Pennsylvania Workers' Compensation Lawyer Blog

We have expressed our displeasure for how the Pennsylvania Workers’ Compensation Act treats mental/emotional injuries. As long as the cause of the injury is purely mental/emotional, any resulting disability is only compensable if the cause represents an “abnormal working condition.” The standard for this test varies according to the job in question; a police office, firefighter or other first responder would have a greater burden of proof than an accountant, chef or automobile mechanic, simply because their job tends to expose them to more shocking events.

This issue is dear in our hearts, since we have a case we have discussed on our blog previously, highlighting this ridiculous standard. For those who do not recall, we represent a liquor store clerk who was the victim of an armed robbery. Understandably, the clerk was then disabled by post-traumatic stress disorder. The Pennsylvania Liquor Control Board had the gall to deny the claim, saying that armed robbery at one of their stores was not “abnormal.” (It offends us as taxpayers, and citizens, that the agency openly embraces such incompetence by knowingly exposing their employees to danger, rather than make any effort at a solution).

The case was litigated, with both medical experts agreeing that the clerk had post-traumatic stress disorder, and that he was unable to return to that employment. In defense, the Pennsylvania Liquor Control Board (LCB) showed their training process, which included how to handle an armed robbery, the location and function of panic buttons, and the “open safe” key. All of the training materials, however, stated that the occurrence of armed robbery in a liquor store was “rare,” and that this was an “unlikely event.” Neither the clerk, nor any of the four witnesses presented by the LCB, was ever the victim of an armed robbery. Indeed, the manager of the store at which the clerk worked was not even aware of the procedure following a robbery. The store had panic buttons installed, but did not have any guards.

Based on the evidence presented, the Workers’ Compensation Judge (WCJ) granted the Claim Petition, finding armed robbery to be an abnormal working condition. While the training materials covered the possibility, all of the evidence showed the actual occurrence of armed robbery was rare, making it, by definition, “abnormal.”
The LCB appealed this decision to the Workers’ Compensation Appeal Board (WCAB), who reversed the decision. The WCAB concluded that because the training materials included the possibility of armed robbery, it was foreseeable. And, went the logic of the WCAB, “foreseeable” = “normal.” We then appealed the case to the Commonwealth Court of Pennsylvania, who recently, to our dismay, affirmed the decision of the WCAB.

That the WCJ is the ultimate Finder of Fact seemingly was disregarded by both the Court and the WCAB. The WCJ concluded, based on her review of the evidence, that armed robberies were infrequent and rare, making them “abnormal.” It is absurd that simply because an employer includes an unlikely event in its training program such an event cannot then be “abnormal.” It would appear, since schools and many offices have training and drills on many possible, but unlikely events, such as shootings, bombings and natural disasters, any emotional injuries should any of these events actually happen would not be compensable since they were “foreseeable.”

This is such a ridiculous standard that it is time to beg the Pennsylvania legislature to fix this matter, since the Courts have now taken to fact-finding to completely emasculate the notion of mental injuries in Pennsylvania. Is this what we are to expect from legislation which was initially designed to protect the injured worker?

Regular readers to our blog know that, in addition to noting recent court decisions involving workers’ compensation matters in Pennsylvania, we also try to keep injured workers informed about any developments in diagnosing or treating work injuries. Along these lines, one of the frequent topics we blog on is pain, and how it can be relieved. We’ve looked at what methods may be coming in the future, and at other possible contributions to pain.

We have also discussed acupuncture in the past. This treatment method has always been controversial, perhaps even more so in the workers’ compensation setting. Like chiropractic treatment, acupuncture is frequently met by the workers’ compensation insurance carrier with Utilization Review (to challenge whether the treatment is “reasonable and necessary”). According to a recent article published on the website of the International Anesthesia Research Society, there is proof that acupuncture actually can help with certain physical ailments, including post-operative pain, and chronic pain.

This article cited various studies, where acupuncture was tested against a placebo (sort of faked acupuncture). In at least one of these controlled studies, it was definitively shown that “acupuncture is more effective than placebo.” This result led the authors of that study to conclude that, “acupuncture is effective for the treatment of chronic pain and is therefore a reasonable treatment option.” In fact, at least one study showed that the difference between acupuncture and placebo is similar to the difference between medication and placebo, in relieving pain with arthritic knee conditions.

