Fried, Kane, Walters, Zuschlag and Grochmal PO Box 955
Gibsonia, PA 15044-0955

Employer obtains retroactive suspension order based upon Employee’s retirement in the context of an Employee Petition for Penalties based upon the Employer unilateral suspension of benefits without a compensation agreement or WCJ order, the Employer was awarded a retroactive suspension of benefits to the date of pension documents and penalties were not assessed for a unilateral suspension of TTD benefits.

See: Krushhauskas v. WCAB (General Motors) Pa. Cmwlth.
Entered October 11, 2012

An employee received TTD benefits for a September 2005 right shoulder injury via NCP. In the Spring of 2006 the Employer negotiated a "Special Attrition Program" of "Enhanced Retirement Program" as an incentive for individuals to leave their workforce. The plan was optional and had a 45 day revocation period.

Employee accepted the Special Attrition Plan offer and was paid a lump sum of $35,000 in addition to his retirement pension benefits. He did not sign the proffered Supplemental Agreement for a “termination” status.

Nearly 2 years later, in March 2008 Employee filed a Petition for Penalties for the unilateral suspension of his TTD benefits as of July 1, 2006, the date of the plan and pension documents. Employer witnesses testified and were found credible by the WCJ regarding the information provided to their workers and specifically regarding the documents signed by this Employee. Employee testified that he did not intend to retire, as assertion that was deemed not credible. WCAB affirmed the WCJ decision to grant a suspension order retroactive to the Pension and Plan agreements. As no benefits were due to Employee, no penalties were awarded.

The Commonwealth Court affirmed this decision, reasoning that Employee had voluntarily withdrawn from the workforce and was no longer entitled to work comp TTD benefits. The absence of a Petition by the Employer was not an impediment, as the WCJ could grant relief based upon the evidence presented in Employee petition. Strict pleading is not required in workers’ compensation cases. The important issues were (1) did Employee have notice of the Employer suspension argument (2) did Employee had an opportunity to respond and litigate this issue and (3) was there any prejudice to Employee.

The general rule was cited, where a worker accepts a retirement pension the burden shifted to worker to demonstrate he was seeking employment or was forced to retire due to the injury. The WCJ rejected the credibility of Employee testimony on this point.

The court noted this was not a pension offset issue, so the absence of LIBC forms was not relevant.

Practice Pointer:

A. File a Suspension petition concurrent with the pension documents

- or -

B. File a C&R to coordinate the WC and Pension issues