J. Podest v. WCAB (General Dynamics)
1785 and 1816 C.D. 2016
| Pa. Commw. Ct. | Sep 1, 2017Background
- Claimant John Podest injured both shoulders at work on October 30, 2009; Employer (General Dynamics) initially recognized a work injury and paid benefits.
- Medical evaluations (Penn Therapy FCE; Dr. Bednarz IMEs) indicated Claimant could perform light-to-medium duty work; Claimant’s treating physician Dr. Moran imposed stricter light-duty restrictions.
- Employer issued a Notice of Ability to Return (Dec. 6, 2011) and offered two light-duty positions (paint-mask cleaner and 120HE welder feed) in January 2012; Claimant declined after consulting Dr. Moran.
- Claimant applied for Social Security Disability (filed July 27, 2010; ALJ awarded SSD effective May 1, 2010 citing shoulders and depression) and later applied for and began receiving a union disability pension effective May 1, 2011.
- Employer filed modification/suspension petitions arguing Claimant refused suitable work and/or voluntarily withdrew from the labor market; WCJ initially granted modification (2013) but Board reversed and remanded on the job-offer issue and directed consideration of voluntary-retirement suspension.
- On remand the WCJ found, under the totality-of-the-circumstances test, that Claimant voluntarily left the labor market and granted Employer’s suspension petition as of January 10, 2012; the Board affirmed and the Commonwealth Court affirmed the Board.
Issues
| Issue | Podest's Argument | General Dynamics' Argument | Held |
|---|---|---|---|
| Whether Employer proved Claimant voluntarily withdrew from the labor market | Podest: burden is on Employer, and CBA required him to apply for union disability pension once found totally disabled, so pension receipt was not voluntary withdrawal | Employer: Claimant’s application for and receipt of union disability pension, SSD award, lack of job applications, and refusal of offered jobs show voluntary withdrawal | Held: Employer met prima facie case under totality test; WCJ reasonably found voluntary withdrawal and suspended benefits |
| Whether receipt of union disability pension alone creates presumption of retirement | Podest: pension was mandatory under CBA, so receipt should not infer voluntary retirement | Employer: pension creates a permissive inference of retirement to be considered with other evidence | Held: Pension creates permissive inference; here it was probative alongside other factors supporting voluntary retirement |
| Whether WCJ misapplied burden of proof regarding claimant’s job-search efforts | Podest: WCJ shifted burden to Claimant to prove he sought work | Employer: employer may present evidence of non-efforts; burden shifts to claimant to rebut once employer meets prima facie case | Held: WCJ properly applied Robinson burden-shifting; noting it would be prohibitive to require employer to prove negative intent |
| Whether SSD award compelled finding of work-related total disability | Podest: SSD finding of disability required him to seek pension and indicates compelled retirement | Employer: SSD award relied partly on depression unrelated to work injury; record lacks medical opinion showing permanent total disability from shoulders alone | Held: SSD award does not establish work-related total disability here; record did not show shoulder condition alone produced permanent total disability |
Key Cases Cited
- City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), 67 A.3d 1194 (Pa. 2013) (adopts totality-of-the-circumstances test and burden-shifting for voluntary withdrawal from labor market)
- Southeastern Pennsylvania Transportation Authority v. Workmen’s Compensation Appeal Board (Henderson), 669 A.2d 911 (Pa. 1995) (distinguishes forced retirement from voluntary withdrawal for benefits eligibility)
- Chesik v. Workers’ Compensation Appeal Board (Department of Military and Veterans’ Affairs), 126 A.3d 1069 (Pa. Cmwlth. 2015) (union pension creates permissive inference of retirement to be weighed under totality test)
- Turner v. Workers’ Compensation Appeal Board (City of Pittsburgh), 78 A.3d 1224 (Pa. Cmwlth. 2013) (employer may use claimant’s job-search efforts or non-efforts as evidence of voluntary withdrawal)
- Burks v. Workers’ Compensation Appeal Board (City of Pittsburgh), 36 A.3d 639 (Pa. Cmwlth. 2012) (receipt of SSD for non–work-related conditions supports finding of voluntary withdrawal)
- City of Philadelphia v. Workers’ Compensation Appeal Board (Rooney), 730 A.2d 1051 (Pa. Cmwlth. 1999) (contrast between compulsory retirement and voluntary withdrawal in benefit entitlement)