Turner v. Workers' Compensation Appeal Board
2013 Pa. Commw. LEXIS 418
| Pa. Commw. Ct. | 2013Background
- Nancy Turner, a City of Pittsburgh police officer, was injured in 1994 and worked in a modified/light-duty position until the City discontinued the program in 2003; she then accepted a disability pension and did not seek other work until after 2007.
- Employer converted Heart and Lung benefits to workers’ compensation benefits as of August 28, 2003, based on a medical determination and Claimant’s acceptance of disability retirement.
- After an IME in June 2007, Employer issued a Notice of Ability to Return to Work (NARW) and filed a suspension petition (Aug. 2007) alleging Turner voluntarily withdrew from the workforce.
- Multiple hearings: WCJ credited testimony that Turner had residual pain but could perform some light-duty work; WCJ granted suspension, concluding Turner voluntarily removed herself from the labor market and had not searched for work.
- The Board affirmed relying in part on prior Commonwealth Court decisions treating pension receipt plus NARW as shifting burdens; the Commonwealth Court majority vacated and remanded, holding Robinson II controls and rejects a presumption that pension acceptance equals retirement.
Issues
| Issue | Turner’s Argument | City’s Argument | Held |
|---|---|---|---|
| Whether receipt of a disability pension and a NARW creates a presumption that claimant voluntarily retired and thus shifts the burden to claimant | Receipt of a pension and lack of duty to search pre-NARW mean her pre-2007 inactivity cannot be deemed voluntary | Pension + NARW permit presumption/inference of retirement and support suspension | Court held no presumption of retirement arises from pension; at most a permissive inference; employer retains burden to prove claimant voluntarily left workforce and must be judged under totality of circumstances |
| What burden applies to an employer seeking suspension based on alleged voluntary withdrawal | Turner: Employer must show job availability unless it proves claimant actually retired under totality standard | City: Pension/NARW together shift burden to claimant to rebut presumption | Held employer must prove voluntary withdrawal under totality test; if employer succeeds burden shifts to claimant to show compensable loss of earning power |
| Whether the WCJ/Board improperly applied pre-Robinson-II precedent to grant suspension | Turner: WCJ/Board erred in applying a presumption from Henderson/earlier cases | City: relied on earlier decisions (Leonard, Day, Robinson I) to infer retirement | Held WCJ/Board erred to apply a presumption; Robinson II clarifies only a permissive inference exists, so remand required for reconsideration |
| Relevance of claimant’s pre-NARW conduct (not job searching from 2003–2007) | Turner: No legal duty to seek work until NARW, so pre-Notice inaction cannot be determinative | City: pre-Notice conduct and admissions about intent are relevant to totality | Held pre-Notice conduct may be considered as part of the totality of circumstances; factfinder must weigh it (concurrence emphasizes weight, not exclusion) |
Key Cases Cited
- Harle v. Workmen’s Compensation Appeal Board (Telegraph Press), 540 Pa. 482, 658 A.2d 766 (Pa. 1995) (employer bears burden to show suitable employment exists to suspend benefits)
- Kachinski v. Workmen’s Compensation Appeal Board (Vepco Constr.), 516 Pa. 240, 532 A.2d 374 (Pa. 1987) (employer must present evidence of available positions within claimant’s restrictions)
- Southeastern Pennsylvania Transportation Authority v. Workers’ Compensation Appeal Board (Henderson), 543 Pa. 74, 669 A.2d 911 (Pa. 1995) (disability benefits may be suspended when claimant voluntarily leaves labor market upon retirement — facts matter)
- City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), 4 A.3d 1130 (Pa. Cmwlth. 2010) (Robinson I) (totality-of-circumstances test; employer cannot be relieved of obligations absent clear evidence claimant intended to terminate career)
- City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), 67 A.3d 1194 (Pa. 2013) (Robinson II) (Supreme Court: no presumption that pension acceptance equals retirement; pension may give permissive inference; employer bears burden to prove voluntary withdrawal under totality of circumstances)