County of Allegheny v. Workers' Compensation Appeal Board

Dissenting Opinion by

Judge FRIEDMAN.

I respectfully dissent. The majority reverses an order denying the suspension petition filed by the County of Allegheny, Department of Public Works (Employer). In doing so, the majority concludes that Donald Weis (Claimant) failed to prove that his work injury forced him to retire from the entire labor market. (Majority op. at 1, 5.) I cannot agree.

Our supreme court has stated that, for disability compensation to continue following retirement, claimants must show that they are seeking employment after retirement or that they were forced into retirement because of their work-related injuries. Southeastern Pennsylvania Transportation Authority v. Workmen’s Compensation Appeal Board (Henderson), 543 Pa. 74 , 669 A.2d 911 (1995). A claimant may establish his motivation to retire through his own testimony. The Alpine Group v. Workers’ Compensation Appeal Board (DePellegrini), 858 A.2d 673 (Pa.Cmwlth.2004).

Claimant sustained a work-related injury to his left knee on October 22, 1981. (WCJ’s Findings of Fact, No. 1.) On July 14, 1982, Claimant applied for a disability pension pursuant to section 1711 of the Second Class County Code (Code). 1 (WCJ’s op. at 1; WCJ’s Findings of Fact, No. 3; R.R. at 49a.) After considering the application, Employer awarded Claimant a disability pension; Claimant was fifty-two years of age and, but for the injury, would have continued working for Employer. (WCJ’s op. at 1; WCJ’s Findings of Fact, No. 2.) On March 21, 1983, Employer issued a notice of compensation payable (NCP) indicating that Claimant was totally disabled. (WCJ’s op. at 1.)

Claimant filed a third party action in connection with his work-related injury, but the parties settled the matter in 1985. The settlement included the payment of a subrogation claim to Employer and an agreement by Employer to pay Claimant workers’ compensation benefits over his lifetime as long as he remains disabled. In that regard, the agreement stated that Employer would have the burden to prove that Claimant’s condition had improved to the point where Claimant became employable. (R.R. at 17a-22a; O.R., Transcript of Settlement, Claimant’s ex. 2 at 3.)

In my view, there is no question that Claimant proved his work injury forced *268 him to retire from the entire labor market. The workers’ compensation judge (WCJ) found, based on Claimant’s credible testimony, that, but for the work injury, Claimant would have continued working. (WCJ’s Findings of Fact, No. 2; R.R. at 26a.) As stated in Alpine Group, Claimant’s credible testimony is sufficient to prove his motivation for retirement, and Claimant essentially testified that he was forced to retire because of his work injury.

Moreover, Claimant presented evidence that Employer awarded him a disability pension; therefore, as a matter of law, Claimant was unable to engage in gainful employment. 2 See 16 P.S. § 4711. Furthermore, in 1983, Employer issued an NCP wherein Employer admitted that Claimant was totally disabled as a result of his work injury. Claimant also presented evidence that, in 1985, Employer agreed to pay Claimant workers’ compensation benefits for his lifetime, unless Employer proved that Claimant’s condition improved to the point where Claimant was employable. Such evidence constitutes an admission by Employer that, as a result of his work injury, Claimant was unemployable. Inexplicably, the majority fails to consider this evidence.

Clearly, during the initial years of Claimant’s retirement, Employer did not question the fact that Claimant’s work injury had forced him to retire from the entire labor market. In fact, when Employer filed its suspension petition on December 10, 2001, nineteen years after Claimant’s 1982 retirement, Employer alleged that Claimant voluntarily withdrew from the work force as of December 5, 2001. 3 (WCJ’s op. at 1; R.R. at 2a.) Moreover, in support of the petition, Employer presented the expert testimony of Alan H. Tissenbaum, M.D., who examined Claimant on July 6, 2001, and opined that, at that time, Claimant was capable of doing sedentary work. 4 (WCJ’s op. at 1; R.R. at 93a, 97a-98a.) Thus, while Claimant presented credible evidence that his work injury forced him to retire from the entire labor market in 1982, Employer presented no evidence that Claimant was capable of doing any type of work when he retired in 1982. 5

*269 Finally, I note that the doctrine of lach-es applies where an employer fails to exercise due diligence in filing a petition and where the delay results in prejudice to the claimant. Roadway Express, Inc. v. Workmen’s Compensation Appeal Board (Allen), 152 Pa.Cmwlth. 318 , 618 A.2d 1224 (1992). Here, Employer filed a suspension petition in 2001 which placed a burden on Claimant to prove that his work injury forced him to retire from the entire labor market in 1982. To me, the fact that Employer waited nineteen years to file the petition demonstrates a failure to exercise due diligence. Moreover, the record shows that: (1) the attorney who represented Claimant in negotiating the 1985 settlement is deceased, (R.R. at 15a); and (2) Claimant could not remember who advised him that Claimant’s retirement was a condition of Claimant’s settlement with Employer, (R.R. at 26a). Thus, the nineteen-year delay has prejudiced Claimant’s ability to defend against Employer’s petition. As a result, the doctrine of laches would apply here.

Accordingly, unlike the majority, I would affirm.

. Act of July 28, 1953, P.L. 723, as amended, 16 P.S. § 4711. Section 1711(a) of the Code provides that an employee with twelve years of employment who becomes totally and permanently disabled physically may apply for a retirement allowance. 16 P.S. § 4711(a). To obtain a retirement allowance, the employee is required to submit the sworn statements of three practicing physicians of the county indi-eating that the employee is totally and permanently disabled physically. Id. Section 1711(b) of the Code provides that the retirement board may require the former employee to undergo a medical examination once a year to determine if he or she is no longer totally and permanently disabled physically or if the former employee is able to engage in a gainful occupation. 16 P.S. § 4711(b).

. A person is not entitled to a disability pension if that person is "able to engage in a gainful occupation.” 16 P.S. § 4711(b).

. Thus, Employer did not believe that Claimant was capable of working from 1982 until December 5, 2001. Employer only altered its view in 2001, after Dr. Tissenbaum examined Claimant and found him to be capable of sedentary work.

In reversing the WCJ’s and the Workers’ Compensation Appeal Board’s (WCAB) denials of Employer's suspension petition, the majority does not make clear whether the suspension is effective as of December 5, 2001, or as of the date of Claimant’s retirement in 1982. If Employer is entitled to a suspension as of the retirement date in 1982, then Employer will recover more than twenty years of benefits from the supersedeas fund.

. The majority states that Dr. Tissenbaum’s expert testimony established that Claimant was able to do sedentary work when he retired. (Majority op. at 7.) However, the majority fails to mention that Claimant retired in 1982 and that Dr. Tissenbaum did not examine Claimant until 2001.

.Employer does not argue before this court that, because Claimant’s condition improved to the point where Claimant became employable as of December 5, 2001, Employer is entitled to a suspension of benefits as of that date. Because WCJ and WCAB focused on Claimant's initial retirement in 1982, the issues Employer raises for appellate review pertain to that period of time.

If I were to consider whether Employer is entitled to a suspension of benefits as of December 5, 2001, I would conclude that a suspension would be inappropriate. It is true that, according to Dr. Tissenbaum, Claimant could perform sedentary work in 2001, but Dr. Tissenbaum restricted Claimant to sitting only two hours a day. (R.R. at 104a.) Based *269 on Dr. Tissenbaum’s testimony, Employer may be entitled to a modification of benefits, but, unless Employer can refer Claimant to a job that pays Claimant his pre-injury wages for two hours of work a day, Employer is not entitled to a suspension of benefits.