Taking Pension Not Necessarily “Retiring” in PA Workers’ Comp

**Update – On April 4, 2011, The Supreme Court of Pennsylvania accepted appeal in the Robinson case. Therefore, what we have written here about the status of the law in Pennsylvania may change. Stay tuned for more details!**

In this blog, we have addressed the consequences of “retirement,” as it affects PA workers’ compensation cases, on several occasions. As far as we could tell, taking a pension from an employer led to a finding that an injured worker had “retired,” triggering the draconian consequences of placing the Pennsylvania workers’ comp benefits in jeopardy. Specifically, we addressed the Hensal case, which seemed to suggest the act of simply taking a pension created a presumption that an injured worker had “retired,” or, in PA workers’ comp language, had voluntarily withdrawn from the labor market.

Recently, however, The Commonwealth Court of Pennsylvania issued a decision in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson). While this decision may have made a complicated issue even more convoluted, it also sprinkled in a desperately needed dose of reality and compassion for the injured worker. In essence, this decision guided us on how to determine when an injured worker is “retired.”

In this case, the injured worker was performing light duty work for her pre-injury employer, until the employer stopped making such work available to her. At that point, the injured worker filed for a disability pension. The employer then (heart of gold these employers have) filed a Petition to Suspend PA workers’ comp benefits, because they felt the taking of the pension meant the injured worker had voluntarily withdrawn from the labor market.

The Workers’ Compensation Judge (WCJ) denied the Suspension Petition, finding that the injured worker was forced into retirement by her employer, and that she did then continue to look for work after the “retirement” (though the record showed Ms. Robinson made only one trip to a local job center long after the “retirement” and looked at some other jobs, applying for none). Since the burden of proof then shifted to the employer to show jobs were available to Ms. Robinson, and the employer failed to meet this burden, the WCJ denied the Petition for Suspension. On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed the decision of the WCJ.

Upon further appeal, the Commonwealth Court of PA also affirmed. The Court found the issue to be whether the injured worker had actually “retired.” If so, then the standard discussed in our previous blog entries was to be used (There would be a presumption that the injured worker voluntarily withdrew from the labor market, so the burden of proof would be on the injured worker to show either that he or she is disabled from ALL employment, or that he or she is continuing to look for work). On the other hand, if the injured worker had not retired, then the burden of proof remained on the employer to show there was work available within the injured worker’s physical restrictions.

In examining the situation of Ms. Robinson, the Court saw that she filed for a disability pension, rather than a retirement pension, noting that the disability pension only stated that she was not capable of her pre-injury job (not that she was not capable of any job). Ultimately, the Court found that the employer failed to prove Ms. Robinson intended to “terminate her career” by retiring. Therefore, there was no presumption, and employer was required to show job availability (which the employer did not). Note, though, that three Judges on the Court dissented from the majority view, and would have granted the Suspension Petition.

If this sounds complicated to you, join the club. These issues get very thorny and vary widely depending on the facts in each case. Injured workers often ask us when they need to obtain a PA workers’ comp attorney. It is situations like these, where an injured worker may take an action, seemingly totally unrelated to the workers’ compensation case, that makes us advise injured workers to have an attorney as soon as possible.