There were some studies, however, which cast doubt on whether acupuncture provides actual pain relief. Given the fact that acupuncture has far fewer side effects than other treatment options, such as medications, and there are studies demonstrating the value of acupuncture in relieving chronic pain as well as these other methods, there seems little reason why injured workers in Pennsylvania would not try acupuncture as a method of managing their chronic pain.

As we discussed previously, premiums for workers' compensation insurance in Pennsylvania have been reduced for the second consecutive period. Apparently, all is not well for the insurance carriers in PA however. It appears a change in the law has made several insurance carriers refuse to cover fire departments in Pennsylvania.

In 2011, the PA legislature passed Act 146. As we discussed on our blog, this law created a presumption that cancer in a firefighter was related to his or her employment for the purposes of workers' compensation benefits (meaning the burden of proof would fall to the employer to prove the cancer was not related to work activities). The period within which a claim can be reported was also significantly extended.

According to a recent article on Firehouse.com, these changes to the Pennsylvania Workers' Compensation Act made several insurance carriers drop the workers ' compensation coverage for fire departments in PA. Of course, communities or townships can self-insure for workers' comp, or they, like any employer, can turn to the State Workers' Insurance Fund (SWIF), a quasi-government insurance carrier which will offer coverage to any employer in PA.

While we, like any citizen, hate to see higher costs to a governmental entity, we also recognize the extreme dedication and sacrifice made, every day, by these brave men and women. We hope the legislature does not modify this law, to make the insurance carriers happy at the cost of the health and welfare of our courageous firefighters.

In the Pennsylvania workers’ compensation system, we frequently see cases involving carpal tunnel syndrome (CTS). As many of you know, this condition occurs when the median nerve is entrapped in the wrist. There are many potential causes of CTS, including familial history, certain medical conditions, trauma and certain physical activities. CTS can also occur “idiopathically” (without a known cause). Frequently, we see litigation regarding whether CTS in any given case is related to the work activities.

Are we all at the same risk to develop CTS? According to a recent study published in the Archives of Physical Medicine and Rehabilitation, and referenced in The Wall Street Journal recently, the size and shape of a person’s hand and wrist can show whether that person is predisposed to the development of CTS. Specifically, if a person has a “short and wide hand with square wrist matching to narrow and deep tunnel entrance,” that person has an increased likelihood for developing CTS. Of course, that leads us into an examination of what causes CTS, and whether CTS in any given case can be accepted as a work-related injury.

According to the University of Maryland Medical Center, “Work that involves high force or vibration is particularly hazardous (to developing CTS), as is repetitive hand and wrist work in cold temperatures.” They also note that repetitive use of the hands and wrists can cause repetitive stress disorder, overuse syndrome and chronic upper limb pain syndrome. Similarly, the National Health Service in the United Kingdom relates that CTS can be triggered by activities with “strenuous grip, repetitive wrist flexion and exposure to vibration,” including motions associated with manual labor. This is consistent with the view of the National Safety Council, who noted that “(r)epetitive manual work tasks requiring a forceful grip and use of vibrating tools can damage the median nerve in the arm, contributing to CTS.”

As you are reading this, also understand that for an injury to be compensable under the Pennsylvania Workers’ Compensation Act, the work duties do NOT need to have CAUSED the CTS. It is sufficient if the work duties “aggravated” the underlying condition, rendering the injured worker disabled. Whether the injured worker may have eventually developed CTS, even without the work activities, is irrelevant. Similarly, whether the injured worker had the size and shape of his or her hand and wrist to be predisposed to CTS has no meaning. We simply take what we actually know – the injured worker performed his or her work duties and developed CTS as a result.

One of the most difficult decisions faced by an injured worker in PA is how to decide who to hire as their worker’s compensation attorney. Many sites, or publications, have a list of attorneys they tout. Maybe they are called “Super” attorneys or “Awesome” lawyers, or some other cleaver marketing name. What standards do they use? Are they objective? Is there really merit in being named? Who knows. Now, however, there is an objective, regulated selection process authorized by the Pennsylvania Supreme Court.

As we mentioned before, Pennsylvania has created a Workers’ Compensation Law Certification process. First, an attorney is screened to be certain he or she possesses the requisite experience to sit for the examination (a minimum of five years practicing in workers’ comp is required). Specific cases must be provided, including briefs and written arguments. The attorney must certify that at least half of his or her practice is devoted to PA workers’ comp matters. Only then is the attorney even allowed to sit for the examination test.

