Nancy Turner v. WCAB (City of Pittsburgh), No. 347 C.D. 2013 (Pa. Cmnwlth. Ct., October16, 2013)
By: Jeffrey D. Snyder, Esquire
This Appeal was from the granting of the employer’s Suspension Petition. The Commonwealth Court vacated and remanded the Workers’ Compensation Judge’s granting of the Suspension Petition.
The Claimant was injured in a work related motor vehicle accident in 1994, in the course and scope of her employment as a police officer. A Notice of Compensation Payable was issued, after which the Claimant returned to work in a modified duty capacity. The Claimant accepted a disability retirement and did not seek work thereafter.
Her Heart and Lung benefits converted to Workers’ Compensation benefits, based on a determination that her injuries were of a lasting and indefinite nature.
Years later, an IME found that the Claimant had some capacity to work, with a Petition to Suspend being filed by the employer, asserting that the Claimant’s Compensation benefits should be suspended based on her voluntary removal from the work force. The Claimant shoots back that her withdrawal from the work force was involuntary.
The Claimant said she would not have applied for a disability pension if her job had not been removed. Although she agreed that she was not seeking employment, she had enrolled in a Community College where she was taught how to right a resume and participate in interviews. The Claimant completed that program and then entered into an office technology program.
The WCJ granted the Petition to Suspend, accepting the Claimant’s testimony as generally credible, but rejecting her allegation that she had not voluntarily withdrawn from the work force “as she clearly has work capabilities and has admittedly not looked for work since retiring.” The WCJ found that the employer had no obligation relative to providing alternative employment under the circumstances, given the Claimant’s retirement.
The Board remanded for additional evidence on the question of whether the Claimant was forced into retirement as a result of the work injury. The Claimant testified on remand that she tried to go back to a job but could not continue due to pain. The WCJ again granted the Petition to Suspend, finding that the Claimant was capable of performing work within restrictions, but that she had voluntarily removed herself from the labor market. The WCJ concluded that the Claimant failed to establish that she was forced into retirement because of her work injuries or that she looked for work after retirement.
The Board then affirmed the Workers’ Compensation Judge’s Decision on Remand, finding that after an employer establishes that a Claimant has received a disability pension, and a Notice of Ability to Return to Work has been issued, indicating restored earning power, the burden then shifts to the Claimant to rebut the presumption of voluntary withdrawal from the work force.
The Board specifically stated that the Claimant had no legal obligation to look for work prior to the issuance of the Notice of Ability. The Board nevertheless relied on the Claimant’s admission that she had no intention of returning to work at the time she accepted her disability pension, along with the fact that she only enrolled in a skill training program after receiving the Notice of Ability.
On Appeal to the Commonwealth Court, the Claimant specifically took issue with the concept that the receipt of a Notice of Ability, as well as the receipt of a disability pension, is sufficient to raise the presumption of her intention to withdraw from the work force.
The Commonwealth Court agreed with the Claimant, as the Court reviewed the relevant case law regarding the burden of proving job availability in the context of a claim of voluntary retirement from the work force.
The Commonwealth Court noted that an employer was not required to establish job availability where it can demonstrate that the Claimant has voluntarily removed himself from the work force through retirement, citing to SEPTA v. WCAB (Henderson), 669 A.2d 911 (Pa. 1995). The Court relied upon the Supreme Court’s ruling in SEPTA, which held that to avoid a suspension, a Claimant must show that he or she is actively seeking employment after retirement, or has been forced into retirement because of a work related injury.
The Commonwealth Court held that to avoid a suspension of Workers’ Compensation benefits, after a withdrawal from the workforce, a Claimant must show that he or she is seeking employment, post-actual retirement, or has been forced into retirement because of a work-related injury.
The Commonwealth Court’s Opinion in Turner specifically referenced the Supreme Court’s adoption of the totality of the circumstances test in withdrawal from the work force cases, specifically citing to the Supreme Court’s decision in SEPTA. The burden of persuasion remains with the employer to persuade the trier of fact that there is substantial competent evidence of record to establish that a Claimant is able to work post-retirement, but nevertheless is not actively seeking employment and has, therefore, removed themselves from the work force.
In Turner, the Commonwealth Court held that the Claimant’s receipt of the disability pension merely reflected her inability to perform the pre-injury job, and was not proof that the Claimant could not perform any work whatsoever.
Ruling in favor of the Claimant, the Commonwealth Court again remanded the matter back to the WCJ to make further findings as to whether the receipt of the Claimant’s disability pension alone raised the presumption that the Claimant had retired from the work force, therefore, requiring a more complete record be made by the Workers’ Compensation Judge in compliance with the totality of the circumstances standard.
In a Concurring Opinion, Judge Simpson indicated that the issuance and receipt of a Notice of Ability should not become a per se rule as to when a Claimant would have the duty to seek employment, but rather the Notice of Ability should be evaluated by the factfinder in the course of considering the weight of evidence.
Again, the proof must be substantial, in order to convince either a Workers’ Compensation Judge, the Appeal Board, or the Commonwealth Court that an employer has satisfied its burden of proving a voluntary withdrawal from the work force, as opposed to the Claimant being able to prove that the withdrawal is voluntary, and has been caused by the work injury.
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