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

WINDOW SHOPPING NOT SUFFICIENT TO DEFEAT SUSPENSION/RETIREMENT PETITION

See: The Pennsylvania State University/The PMA Insurance Group v. WCAB (Hensal), 948 A.2d 907 (Pa.Cmwlth. 05/19/08)

The parties in Hensal had been involved in extensive and protracted litigation. Claimant had sustained a left shoulder sprain/strain on February 21, 2002. He subsequently applied for a disability pension and conceded during testimony that he had retired effective February 21, 2002. A prior Modification Petition had been granted by way of Decision circulated on June 13, 2005 based on available jobs.

In March 2006, the employer filed a Petition for Suspension "claiming that by retiring, Claimant had voluntarily withdrawn from the work force."

The employer presented deposition testimony of a vocational rehabilitation specialist to establish that employment was available to Claimant within his work restrictions. The counselor identified several positions.

In opposition, Claimant testified that he applied for the disability pension in order to maintain health insurance, hospitalization, vision and other benefits provided by the employer. He indicated he had registered with CareerLink, an organization that provided career services to job seekers, and through his registry was able to go to the CareerLink office or its website to search for available jobs. He testified he periodically checked the CareerLink website as well as other job websites and newspaper ads and had not found work. He testified he was interested in a position with Pennelec, but no openings were available, and that he had inquired about a position at the local Driver’s License Center, but was advised he had to pass a civil service test to be eligible for that position.

On cross-examination, Claimant conceded he did not have documentation to confirm he was searching for employment, such as newspaper want-ads or job applications submitted. He conceded he last visited the CareerLink office one week prior to the hearing and had not been to the office before that visit. He had inquired about the driver licensing position two weeks prior to the hearing and although he was in the process if applying for a civil service test, he had not applied for the position itself. He also admitted he had not contacted anyone at the employer about available work since the last litigation and did not apply for assistance from the Office of Vocational Rehabilitation.

The WCJ accepted Claimant’s testimony as credible and found he had not voluntarily removed himself from the work force because he was seeking employment. The Judge concluded, however, that the employer established that Claimant’s maximum earning capacity was $213.67 so that loss of earnings beyond that sum arose from the work injury, which was employer’s responsibility.

Employer appealed arguing that Claimant had not met his burden of showing that he had not withdrawn from the work force and that benefits should have at least been suspended for the period from the filing of the petition until two weeks before the WCJ’s hearing because Claimant had temporarily retired during that period. The Board affirmed the WCJ finding Claimant’s testimony supported his Findings of Fact and that there was no legal authority to support employer’s second argument.

The Commonwealth Court took a more thoughtful look at the issues. The Court cited Southeastern Pennsylvania Transit Authority v. WCAB (Henderson), 669 A.2d 911 (1995). The Court explained that where a Claimant accepts a pension, that Claimant is presumed to have left the work force entitling an employer to a suspension of benefits unless Claimant establishes that (1) he is seeking employment or (2) the work related injury forced him to retire.

The Court noted that Claimant did not contend that the work injury forced him to retire so the only question was whether Claimant was actively seeking employment. In this regard, the Court concluded that based on the facts as found by the WCJ, Claimant failed to show that he was engaged in a good faith effort to seek employment. The Court explained, "searching the internet and newspaper ads for jobs, without more, does not constitute a job search; it constitutes "surfing" the web and reading the newspaper – it is window shopping." The Court further explained that to show a good faith effort, a Claimant has to demonstrate he applied or sent applications for employment or other indicia that he was actively applying for employment. Where Claimant failed to meet such burden the Court concluded employer was entitled to a suspension and reversed the Decisions of the WCJ and WCAB.

Practice Pointer: A careful review should be made of all claims where Claimant is receiving pension benefits. Both the Commonwealth Court and Supreme Court have held such Claimants to a very high standard to demonstrate that they have not retired from the work force. As outlined above, "window shopping" is not sufficient to establish an active job search, nor is reviewing newspaper ads or making an internet search.