This test was given for the first time in March, 2013. The grueling four hour assessment covered every aspect of PA workers’ compensation law, thoroughly testing each applicant’s knowledge of the workers’ comp system. Both multiple choice and essay questions were involved.

Brilliant & Neiman LLC is proud to report that both of its attorneys, Dina Brilliant and Glenn Neiman, qualified for, and then passed, the examination process. Each is now “Certified as a specialist in the practice of workers’ compensation law by the Pennsylvania Bar Association’s Section on Workers’ Compensation Law as authorized by the Pennsylvania Supreme Court.”

Importantly, at Brilliant & Neiman LLC, no client is handled by an associate, or anyone other than one of the two partners. No matter whether you are represented by Ms. Brilliant or by Mr. Neiman, you are certain to receive the level of care which can be expected by an attorney certified as an expert in the field. Whether they are “Super” or “Awesome” may be a subjective conclusion; however, it cannot be debated that Ms. Brilliant and Mr. Neiman are now certified as specialists in the practice of workers’ compensation law.

Mediation is a growing area in Pennsylvania workers’ comp. As we have previously discussed, a mediation is when an independent party, in this context usually a Workers’ Compensation Judge [WCJ] (other than the assigned WCJ), meets with the parties in an informal setting in an effort to resolve the differences between the parties. The ultimate goal is to achieve a settlement to the case (usually done by “Compromise & Release Agreement”).

Since we at Brilliant & Neiman LLC work with injured workers every day, having constant contact with the Pennsylvania workers’ compensation system, we are well-versed in most aspects of how the system functions from day to day. We are proud that our knowledge and experience will be used by the PA Bureau of Workers’ Compensation, as the Bureau adjusts the system to change with the times.

Since the start of “Mandatory Mediation,” added to the Pennsylvania Workers’ Compensation Act in the 1996 amendments to the Act, the system has been relatively stagnant. Recently, the Bureau has sought a small working group to evaluate the mediation system and see what, if any, changes could be beneficial to the mediation process.

In the near future, a small group of attorneys will meet with Elizabeth Crum, the Bureau’s Director of Adjudication, The Honorable David Cicola (Judge Manager for the Western District), The Honorable Joseph Hagan (Judge Manager for the Southeastern District [Philadelphia and Upper Darby (Delaware and Chester Counties)]) and The Honorable Karen Wertheimer (Judge Manager for the Eastern District [Allentown (Lehigh County), Bristol (Bucks County), Lancaster (Lancaster County), Malvern (Montgomery County), and Reading (Berks County)]).

Both attorneys of Brilliant & Neiman LLC, Dina Brilliant and Glenn Neiman, will be involved in this meeting. The intention of the meeting will be to have an open discussion about the mediation process, where thoughts and concerns of the attorneys can be voiced and addressed, hopefully leading to the entire mediation system being improved.

The general rule in Pennsylvania workers’ compensation is that if a work injury makes you unable to work, you should be entitled to workers’ compensation benefits. One of the exceptions to this rule is when the loss of wages is due to some reason unrelated to the work injury.

Recently, the Commonwealth Court of Pennsylvania addressed this issue in Brewer v. Workers’ Compensation Appeal Board (E2 Payroll & Staffing Solutions). The Claimant injured his low back when he was pinned by a forklift. As is their known policy, the employer had the hospital take a drug test of Claimant after the injury. Claimant failed the drug test, and admitted he used cocaine and marijuana a few days before the work injury. Since the employer has a zero-tolerance policy on drug use, Claimant was fired immediately.

Claimant filed a Claim Petition, seeking payment of his lost wages. In the litigation, the doctor secured by the workers’ compensation insurance carrier testified that the incident at work had caused a herniated disc in the lumbar spine, and that this damaged disc was irritating a nerve (a condition called “radiculopathy”), but that Claimant was capable of working at a light duty position. The employer had a representative testify that light duty work would have been available to Claimant, if he had not been terminated for failing the drug test. The Workers’ Compensation Judge (WCJ) granted the Claim Petition, but suspended wage loss payments, finding the loss in earnings to be unrelated to the work injury. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Upon further appeal, the Commonwealth Court of Pennsylvania also affirmed. Initially, Claimant argued that benefits cannot be suspended here because the workers’ comp insurance carrier failed to issue a Notice of Ability to Return to Work. While the Court agreed that this document is generally a threshold requirement before the workers’ comp insurance carrier can try to suspend benefits based on a job offer or a Labor Market Survey, the Court found this issue different:

“Here, the WCJ found that although Claimant had suffered a work-related injury, his loss of earnings was caused by his misconduct, not his injury. A notice of ability to return to work was not required because Section 306(b)(3) of the Act is limited to modifications based on medical evidence received by the employer. The Board did not err in suspending benefits as of the day of Claimant’s work injury.”

