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from the simple fact that a claimant accepts a pension, a conclusion that the claimant has completely and voluntarily withdrawn from the workforce, or is prohibited from working in any capacity.”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.