Dpw v. Wcab (Roberts)
29 A.3d 403
| Pa. Commw. Ct. | 2011Background
- Claimant, a long-time houseparent, suffered cervical and lumbar injuries in 1997 and 1998 and stopped working in 1998.
- Claimant later retired with a pension and began receiving Social Security Disability benefits.
- Employer filed a Modification Petition (2004) based on a Kibler labor market survey and an Independent Medical Examination (IME) suggesting sedentary full-time work was possible.
- Employer also filed a Suspension Petition (2004) seeking to suspend benefits as of June 15, 1999, alleging voluntary withdrawal from the workforce.
- The WCJ (2006) credited the IME over the medical report, found Claimant capable of sedentary work, and held retirement did not equate to voluntary withdrawal; the Board remanded to address availability of positions with Employer; on remand, the WCJ faulted Kibler’s survey and questioned the availability of vacancies, but the Board affirmed the remand findings and the issues remained unresolved.
- On appeal, the Commonwealth Court reversed: retirement constituted voluntary withdrawal, suspended benefits should be granted with a remand to determine the suspension date, and modification issues were rendered moot; unreasonable-contest fees were also reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Claimant’s retirement equates to voluntary withdrawal from the workforce. | Roberts argues Claimant did not leave the workforce; retirement was economic. | Department argues Henderson controls; retirement can show withdrawal depending on circumstances. | Claimant retired, constituting voluntary withdrawal; suspension granted; remanded for suspension date. |
| Whether Employer needed vacancies to exist before using Kibler’s labor market survey. | Roberts contends survey shows work opportunities; no vacancies required for suspension. | Employer must show available work within geographic area or referrable positions. | Court did not reach substantive modification issue; on remand, evidence of vacancies deemed insufficient; suspension date remanded. |
| Whether the Board properly awarded unreasonable-contest fees to Claimant. | Roberts entitled to fees for contested petitions. | Employer’s contest was reasonable. | Reversed; Employer prevailed on the Suspension Petition, so fee award reversed. |
Key Cases Cited
- Armstrong World Industries v. Workers' Compensation Appeal Board (Evans), 703 A.2d 90 (Pa. Cmwlth. 1997) (role of evidence in suspension and remand decisions; scope of review)
- City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), 4 A.3d 1130 (Pa.Cmwlth. 2010) (retirements and withdrawal from workforce; burden-shifting upon retirement)
- Southeastern Pennsylvania Transportation Authority v. Workmen's Compensation Appeal Board (Henderson), 543 Pa. 74, 669 A.2d 911 (1995) (retirement/withdrawal standard; employer may show withdrawal by retirement)
- Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987) (requirements for labor market proof and availability of work)
- Day v. Workers' Compensation Appeal Board (City of Pittsburgh), 6 A.3d 633 (Pa.Cmwlth. 2010) (en banc; guidance on retirement and workforce re-entry)