The injured worker then argued that being fired from work was not proof that he did not have a loss in earnings. The Court rejected this contention similarly, noting that the loss in earnings here was the result of the misconduct of the injured worker, having nothing to do with the work injury. An argument that there was not sufficient evidence that Claimant actually failed the drug test was also rejected, since the WCJ credited evidence, including Claimant’s own admission of drug use, that corroborated the drug test. A final argument was not addressed by the Court, since the injured worker failed to raise this argument in the appeal to the WCAB (an argument is waived if not raised in the initial appeal).

Fresh from the PA Supreme Court decision in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), comes a decision from the Commonwealth Court, again addressing the interplay between the concept of “retirement” and the continued entitlement to workers’ compensation benefits in Pennsylvania.

In the matter of Fitchett v. Workers' Compensation Appeal Board (School District of Philadelphia), the primary issue was actually procedural, rather than whether the “retirement” was proven, or which side had the burden of proof. Though other Petitions were pending, the relevant one was a Petition for Termination, alleging that Claimant had fully recovered from her work injury. Notably, in an “interlocutory” order (a temporary order, not usually subject to appeal), the Workers’ Compensation Judge (WCJ) granted Defendant an offset for both a pension and Social Security Retirement (SSR) benefits being received by the Claimant.

While testifying in defense to the Petition for Termination, Claimant was asked whether she considered herself retired. Claimant had responded, “Well, I’m collecting retirement.” In subsequent testimony, she clarified that if not for her work injuries, she had planned to continue working. When asked directly whether she was retired, however, Claimant responded, simply, “yes.” Again, Claimant later clarified that she meant she had to leave her employer due to her injuries. Claimant testified she had not looked for any work, and forms from her treating doctors, wherein Claimant described her occupation as “retired,” were offered into evidence.

The WCJ reviewed deposition testimony of two doctors who had performed Independent Medical Examinations (more accurately known as Defense Medical Exams), and also a deposition of Claimant’s treating neurologist. The WCJ concluded that the work injury was limited to a sprain of the left shoulder, left thumb, neck and lumbar spine, and that all but the left shoulder had healed.

Since Claimant had not fully recovered from the entire work injury, the standard in a Petition for Termination, the WCJ properly denied the Termination. However, though the Defendant never filed a Petition for Suspension, or even placed on record an allegation of Suspension, the WCJ granted a Suspension, based on Claimant’s “retirement” and resulting voluntary withdrawal from the labor market.

In the Findings of Fact, WCJ said:

"The evidence at bar establishes [Claimant] applied for and receives her [Employer] pension and age-related Social Security benefits (N.T., November 2, 2004, p. 59-61), acknowledged to [Neurologist] that she had retired, indicated on an intake sheet of [Second IME Physician] that she retired (N.T. exhibit E-3, p. 11), acknowledged on December 30, 2008 that she “retired” (N.T. December 30, 2008, p. 29) and has not applied for any position in the local economy nor looked for any type of work."

The WCJ did not find the Claimant credible with regard to her intention to work, and did not believe the work injury, consisting only of a sprain, was sufficient to make Claimant disabled from all gainful employment. This decision was affirmed by the Workers’ Compensation Appeal Board.

The Commonwealth Court of Pennsylvania affirmed the WCJ on this issue (the matter was actually reversed in part, but not on any issue relevant to this discussion). Claimant should have been on notice through the proceedings that a suspension of benefits was possible. The “retirement” of Claimant was discussed, and a credit was being taken for pension and SSR benefits. The Court said the parties “fully litigated the issue of whether Claimant voluntary retired from the workforce.”

Under Section 204(a) of the Pennsylvania Workers’ Compensation Act, an insurance carrier must file a Notice of Offset before it can take an offset against certain benefits, such as pension and SSR. In this case, Claimant then argued that Defendant could not take an offset, since no Notice of Offset was filed. The Court rejected this argument, saying the requirements of Section 204(a) only apply when an insurance carrier wishes to take the offset unilaterally; here, the WCJ had issued the interlocutory order, granting the offset. It was also noted that the amounts of each benefit being received were testified to by the Claimant.

