An Employer may petition for Suspension and/or Modification of Workers' compensation indemnity wage loss benefits if the worker has voluntarily withdrawn from the workforce. The Commonwealth Court devised a "totality of circumstances" test for Employer's burden of proof. The Pa Supreme Court affirmed that decision.
Employee was a police officer. She sustained a work injury in 1997. She began working in a light duty office position. In 2001 she was injured in a motor vehicle accident on her way to treatment for the work injury. These new injuries were accepted via a Notice of Temporary Compensation Payable. She did not return to work in the light duty position, nor was she offered any other position.
In 2004 Employee sought and received a disability pension from Employer. Three physician examinations certified she was unable to return to work as a police officer.
In 2007 Employer medical exam concluded she could not return as a police officer BUT she could perform modified work, as specified in the report. Employer sent LIBC 757 form, "Notice of Ability to Return to Work". Employer filed Petition for Suspension averring Employee was capable of work but Employee "has voluntarily removed herself from the work force as she "has not looked for or sought employment in the general labor market". Employee responded she remained attached to the workforce, she is registered with the Pa Job Center and the reason she is not presently working is that employer did not make modified duty work available to her.
WCJ denied suspension and concluded Employee had not voluntarily removed herself from the workforce. The WCJ noted Employer did not make suitable work available and Insurer testimony was that the former modified duty program was abolished in 2003. There was no vocational expert testimony. Consistent with SEPTA v. WCAB (Henderson)(Pa. 1995) the WCJ concluded Employee was forced into disability retirement as a result of her injury, when her modified duty was eliminated.
Commonwealth Court decision was an en banc plurality decision.
[City of Pgh v. WCAB (Robinson) 4 A.3d 1130 (2010)]
HERE employee accepted a disability pension conditioned on her inability to perform her time-of-injury job. She did not accept an "old age" pension or a disability pension that precluded a return to any type of work. WCJ found employee was not working because her modified duty position was eliminated. She was not offered a position within her capabilities, consistent with the 2007 medical exam. In the absence of a retirement and in the absence of a job offer, a suspension was not appropriate.
There is no "presumption" that acceptance of a pension is the equivalent of "retirement" or separation from employment. [rejecting Employer's argument for a presumption based upon Hensal, Henderson & Republic Steel].
Employer's burden of proof is greater than a mere showing receipt of a pension. Employee receipt of a disability pension (emphasis in court opinion page 19) does not necessarily establish she decided to forgo all employment, at the most it established she could not do her time-of-injury job.
Receipt of a pension has some evidentary weight. it may be probative of a worker's a desire to leave the workforce. But alone, that fact is not equivocal or conclusive evidence, sufficient enough to discharge Employer's burden of proof.
Henderson did not establish a rebuttable presumption that a worker has retired if they accept any pension. "Henderson teaches, when the employer presents sufficient evidence to establish that the claimant may have retired from the workplace, it is the claimant who must show that he or she is seeking employment following retirement from his or her employer, or that he or she was forced into retirement because of the work injury". (slip opinion page 26).
The employer, the moving party seeking to suspend benefits, bears the ultimate burden of proving that the claimant has voluntarily removed himself or herself from the workforce. The factfinder must evaluate all relevant and credible evidence before concluding employer has met its burden of proof.