Disability Pension Does Not Prove Injured Worker “Retired”

As loyal readers of our blog know, “retirement” is a popular tool being used by the workers’ compensation insurance carriers in Pennsylvania to attack the benefits of injured workers in PA. Indeed, the fact that an injured worker can take such an innocent act as applying for a pension, or Social Security Retirement benefits, and jeopardize their entire workers’ comp case, is a large reason why we encourage all injured workers in Pennsylvania to be represented by experienced workers’ comp attorneys, who, like the attorneys at Brilliant & Neiman LLC, are Certified as Specialists in the Practice of Workers’ Compensation Law.

Today, the Commonwealth Court of Pennsylvania decided the case of Turner v. Workers’ Compensation Appeal Board (City of Pittsburgh), which dealt with this “retirement” issue. Here, the injured worker was a police officer who hurt her neck, left shoulder, back, right wrist, and right knee in a work-related car accident in 1994. The injured worker performed a modified duty job for the City of Pittsburgh until 2003, when the City stopped the modified duty program. At that time, Claimant applied for, and received, a disability pension from the City of Pittsburgh.

The workers’ compensation insurance carrier filed a Petition for Suspension, alleging that the application for this pension meant that the injured worker had voluntarily left the labor market, retired in other words, causing a shift of the burden of proof to the injured worker, to show that she was either disabled from all employment, or that she continued to look for work.

Litigation ensued before a Workers’ Compensation Judge (WCJ). During this litigation, the injured worker admitted that she has not looked for work since accepting the pension. Based on the taking of the pension, and the failure to look for work, the WCJ granted the Petition for Suspension. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

On appeal to the Commonwealth Court of Pennsylvania, however, the decision was reversed. The Court cited the recent Supreme Court case of City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), to demonstrate that the acts of the injured worker in this case were not enough to cause a shifting of the burden. Specifically, the taking of a disability pension alone does not trigger a presumption that an injured worker has retired. There must be more. As the Court explained, citing Robinson, “claimant’s receipt of a disability pension merely represented an inability to ‘perform her time-of-injury position’ and was not indicative of a decision to ‘forgo all employment.'”

Since the burden of proof was not properly shifted to the injured worker, whether she had or had not looked for work was not relevant. Though these types of cases often lead to a sense of injustice to an injured worker (often punishing an injured worker for merely accepting a benefit for which he or she had worked his or her whole life), there is a sense of reason in this decision.