One Judge dissented, not agreeing the issue of suspension, of retirement, was ever truly at issue, sufficient to lead to a suspension of benefits. In relevant part, the dissent observed:

“The matter regarding whether Claimant had voluntarily retired from the workforce was incidentally raised, as explained in the majority opinion, on cross-examination and was never the focus of the proceeding. The issue of whether Claimant had voluntarily retired was never raised by Employer either by petition or motion. Based on that scant testimony, the WCJ suspended benefits finding that Claimant had voluntarily retired from the workforce. I respectfully dissent because, based on the “totality of the circumstances,” that issue was not sufficiently raised for the WCJ to be able to consider it.”

Our blog generally contains information regarding workers’ compensation in Pennsylvania, since that is the only type of case we handle. It is interesting, however, for our readers to learn about how the workers’ compensation systems in other States compare to that in PA. To that end, we are proud to present a guest blog from Alex Berman, Esquire, who practices workers’ compensation law in MI:

Guest Blog Post: Beware The Labor Market Survey

I want to thank Glenn Neiman for the opportunity to write today's blog post. It's always a pleasure to speak with an attorney who has devoted his practice to helping people who are injured at work.

While Pennsylvania and Michigan have different workers' comp systems, we can still learn from each other. Here is some information about wage loss benefits and why you should watch out for the "Labor Market Survey."

Both Pennsylvania and Michigan provide wage loss benefits to a person who is injured on the job. The amount and duration will depend upon individual circumstances. One important similarity is the use of vocational data to cut-off the payment of benefits.

Glenn tells me that Pennsylvania law allows an insurance company to reduce or stop ongoing benefits by showing that work is available. It does not matter whether the person is actually earning these wages. This is similar to what occurs in Michigan and presents serious challenges for our clients.

Insurance companies hire vocational counselors to complete Labor Market Surveys. These reports examine a specific geographical area and determine if jobs exist taking into consideration a person's restrictions, qualifications, and training. Controversy arises when the insurance company attempts to use the Labor Market Survey in an unfair way. A person may be told that he or she can work in an occupation never performed before. Some jobs might pay less than advertised or not really exist.

I tell my clients to watch out for certain red flags. Receiving a notice to meet with a vocational counselor is one of those warning signs. You should call an experienced workers' comp attorney if this occurs. You can challenge an unfair Labor Market Survey with your own vocational data. You can also present evidence of a good faith job search to demonstrate that work is not reasonably available.

- Alex Berman is the founder of Michigan Workers Comp Lawyers. He’s been representing injured and disabled workers exclusively for more than 35 years. Alex has helped countless people obtain workers comp benefits and never charges a fee to evaluate a case. He can be reached toll-free at (855) 221-COMP.

Sometimes, one thing naturally follows another. Day follows night. Spring follows Winter. The relationship between the two things makes sense. Then we enter politics, and, as usual, logic and reason seem to trail behind.

We mentioned in previous postings that both the Pennsylvania insurance industry, and the Chamber of Commerce, has been heavily lobbying PA representatives and senators for reform to the Pennsylvania workers’ compensation system. Specific proposals and issues have been raised. One could reasonably draw from this angst that PA workers’ compensation insurance rates were steadily rising out of control. Indeed, one would imagine, given the effects of inflation, that the rates must be significantly increasing beyond normal inflationary levels.

It is most curious, then, that the Insurance Commissioner in Pennsylvania, Mike Consedine, recently proclaimed that workers’ comp insurance rates would actually DECREASE 4.01 percent as of April 1, 2013. For those imagining that this decrease must have followed some enormous increase, Commissioner Consedine noted that this “is the second workers’ compensation decrease in a row.”

Obviously, a decrease in workers’ compensation premiums will reduce the cost of doing business in the State of Pennsylvania, a result to the benefit of employers, employees and citizens of PA. According to the information provided by the Pennsylvania Insurance Department, this reduction in premiums represents a savings of $110 million to employers in PA.

So, given the decreasing cost of workers’ comp insurance in PA, one might ask why
the insurance industry and the Chamber of Commerce remain so focused on taking away the rights of the injured worker in Pennsylvania. Perhaps it is that they are so fixated on reforming workers’ comp in general that they failed to even notice rates are declining? Or, could it be that they value the health and safety of their employees so little that saving even more dollars is a higher priority?

