Fried, Kane, Walters, Zuschlag and Grochmal 625 Stanwix Street, Suite 1404
Pittsburgh, Pennsylvania 15222
(412) 261-4774 - fax (412) 261-1225

THE CLAIMANT HAS THE BURDEN TO REBUT THE CONCLUSION THAT
CLAIMANT LEFT THE WORK FORCE BY ACCEPTING A PENSION

The claimant must establish (1) he is seeking employment or (2) the injury forced him to retire.

See: Mason v. WCAB (Joy Mining Machinery), (Pa. Cmwlth. 03-18-08)

The Commonwealth Court addressed the claimant’s burden of proof to establish entitlement to worker compensation benefits after voluntary acceptance of a pension. The workers’ compensation judge granted employer’s Modification Petition based upon credible testimony from a vocational expert of claimant’s post-injury earning capacity. The workers’ compensation judge did not grant a suspension based upon claimant’s removal from the work force. The Appeal Board granted a suspension based upon claimant’s failure to apply for suitable alternative employment after his retirement.

The Commonwealth Court reviewed the evidence found credible by the workers’ compensation judge, including employer’s IME physician’s opinion that claimant was capable of performing medium-duty work. The claimant was found to not apply to available employment in a good faith manner. (Kachinsky type job placement?). Testimony reflected that claimant did not apply for positions because he thought he would forfeit his Social Security Benefits as well as his employer-funded disability pension, if he returned to work. The testimony reflected that prior to filing for disability pension, claimant met with employer and union representatives to determine that he would not be reinstated to employment due to bending and stooping job requirements. The claimant’s rebuttal testimony was that he planned on returning to work after his disability pension but would only return to work at a good salary. The claimant testified that he submitted job applications.

The Commonwealth Court noted that claimant did not challenge the modification of benefits based upon the credible vocational and medical evidence. The claimant argued that the WCAB imposition of a suspension was erroneous as he did not remove himself from the work force, rather the employer refused to reinstate him to his former position (for which he did not have medical clearance).

For disability benefits to continue following acceptance of a retirement pension, a claimant must demonstrate that he is seeking employment after retirement or that he was forced into retirement because of his work-related injury. Citing: Henderson. To establish that he was forced into retirement because of his work injury, claimant must demonstrate that he is incapable of working at any job in the entire job market, not just his pre-injury position. Citing: Weis. The other way claimant can establish that he has not left the work force is to show that he is seeking employment by engaging in a good faith job search.

The Commonwealth Court remanded the case for the workers’ compensation judge to make necessary findings regarding reasons for claimant’s departure from the work force. The fact that claimant did not accept employment offered by the employer does not necessarily mean that claimant has left the entire work force. Recall that the workers’ compensation judge incorrectly found that claimant had not left the work force on the mistaken belief that under Henderson all claimant had to show was that his work injury had forced him to retire. The workers’ compensation judge did not make findings as to whether or not claimant established that he was seeking employment, following his retirement, in good faith.

Practice Pointer: In pursuing a suspension status based upon claimant’s departure from the work force following acceptance of an employer-funded pension, it is prudent for defendant to rebut any claimant testimony that he is seeking employment in a good faith manner.