City of Pittsburgh v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Judge PELLEGRINI.

I respectfully dissent because I disagree with the majority that there was insufficient evidence to support a finding that Dorothy Robinson (Claimant) met her burden of showing that she remained attached to the workforce once she retired.

Claimant suffered a work-related injury to her neck and right shoulder in 1997 by catching a heavy drawer while working for the City of Pittsburgh (Employer) as a police officer. Claimant went on light-duty in one of Employer’s transitional-duty programs. On October 15, 2001, she was in a car accident while on her way for treatment for her work injuries and sustained injuries, among others, again to her neck and right shoulder. Employer issued a notice of temporary compensation payable dated December 18, 2001, which was converted to a notice of compensation payable. Claimant never returned to work for Employer. In 2003, Employer discontinued its transitional-duty program under which Claimant had been working light-duty, and in 2004, Claimant requested and received a disability pension from Employer. 1

In October 2007, an IME was performed on Claimant on Employer’s behalf by orthopedic surgeon Victor Thomas, M.D. Dr. Thomas found that Claimant suffered from some cervical and lumbar degenerative disc disease but that Claimant was capable of light-duty, modified work. As a result, Employer sent Claimant a notice of ability to return to work on November 8, 2007, and then filed a suspension petition arguing that Claimant voluntarily withdrew from the workforce because she failed to look for suitable work within her restrictions after retiring from the work force.

At the hearing before the WCJ, Claimant testified that since the car accident in 2001, she never returned to work for Employer because she was never released by her physicians to go back to work and Employer never offered her any work that was light-duty. Claimant stated that she obtained her pension in 2004 and since that time she had not applied for a job. She acknowledged that after receiving the notice of ability to return to work from Employer, she went one time to a neighborhood employment center on Penn Avenue to look for work but never went back. She also looked through the newspaper for jobs, but she did not apply for any of the jobs.

The WCJ found that Claimant had not voluntarily removed herself from the *1140 workforce and remained attached to the labor market. The WCJ relied on the fact that Employer abolished the modified-duty program which she had been performing for Employer and that Claimant had been seeking employment. Further, Employer had not offered Claimant any light-duty work and did not provide Claimant with any vocational rehabilitation services. The Board affirmed.

The majority holds that although Claimant voluntarily retired, she remained tied to the job market, even though she made no effort because she was unaware of what work that she could perform. In effect, what the majority is holding is that a claimant’s duty to seek work begins to ran from the time the claimant is informed by the employer that her physical condition does not preclude her from seeking appropriate work. I disagree because a claimant has the obligation from the date of retirement to seek employment or obtain medical evidence that he or she was medically unable to be employed.

In Pennsylvania State University v. Workers’ Compensation Appeal Board (Hensal), 948 A.2d 907, 910-11 (Pa. Cmwlth.2008), we stated:

Where, as here, a claimant accepts a pension, our Supreme Court, in Southeastern Pennsylvania Transit [Transportation ] Authority v. Workmen’s Compensation Appeal Board (Henderson), 543 Pa. 74 , 669 A.2d 911 (1995), held that the claimant is presumed to have left the workforce entitling an employer to a suspension of benefits unless he establishes that (1) he is seeking employment or (2) the work-related injury forced him to retire. Because Claimant does not contend that his work injury forced him to retire, the only question is whether Claimant sustained his burden of showing that he was actively seeking employment.

To show that he was actively seeking employment, Claimant had to show that he engaged in a good-faith job search. Mason v. Workers’ Compensation Appeal Board (Joy Mining Machinery and AIG Claim Services), 944 A.2d 827 (Pa. Cmwlth.2008). The duty of “good-faith” has been defined as “[hjonesty in fact in the conduct or transaction concerned.” Somers v. Somers, 418 Pa.Super. 131 , 613 A.2d 1211, 1213 (1992). To show “good-faith” then, a claimant has to show that he has honestly undertaken efforts where an employer knows that he is seeking employment.

Under this standard, a claimant always has the burden to show that the workforce injury forced him or her not to seek employment — that burden is never placed on employer.

In this case, once Claimant left her light-duty job — which, in itself, should have informed her that she could work and what type of work she could perform— there was no “brief lapse of time” in which she had to look for a job. Claimant had, at a minimum, three years to look for a job from the time she retired. In fact, Claimant’s testimony before the WCJ reveals that she was not interested in looking for work since she received her pension:

Q. Even though a doctor may not have told you through the last six or seven years that you were released to go to work, you still haven’t gone to look for work on your own in some capacity where you think you could work; is that right?

A. That’s correct, I haven’t.

(Reproduced Record at 72a.) She also admitted that the only reason she went to the job center was because she received *1141 Employer’s petition. This is not the good faith search required.

Because Hensal placed the burden on Claimant to pursue a job hunt once she retired unless she established before the WCJ that her medical condition prevented her from seeking work, I would reverse the Board.

President Judge LEADBETTER joins in this dissenting opinion.

. A disability pension is awarded to Pittsburgh police officers if the work-related injury "disables him or her from performing the duties of his or her position or office." Section 4 of the Second Class City Code, Act of May 28, 1915, P.L. 596, as amended, 53 P.S. § 23564(a).