*1 work schedule changing Claimant’s before record and that, the on based concluded hours. increasing Claimant’s determinations, totality the credibility ¶ the Board 3.) Thus, finding there is no demonstrated here circumstances hours full-time request to voluntari- intention that Claimant’s conscious Claimant’s Jonico, Inc. Friday before with on the actually denied quit her ly January work on application left when she date of Claimant’s (Employer) the effective Em- to reasons, return 2009, I would 9, despite Claimant’s these For for benefits. scheduled her next pharmacy ployer’s affirm Board. (1) included: circumstances Those shift. abrupt- “stuff’ gathering
Claimant prem- pharmacy Employer’s
ly leaving that she being told after shortly
ises (2) work; to full-time to return be able
not pharmacist Employer’s calling
Claimant asking (8)
“two-faced”; pharmacist Employ- call and to to leave Claimant and UPMC PITTSBURGH OF CITY her work about manager general er’s Services, Management Benefit (4) the ignored; schedule, Claimant Petitioners, Inc., admit- and Claimant testifying pharmacist Employ- across yelled that Claimant ting day; last on Claimant’s pharmacy er’s AP- if pharmacist COMPENSATION failing to advise WORKERS’ (ROBINSON), work; and to returning PEAL BOARD
she would Janu- Respondent. effective filing for benefits 2009, Monday before Claim- ary Pennsylvania. Court Commonwealth (Board shift. next scheduled ant’s ¶¶ 5-8, 11; (FOF) of Fact Findings Op. 21, 2010. Argued April 20.) Tr. at Hr’g Referee 22, 2010. Sept. Decided Furthermore, the Board I note that fact that “Claimant finding of no made next scheduled at her for work
reported 4 A.3d at Procyson,
shift.” and the fact finding, of this
lack re- credible find Claimant did not work, leads to return her intent
garding did not the Board the inference returning actually that Claimant
think January 13th. to work pharmacy filing for bene- to Claimant’s regard
With majori- January effective
fits was entitled that “Claimant
ty states effec- hours her reduced Id. at 2009.” January
tive the week However, found that the Board n. 5. expressed manager general
Employer’s speak need to manager’s general pharmacist and the president
Employer’s *2 involved an automobile accident and injuries neck,
sustained to her *3 of her lower back right side and shoulder. Employer accepted injuries these through Temporary a Notice of Compensation Pay- 18, 2001, able dated December which later converted to a Notice of Compensation Andreen, Bradley R. Pittsburgh, pe- for Payable. Claimant did not return to her titioners. light-duty job immediately after the car Chaban, R. Pittsburgh, Lawrence for re- 2003, accident. Employer discontinued spondent. transitional-duty program, under which Employer previously provided had Claim- LEADBETTER, BEFORE: President ant modified-duty position. with her McGINLEY, Judge, and Judge, 2004, received, late sought, Claimant PELLEGRINI, Judge, COHN Employer. Victor JUBELIRER, LEAVITT, Judge, Judge, Thomas, M.D., performed independent BROBSON, Judge, McCULLOUGH, medical examination of Claimant on Em- Judge. ployer’s 30, behalf October 2007. Dr. OPINION BY Thomas Judge opined COHN that Claimant capable light-duty, sedentary JUBELIRER. work. Based on that opinion, Employer sent Claimant a City of Pittsburgh and UPMC Benefit Ability Notice of to Return to work on Services, Management (together, Inc. Em- 8, November 2007. Less than two weeks ployer) petition for review of the order of later, 21, 2007, on November Compensation Appeal Workers’ Petition, Suspension filed the arguing that (Board), which affirmed the decision and Claimant withdrew from the order of the Workers’ Compensation workforce because she failed to look for (WCJ). Judge order, In his decision and suitable work within her restrictions after Employer’s WCJ denied Petition to retiring. After Employer filed its Suspen- Suspend Compensation (Suspen- Benefits Petition, sion Claimant went to a local Petition) grounds sion on the that Employ- employment center jobs and looked for she er failed to show that work was available perform, believed she could but did not within the work Dorothy restrictions of apply any. for Claimant also searched the (Claimant) and, Robinson alternatively, newspaper jobs. any Claimant met burden might she of showing have that she remained at- Suspension assigned Petition was tached to the workforce after her retire- WCJ, who held three hearings on the ment. January 29, 2008, matter on May began working Claimant for Employer presented October 2008. Claimant 17,1989. police as a April officer on testimony, While her own deposi as well as the working testimony tion of Deborah Curry, a senior sustained a work-related to her Employer’s claims examiner for insurer. Thereafter, neck shoulder. Employer presented Dr. deposi Thomas’s Claimant worked for light- tion testimony. The WCJ determined duty position. that, traveling While to an ap- pursuant to Corp. Bethlehem Steel pointment for treatment for her work-re- (Laubach),
lated injury
on October
the claimant on
total
and,
if the
later seeks to
Board, Employer
Before the
ar
benefits,
modify
suspend
gued that
in failing
WCJ erred
availability
must show the
apply
findings
Weis and that
the WCJ’s
Em
suitable work. The WCJ held that
were not supported by substantial evi
ployer failed to meet
this burden. The
*4
dence. The
upheld
Board
deci
WCJ’s
Employer
WCJ determined that
forced
sion, noting that the WCJ’s decision did
by eliminating
into retirement
not conflict with
because the
Weis
WCJ
(WCJ
modified-duty
position.
