Fried, Kane, Walters, Zuschlag and Grochmal 625 Stanwix Street, Suite 1404
Pittsburgh, PA 15222
Phone 412-261-4774
Fax 412-261-1225

COURT APPLIES PRESUMPTION OF VOLUNTARY REMOVAL FROM WORK FORCE TO CLAIMANT THAT RECEIVES SOCIAL SECURITY RETIREMENT BENEFITS.

See:Duferco Farrell Corp. v. WCAB (Zuhosky), 989 A.2d 63 (Pa. Cmwlth.1/14/10)

Claimant filed a Petition for Reinstatement. The WCJ granted the same. The Commonwealth Court reversed such Decision concluding that Claimant had voluntarily removed himself from the labor market.

In Duferco, Claimant stopped working a light duty position on January 27, 2007. He underwent total knee replacement surgery on January 31, 2007. He thereafter filed a Petition to Reinstatement his workers’ compensation benefits.

In May 2007, Claimant testified that he received Social Security Retirement benefits. He agreed he told his employer he would like to retire but testified he had not yet made an application for retirement. He did receive a union pension.

In March, 2008, Claimant attempted to return to work but after two to three days he stated his knee was swollen so he could not continue.

Claimant testified in September, 2008 that he did not submit any job applications nor has he looked for work. He did testify he was willing to accept work if offered to him within his restrictions. He agreed his own doctor released him to modified work.

The WCJ concluded Claimant had not retired and that the Employer had no reasonable contest to the petition.

The Court noted that it was addressing an issue of first impression, i.e., whether a Claimant’s receipt of a pension from a source other than the Employer triggers the presumption that Claimant has withdrawn from the work force.

The Court reviewed the case law regarding voluntary removal from the work force and cited Pennsylvania State University v. WCAB (Hensal), 948 A.2d 907 (Pa. Cmwlth. 2008). The Court noted that where a Claimant accepts a pension, the Claimant is presumed to have left the work force unless the Claimant establishes that he is actively seeking employment or that the work related injury forced him to retire. To show that he is actively seeking employment, a Claimant must engage in a good faith job search. In order to show that a work related injury forced him to retire, Claimant must establish that the work related injury made him incapable of working in any job in the entire labor market.

In the instant case, the Court highlighted the fact that Claimant admitted that he told his Employer before his knee surgery that he would like to retire, when he did not receive a reinstatement of benefits following such surgery he took Social Security Retirement benefits and union pension. However, Claimant did not apply for retirement with the Employer. The Court reasoned it would be overly burdensome for an Employer to prove a Claimant has no intention to continue to work where the Claimant has mentioned to the Employer that he would like to retire, has taken Social Security Retirement benefits and has taken a union pension. The Court did not believe it would be overly burdensome for a Claimant to prove he intends to continue working under these circumstances and that the Claimant need only show he is applying for jobs within his physical restrictions. Accordingly, the Court concluded it was presumed that Claimant voluntarily removed himself from the labor market. Claimant had the burden of rebutting that assumption by establishing that he engaged in a good faith job search or that his work related injury made him incapable of working at any job in the entire labor market. Claimant failed to meet that burden.

Practice pointer: A careful review should be made of all claims where Claimant receives pension or Social Security Retirement benefits. Both the Commonwealth Court and Supreme Court have held such Claimant’s to a very high standard to demonstrate that they have not retired from the work force. As outlined above, there is a presumption of voluntary removal and Claimant has a strict burden of proof to establish an active job search. Claimant must demonstrate that he or she is actively applying for work to defeat such a Petition. We have had several cases where in attempting to meet such burden, Claimant has actually received job offers and returned to the work force.