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CLAIMANT IS ENTITLED TO REINSTATEMENT FOLLOWING ELIMINATION OF LIGHT DUTY WORK.

See:Polis vs. WCAB (Verizon Pennsylvania), 988 A.2d 807 (Pa. Cmwlth. 2/5/10).

Polis is interesting where the argument was made that Claimant retired from his employment. In Polis, Claimant sustained a work injury on 12/18/03 and thereafter returned to modified duty work. In September, 2006, the employer advised Claimant that his light duty job was being eliminated and offered Claimant an Enhanced Income Security Plan (EISP) pursuant to his Collective Bargaining Agreement. Claimant testified that because no other job was offered to him, he elected to take the EISP.

In October 2007, Claimant filed a Petition for Reinstatement alleging that his work injury caused a loss of earning power. Claimant testified that he worked for the employer for forty years and was 64 years of age. He stated that he did not decide to retire from his job with the employer but instead his light duty job was eliminated. He explained an EISP was offered where this is a contractual obligation the employer had when they eliminated a job in a certain working group pursuant to the Collective Bargaining Agreement. Claimant noted he had less than one month to accept the EISP plan. He testified that he had not returned to work but had actively been searching for employment. He admitted his time of injury employer was the only employer that employed people in his type of work. He stated he looked on the internet for positions but had not spoken to prospective employers about available jobs. Claimant testified he did not consider himself retired and if the job he had been performing in September 2006 had not been eliminated, he would still be working there because it was a great job. Claimant did receive unemployment compensation after leaving the employer.

The EISP form was submitted into evidence which indicated that Claimant had received a payment of $66,000.00, an expense allowance of $3,750, and a voluntary termination bonus of $10,000.00. The form indicated Claimant elected to take monthly payments for 48 months. The form further had a checkmark in the “type of separation” box under retirement. Claimant explained his supervisor completed the form checking such box rather than indicating Claimant’s position was eliminated or there was an involuntary separation.

The Judge granted Reinstatement. The WCJ found Claimant’s testimony credible, persuasive and noted it was unrebutted by any employer testimony. Thus, the Judge concluded Claimant had not retired and relied upon the EISP documents in Claimant’s testimony.

The employer appealed arguing that the Judge should have granted a suspension of benefits pursuant to Pennsylvania State University vs. WCAB (Hensal), 948 A.2d 907 (Pa. Cmwlth. 2008).

The court did review the case law regarding voluntary removal from the work force. The court cited the rule that where a Claimant had accepted a pension, the Claimant was presumed to have voluntarily left the work force entitling the employer to a suspension of benefits unless the Claimant established that (1) he was seeking employment or (2) the work related injury forced him to retire. South Eastern Transportation Authority vs. WCAB (Henderson), 669 A.2d 911 (Pa. 1995).

However, the Court determined that Hensal did not apply to the instant case for several reasons. First, the Claimant in that case chose to leave the work place even after being told work was available within his restrictions and he chose to apply for a disability pension. In this case, Claimant was forced to leave the work place after his job was eliminated. Secondly, in Polis, Claimant did not receive a pension but a Collective Bargaining EISP “for being forced out of his job.” Thus, Claimant never received a payment characterized as a pension nor was the document in any way related to disability. Thirdly, there was no evidence that Claimant intended to retire based on the Judge’s Findings of Fact.

Accordingly, where Hensal did not apply as Claimant was forced out of his employment and did not receive a pension, Claimant was not required to prove that he sought employment. Instead, the employer must establish earning power.

The court then applied the traditional burden of proof on a Reinstatement Petition. The court explained that when a Claimant returns to work under a Suspension with restrictions attributable to a work related injury (that is, the Claimant returns to a modified position rather than his time of injury position, is subsequently laid off and then Petitions for Reinstatement of Benefits, the Claimant is entitled to the presumption that his loss of earnings is causally related to his continuing work injury. Thus, in the instant case, where Claimant was on modified duty at the time his job was eliminated, his Reinstatement Petition was properly granted.

Practice pointer: As noted in Duferco, the retirement cases remain a viable and powerful argument in suspending benefits. However, there must be some triggering event in order to successfully litigate such cases. For example, in Henderson, Claimant received a pension. In Duferco, Claimant received Social Security Retirement benefits. The court in Polis did not believe the receipt of EISP benefits qualified as any type of retirement.