workforce.
The Employer does not need to establish the availability of suitable work, where the Employee has retire from the workforce. The Employee may continue to receive work comp indemnity wage loss benefits, where he/she has demonstrated a continuing effort to seek employment OR the work-related injury forced the Employee to retire.

The Commonwealth Court employed a "totality of circumstances" analysis of the evidence of "retirement" or "withdraw" from the workforce in its decision at:
City of Pittsburgh v. WCAB (Robinson) 4 A.3d 1130 (Pa. Cmwlth. 2010).
This decision was affirmed by the Supreme Court of Pennsylvania on March 25, 2013.

On April 3, 2013, the Supreme Court of Pennsylvania declined the Petition for Allowance of Appeal, filed on behalf of Employee, Thomas Krushauskas v. WCAB (General Motors), No. 877 MAL 2012.

In Krushauskas the Commonwealth Court determined there was substantial credible evidence in support of a finding of fact that Employee had voluntarily retired from the workforce and was not entitled to indemnity wage loss benefits.

An second significant issue on appeal was whether the Employer was required to file a separate suspension petition raising the retirement issue.

[Employee also argued Employer took what amounted to an illegal pension offset against his work comp benefits without filing the appropriate LIBC forms. This argument was rejected.]

In Krushauskas, the evidence of retirement included Employer testimony and documents signed by Employee, accepting an "Special Attrition Plan" offer of Employer.
The documents provided employee "retire effective the first of the month...". 

Employee testified that: he was not seeking employment; he did not decide to retire; that he does not feel sufficiently recovered to return to work.
This testimony was deemed "not credible" by the Workers' Compensation Judge.

The Krushauskas Commonwealth Court opinion cites its decision at City of Pittsburgh v. WCAB (Robinson).

The Argument that the Employer must file a separate Suspension Petition to raise the "retirement" legal argument, was rejected by the court in Krushauskas.

The recent Commonwealth Court opinion at Fitchett v. WCAB (School District of Philadelphia) (Pa. Cmwlth. April 8, 2013) cited as authority its decisions at Krushauskas and Robinson, for the propositions that:

(1) an Employer need not prove the availability of suitable work when the employer establishes, under the totality of the circumstances, that the claimant has voluntarily retired from the workforce,

(2) where a claimant accepts a retirement pension, she(he) is presumed to have voluntarily retired from the workforce,

(3) in such case, the employer is entitled to a suspension unless the claimant can show she(he) is seeking employment OR that the work injury forced her(him) to retire.

The "Separate Suspension Petition" argument was rejected In Krushauskas and again in Fitchett.

An emerging consensus appears to allow a Suspension remedy to the Employer, in the absence of a discrete "retirement" averment in a petition [or amendment to an existing petition] where:

(1) the claimant has clear notice that a suspension was possible,

(2) the claimant was given an opportunity to defend against it,

(3) the Workers' Compensation Judge is empowered to take appropriate action based upon the
      evidence presented.

Practice Pointers:

A. IMO the best practice is to file a separate petition or amend an existing petition.

B. REVIEW existing open Work Comp files to determine IF an employee has accepted a pension benefit. If so, continue the analysis and determine if a Suspension remedy is available.