City of Pittsburgh v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Judge LEAVITT.

I admire the majority’s effort to address a difficult case in a fair and reasonable way. However, the proffered solution is unnecessarily complex and, accordingly, I respectfully dissent. I believe there should be one legal standard for determining continued eligibility for workers’ compensation where the claimant chooses to collect a pension, regardless of whether it is a retirement or a disability pension.

In 2004, Claimant chose to begin receiving a disability pension, thereby separating herself from employment with the City of Pittsburgh. She had other choices when her light duty job ended. Claimant could have applied for Heart and Lung benefits, which requires only that the injured employee not be able to do her pre-injury job. Choosing these benefits would not require a separation from employment. Likewise, Claimant could have opted to return to total workers’ compensation disability, which also does not require a separation from employment with the City. Instead, Claimant chose a disability pension, which is available to all employees regardless of whether the disability is work-related. This is a “voluntary retirement.”

It is axiomatic that an employer seeking to suspend workers’ compensation benefits must present evidence of available jobs that are within the claimant’s work restrictions, either through job referrals or a labor market survey. Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 252 , 532 A.2d 374, 380 (1987); Readinger v. Workers’ Compensation Appeal Board (Epler Masonry), 855 A.2d 952, 955-956 (Pa. Cmwlth.2004). Where, however, the claimant has voluntarily retired, the employer does not bear this burden. There is a presumption that the claimant on a retirement pension no longer intends to remain in the workplace. To rebut this presumption, the claimant must prove that her work injury has made it impossible to do any job or that she has been looking for work, thereby demonstrating an intention to remain attached to the workforce. County of Allegheny (Department of Public Works) v. Workers’ Compensation Appeal Board (Weis), 872 A.2d 263, 265 (Pa. Cmwlth.2005).

The majority correctly points out that in most retirement cases, the question of whether the claimant’s retirement was voluntary has not been litigated and, thus, no principles have heretofore been established. 1 The majority suggests that the Court fill that void with a hybrid burden of proof, combining principles from Kachin- ski-type job availability cases and Weis retirement cases. Under the majority’s proffered “totality of the circumstances” test to determine whether the pension was taken voluntarily, the employer must demonstrate both job availability and acceptance of the disability pension to prove that the claimant has voluntarily left the *1142 workforce. Quite simply, job availability is not relevant in pension cases.

Job availability is pertinent where a claimant is out of work because of a work injury; has not separated from employment; and is receiving workers’ compensation benefits. In such a case, the employer seeking to suspend or modify the claimant’s compensation must prove the claimant has earning power by proof of available employment. Otherwise, total disability benefits continue.

A pension involves a different type of situation because the claimant who elects the pension separates from employment. Disability pensions are not limited to disability caused by a work injury, and earning power does not change the claimant’s initial entitlement to receive the pension. Indeed, eligibility for a disability pension is easier to establish in that the employee must show only an inability to do her pre-injury job, as opposed to being unable to do any job.

Where an employer seeks to suspend benefits because the claimant is on a pension, the correct and clearer course is that she should be presumed to have voluntarily left the labor market. Southeastern Pennsylvania Transportation Authority v. Workmen’s Compensation Appeal Board (Henderson), 543 Pa. 74, 79 , 669 A.2d 911, 913 (1995) (“An employer should not be required to show that a claimant has no intention of continuing to work; such a burden of proof would be prohibitive.”). This presumption should apply to any pension case, retirement or disability, and it is not onerous to rebut the presumption. The claimant need only show that she has continued to look for work after choosing the pension. The claimant’s other option is to show by medical evidence that she has been forced out of the entire labor market. In sum, the burden of proof established by the courts for claimants on a retirement pension should apply with equal force to those on a disability pension.

Here, Claimant did not present any medical evidence that she was forced out of the entire labor market. Further, although Claimant looked for work after receiving the Notice of Ability to Return to Work in November 2007, the fact remains that she had retired in 2004 and did not look for work at all in the three years between her retirement and receiving the Notice. 2 This evidence does not prove a good-faith effort to remain attached to the labor market by seeking employment. Claimant failed to meet her burden of proof, and her benefits should be suspended.

Accordingly, I would reverse the Board’s decision.

President Judge LEADBETTER joins in this dissenting opinion.

. Although not overtly expressed, the majority seems to suggest that retirement pensions are permanent and disability pensions are not. In fact, people may come out of retirement and lose their right to continued pension benefits. Neither type of pension is permanent.

. The evidence in this case is confusing. It is not clear why Employer sent Claimant for an independent medical examination and sent her a Notice of Ability to Return to Work, rather than filing a suspension petition when Claimant took the pension. Job availability is, however, not relevant in a pension case.