The issue of “retirement” and “voluntary withdrawal from the labor market” is one we see often in Pennsylvania workers’ compensation. We have had blog entries on how applying for Social Security Retirement benefits can impact the receipt of PA workers’ comp benefits, and how receipt of pension benefits can have such effect. In fact, I have given a seminar on this very topic in the past.
So, when the Commonwealth Court of Pennsylvania tackles this issue, we certainly take note. Recently, the Court rendered a decision in the matter of City of Pittsburgh v. Workers’ Compensation Appeal Board (Leonard). Here, the Workers’ Compensation Judge (WCJ) granted a suspension of benefits for a “voluntary withdrawal from the labor market,” but did so at a later date than the workers’ compensation insurance carrier wished, and reinstated benefits thereafter when the injured worker “re-entered the labor market.”
If you are a follower of our blog [and thanks for following us!], you can probably guess that this case turns on the facts. The injured worker here was a police officer who suffered a work injury to his forearm and knee. On April 1, 2006, Claimant received a disability pension, though an Independent Medical Examination (IME) [I chuckle every time I actually write “independent” in that context] found that he was able to work at a light to medium duty level.
Based on the IME, the workers’ comp insurance carrier issued a Notice of Ability to Return to Work on August 16, 2007. The injured worker admittedly did not look for any work. Shortly thereafter, the carrier filed a Petition for Suspension, alleging that the injured worker voluntarily withdrew from the labor market.
As noted in the Robinson and Day cases (which, as of this date, are pending appeal with the Supreme Court of Pennsylvania) , the receipt of a pension does not necessarily create a presumption that the injured worker “retired” or voluntarily withdrew from the labor market. Instead, the facts surrounding the situation must be examined. Primarily, one must determine whether the pension was a “retirement pension,” indicting the injured worker is not planning to perform any work, or a “disability pension,” perhaps only indicating the injured worker cannot perform his pre-injury position.
The WCJ here found that the pension at issue was a disability pension, so the WCJ properly refused to apply the presumption the workers’ comp insurance carrier requested. However, the WCJ did suspend benefits as of August 17, 2007, when Claimant received the Notice of Ability to Return to Work. The WCJ reasoned at that point, Claimant knew, or should have known, that he was required to look for work and failed to do so. This indicated a withdrawal from the labor market.
At the same time, the WCJ was convinced that, as of December 1, 2008, the injured worker was looking for gainful employment in good faith. In a previous blog, we mentioned the Hensal case, with the requirements in this area. Since the WCJ is the ultimate finder of fact, the Commonwealth Court accepted the findings of the WCJ on this issue. As such, the decision of the WCJ was affirmed by the Court.