Keene v. Workers' Compensation Appeal Board
2011 Pa. Commw. LEXIS 233
| Pa. Commw. Ct. | 2011Background
- Claimant Keene sustained a 1989 work injury to her right knee, later had knee replacement and can perform only sedentary work.
- She has a high school education with no training for cash register or computer work.
- After surgery, Keene actively looked for employment, applying broadly but not being hired (Budget, Avis, Wal‑Mart, Comcast).
- On October 9, 2007, Employer Ogden filed a suspension petition alleging voluntary withdrawal from the workforce.
- The workers' compensation judge found Keene was actively seeking work and denied the petition; the WCAB reversed, finding she voluntarily withdrew based on a two-year gap in job applications.
- This Court reverses, holding that the two-year failure to seek work does not establish voluntary retirement and that employer must prove retirement initial burden and follow legal standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a two-year failure to seek work prove voluntary retirement? | Keene argues failure to search for two years is not conclusive retirement. | Ogden argues long-term nonsearch demonstrates voluntary withdrawal from the workforce. | No; two-year gap alone does not prove retirement. |
| What is the initial burden for proving voluntary retirement? | Keene contests that employer must show retirement first. | Ogden contends it can prove retirement through undisputed retirement status or pension acceptance. | Employer must prove initial voluntary retirement before relying on nonsearch evidence. |
| Can receipt of social security disability benefits prove voluntary withdrawal? | Keene argues benefits imply retirement. | Ogden asserts benefits support withdrawal evidence. | No; Social Security benefits alone do not prove voluntary withdrawal from the workforce. |
Key Cases Cited
- Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240 (Pa. 1987) (establishes structured burden for suspension, including change in condition, referrals, and good faith effort)
- SEPTA v. Workmen's Compensation Appeal Board (Henderson), 543 Pa. 74 (Pa. 1995) (totality of circumstances allows retirement proof without showing available work)
- City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), 4 A.3d 1130 (Pa. Cmwlth. 2010) (retirement proof can negate employer's need to prove job referrals)
- Day v. Workers' Compensation Appeal Board (City of Pittsburgh), 6 A.3d 633 (Pa.Cmwlth.2010) (discussion on when duty to seek work arises and pension nuances)
- Robinson v. City of Pittsburgh, et al., 4 A.3d 1137 (Pa. Cmwlth.2010) (distinguishes social security benefits from retirement discharge)