People ask us why our firm limits its practice to representing the injured worker in Pennsylvania. The behavior of the Pennsylvania insurance industry, and the Chamber of Commerce, in trying to fix what isn’t broken, at the expense of their own employees, is the reason. Somebody has to stand behind those who have been injured. We want to be the ones to protect the injured worker from the insurance industry and the Chamber of Commerce.

As attorneys who limit their practice to representing injured workers in Pennsylvania, we see many different conditions which affect various parts of the body. We see injuries to the feet, ankles and knees, the hands, arms and shoulders, the neck, back and the head. The constant? Well, that’s easy – pain. Often severe and devastating, the vast majority of injuries we see cause various degrees of pain.

Given our experience in dealing with folks in debilitating pain, we always have an eye on medical developments and research, especially when it comes to new ways of dealing with pain. And that is what makes the concept of a wearable pain patch being developed by Thimble Bioelectronics, and reported on Gizmag.com, so interesting.

This device is not your typical pain patch, like Duragesic or Fentanyl, which delivers regulated dosages of pain medication through the skin. This new device would actually be a miniature TENS unit (Transcutaneous Electrical Nerve Stimulation). A TENS unit delivers low voltage electrical stimulation, which provides relief without the use of heavy duty narcotic medications, which contain dangerous side-effects.

Instead of needing to use a full size TENS unit for relief, with this device, the injured worker would merely stick on a patch, roughly the size of a band-aid. Unfortunately, this device is still being developed, so it does not appear to be of any immediate help. However, it is always good to see things on the horizon which can potentially provide relief to the injured worker in PA.

As readers of our blog surely know by now, the relationship between the “retirement” of an injured worker and continued entitlement to Pennsylvania workers’ compensation disability benefits is a frequent topic in appellate litigation. The decisions in both the Commonwealth Court of Pennsylvania and the Supreme Court of Pennsylvania are regular enough that we, as attorneys who limit our practice to representing injured workers in PA, need to stay informed to best protect our clients.

Back in 2010, we discussed the decision of the Commonwealth Court of PA in the case of City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson). In that case, the Commonwealth Court established that the taking of a disability pension, as opposed to a retirement pension, was not an indication of retirement. Therefore, the Court held that the workers’ compensation insurance carrier still had to prove that work was available to the injured worker in order to obtain a suspension of her workers’ compensation disability benefits. In 2011, we reported that the workers’ comp insurance carrier had filed a petition for review with the Supreme Court (Requested “allocatur”) and the Court granted the allowance of appeal.

Recently, the Supreme Court of Pennsylvania issued a decision, affirming the decision rendered by the Commonwealth Court. However, whereas the Commonwealth Court drew a distinction between a “disability” pension (as in this case) and a “retirement” pension, the Supreme Court held that the taking of a pension, regardless of what type of pension, does not (by itself) trigger any type of presumption (or in other words, a workers’ comp insurance carrier must prove more than that the injured worker took a pension to show that the injured worker “retired,” to obtain a suspension of the workers’ compensation disability benefits).

As the Supreme Court observed, the argument advanced by the workers’ comp insurance carrier did not make sense to lead to a presumption of retirement:

“Furthermore, we do not believe it self-evident, or even logical to presume, from
the simple fact that a claimant accepts a pension, a conclusion that the claimant has
completely and voluntarily withdrawn from the workforce, or is prohibited from working
in any capacity.”

The Court went on to say that the taking of a pension is still relevant. It may be used by a Workers’ Compensation Judge (WCJ) as a “permissive inference” that an injured worker is retired, but it is only a single factor in the analysis. As the Court said, “the receipt of
a pension is not sufficient evidence, in and of itself, to discharge the employer’s burden
of proof.” The proper course for a WCJ is to examine all of the evidence, not just that single fact, and consider the taking of the pension in the context of the totality of the circumstances. According to the Court, relevant factors may include, “the claimant’s receipt of a pension, the claimant’s own statements relating to voluntary withdrawal from the workforce, and the claimant’s efforts or non-efforts to seek employment.”

Here, the WCJ found that the injured worker was seeking employment, and that she would have been working had the Employer not terminated her modified-duty job. Thus, the totality of the circumstances indicated that the injured worker had not “retired,” so the workers’ comp insurance carrier was not entitled to a suspension of benefits.