Weekly Case Law Summary: Week ending March 29, 2013

03.29.13

This case is the first reported decision since our last summary which covered the week ending 2/2/2013.

Retirement/Voluntary Removal from Work Force:

City of Pittsburgh and UPMC Benefit Management Services, Inc. v. WCAB (Robinson)., No. 18 WAP 2011, Decided March 25, 2013.

Claimant was injured while working as a police officer, but employer was able to provide light duty work. Claimant then suffered a further work injury while driving to work related medical treatment. Claimant became disabled; the employer issued an NCP, and paid benefits. Claimant then applied for and received a disability pension which only required proof that claimant could not perform her time of injury duties as a police officer. Eventually, claimant was examined by an IME doctor who agreed she could not work as a police officer but found she could perform modified-duty work and completed a physical capacities form. A Notice of Ability to Return to Work was sent to claimant. Employer then filed a suspension petition alleging claimant had voluntarily removed herself from the general labor market and was not looking for work. Claimant denied the allegations, claiming she was still looking for work.

The WCJ denied the suspension petition, finding that claimant had not removed herself from the workforce. The Appeal Board and the Commonwealth Court affirmed.

The Commonwealth Court adopted a "totality of circumstances test" to determine if employer has proven that a claimant retired and removed herself voluntarily from the general workforce. In essence, all the facts are analyzed in determining whether a voluntary removal has taken place. In this case the Commonwealth Court affirmed the denial of employer's suspension petition after looking at all the evidence. Claimant accepted a disability pension that only required medical evidence that she could no longer work in her time of injury job as a police officer. This type of disability pension did not establish that claimant was removed from the general workforce; it merely established that she was unable to continue working her regular job. Claimant also did not apply for a retirement pension and would have returned to the light duty job if employer had not eliminated it. In addition after employer sent the Notice of Ability to Return to Work, claimant registered at the local Pennsylvania Job Center, seeking employment.

The Supreme Court affirmed and agreed with the need to look at the totality of circumstances in these cases to determine if the claimant has removed herself from the workforce. Based on the evidence presented in this case the Court agreed that employer failed to establish a voluntary removal from the workforce.

Comments:

Even if a claimant has accepted a retirement pension and old age social security income, claimant can still defend against a suspension petition alleging retirement by providing testimony that she continues to seek employment and demonstrates her efforts to obtain work. If the WCJ accepts this testimony as credible, then a suspension will be denied.

The personnel that a claimant has contact with in applying for a retirement pension or disability pension should be questioned to see if a claimant made any statements that she had no intent to work once she received the pension. In addition some retirement pensions do not allow a retiree to work in any capacity, which establishes the removal from the work force. If possible, the retirement and disability pension plan documents should be reviewed by counsel to see if they contain any helpful language.

Media Contacts

Sara L. De Long
267.295.3377
sdelong@wglaw.com

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