“Severance” Package Under Collective Bargaining Agreement Does Not Trigger “Retirement” Burden of Proof Shift in PA Workers’ Comp

We have seen in recent decisions rendered by the Commonwealth Court of Pennsylvania a trend toward punishing injured workers in PA who take any type of disability or retirement package, almost, seemingly, without regard for the reasons.

In fact, earlier this month we posted a blog entry regarding Duferco Farrell Corp. v. Workers’ Compensation Appeal Board (Zuhosky), where the Court followed this very trend. So, the decision rendered by the Court recently in Polis v. Workers’ Compensation Appeal Board (Verizon Pennsylvania, Inc.), was received as a pleasant surprise.

Here, Mr. Polis had injured his knee (and had surgery for the knee). Eventually, Mr. Polis went back to work, at a light duty job. After some period of time, the employer discontinued the light duty work, leaving Mr. Polis without a position within his physical restrictions. As we commonly see in these situations, Mr. Polis investigated what options were available to put food on his family’s table.

In addition to applying for unemployment compensation benefits, Mr. Polis also applied for, and received, an Enhanced Income Security Plan (EISP) [a form of severance package] under the collective bargaining agreement. The EISP form had checked off “retirement” and an exit interview conducted by the employer had listed the same term. While Mr. Polis testified he had looked for employment on the internet, he did not actually apply for any positions because Verizon Pennsylvania, Inc. was the only company who would employ someone doing that type of work.

Finding that Claimant had not “retired” and thus had not “voluntarily withdrawn from the labor market,” the Workers’ Compensation Judge (WCJ) ordered workers’ comp benefits reinstated (after taking credit for unemployment compensation benefits and the EISP monies). On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed.

Employer argued to the Commonwealth Court of Pennsylvania that Mr. Polis had indeed “retired,” triggering the shift of burdens. As such, since Mr. Polis was not disabled from all gainful employment, and had not conducted what the Court has previously found to be an actual job search (see previous blog entry on the Hensal case), the reinstatement must be denied.

In an unexpected turn, the Court rejected Employer’s appeal and affirmed the WCJ and WCAB. The Court said that Hensal did not apply because Mr. Polis was forced out of his job, did not take a retirement or disability pension (the EISP was solely due to the loss of the job, the Court noted) and never showed an intention to retire (the WCJ found that Employer completed the form stating “retirement,” not Mr. Polis). Since Mr. Polis did not “retire,” and “voluntarily withdraw from the labor market,” there was no shift of the burden of proof, and no requirement that Mr. Polis prove he was actually looking for work. Interestingly, the Duferco case was not even mentioned by the Court.

As you can see, workers’ compensation in PA is one of the more active areas addressed by the appellate courts in Pennsylvania. This is why our firm limits its practice to just representing injured workers in their PA workers’ comp cases. By limiting our practice to one area of law, we are able to stay in touch with legal and political developments impacting our clients. We offer free consultations, and encourage all injured workers to have experienced legal representation. Feel free to call or e-mail our offices for more information, or to schedule a consultation.