Deci
found
Claimant had
looked
¶
(FOF) 22.)
sion, Findings of Fact
Citing
and, therefore, remained attached to the
Supreme
Court’s decision Southeast
labor market. The Board also noted that
Pennsylvania Transportation
ern
Author
correctly
WCJ
found that
v.
ity
Compensation Appeal
Workmen’s
available,
failed to offer evidence of
suit
(Henderson),
Board
669 A.2d
Claimant, which,
able work for
in the
(1995),
the WCJ noted that a claimant
view, might
justified
Board’s
have
a denial
continue
compen-
to receive workers’
pursuant
to this
holding
Court’s
despite being
sation benefits
retired where
in Pennsylvania
University
State
v. Work
into
was forced
retirement
(Hen
ers’ Compensation Appeal Board
injury.
the work-related
The
ac-
WCJ
sal),
(Pa.Cmwlth.2008).
Generally, order he retirement or that benefits, ment after employer of his work- into retirement because forced following requirements: meet the Henderson, our Su- injury”). modify a who seeks to 1. The preme Court stated: he on the basis that claimant’s benefits ability or all of his some has recovered benefits must It is clear medical evidence of a produce must first when a claimant voluntari- suspended in condition. change upon the labor market retire- ly leaves ev- that a re- produce possibility must then ment. The mere 2. The referrals) (or time, future may, to .a tired at some of a referral worker idence (or fits in the not transform a jobs), seek does open then for which the from the labor occupational category voluntary continuing compensable into a given has been medical clear- market work, ance, sedentary disability. An should not be e.g., light *5 that a claimant has no required etc. to show work; continuing intention of such a 3. The claimant must then demonstrate prohibitive. proof burden of would good faith followed that he has referral(s). job the through on fact, voluntarily Id. In where a claimant 4. If the referral fails to result retires, it who bears the is the claimant continue. then claimant’s benefits should showing of either that her work- burden forced her out of the injury has Compensation v. Kachinski Workmen’s looking that she is Co.), entire workforce or (Vepco Construction Id.; Weis, (1987). work after retirement. 374, 380 Here, 306(b)(2) A.2d at the WCJ found that to Section of the Work- Pursuant “voluntarily remove her- Claimant did not Act,2 employer may an Compensation ers’ and that she con- self from workforce” suspension to a establish its entitlement ¶¶ 16-17.) work. tinued to look for modification by referring either a claimant Likewise, the Board determined that required by to an available as eligible Claimant was for benefits because “establishing a claimant’s] Kachinski or to show that work was Employer failed through expert opinion ev- ‘earning power’ her limitations available to Claimant within including job listings employ- idence and because continued to look for agencies, agencies Department ment of the 4-5.) (Board Decision Industry, and advertisements Labor employment.” in a claimant’s usual area of Employer’s argument We first address System South Hills Health determining that the Board erred (Kiefer), Compensation Appeal Board 806 Employer present needed to evidence of (Pa.Cmwlth.2002). within availability of suitable work However, prevail in order to an need not Claimant’s abilities Claimant, for her prove availability Suspension of suitable work has part, argues her that where when a claimant removes available, but refuses to modified work through from the labor market retire self claimant, Henderson, work to a bur- provide ment. 543 Pa. at such See (“For to show den on the disability compensation properly A.2d at 913 retirement, work. Funda- availability a claim- of suitable following to continue amended, 512(2). § 77P.S. 2. Act June P.L.
H35
mentally, what is at issue is the question
claimant,
accepted
who had
a disability
when the burden should shift
from an em-
employer,
as well as a
ployer to show the availability of
social security
suitable
disability pension, retired
standard,
under the Kachinski
and was not
to a
terminated.
Id. at 1127. The
claimant to show that she
WCJ based
is still
this decision on
attached
the testimony
of the employer’s
to the
inventory
workforce or was forced out of
warehouse
manager,
entire
who
workforce
testified that claimant vol-
inju-
work-related
untarily retired
ry, under
and was not
the Henderson
terminated.
standard.
addition,
Id. In
words,
other
claimant did
when is a
not look
claimant “retired”
for work despite having been
such that
released to
Henderson and its progeny ap-
years
work two
previously.
Id. The WCJ
ply?
determined, however,
that because the
Employer,
case,
in this
appears to as-
claimant retired from his position due to
sume that Claimant retired because she
his
injury,
he was eligible for bene-
for,
applied
accepted,
a disability pen-
fits.
Id. at 1128. This Court affirmed the
sion. Such an assumption
surpris-
is not
Board’s reversal of the WCJ’s determina-
ing because the issue of whether a claim-
tion, on
Weis,
the basis of
because the
ant had retired has rarely been in dispute.
claimant failed to show that his work-relat-
Henderson,
for example, the claimant
ed
forced him to retire from the
testified that “he was receiving Social Se-
entire
Thus,
workforce.
Id. at 1130.
this
curity retirement benefits and that he was
*6
Court did not review the WCJ’s determi-
applying for a pension from SEPTA on his
nation that
the claimant voluntarily re-
65th birthday ...
[and] that he was not
tired.
looking
Henderson,
work.”
543 Pa. at
Hensal,
the claimant
suffered work-
added).
H37 force. It is under the totality of these termined through a petition claim or notice circumstances stated, this Court of compensation payable. then, “[u]nder Henderson to overcome the The Supreme Court has de presumption that he has left the work- scribed the dual obligations that employers force, a claimant accepts who have under the Act as paying benefits and must establish that he is seeking em- also assisting injured workers to return to ployment or the work-related injury the workforce. Constructors, Landmark forced him to retire.” Id. at 831. In this Inc. v. Workers’ Compensation Appeal context, this statement be read as (Costello), 560 Pa. referring merely to the claimant’s ac- (2000). injured workers ceptance of a pension, but the claimant’s have a reciprocal obligation to cooperate evident preference for over with that effort. As described the Su available work. preme Court: Black’s Law Dictionary defines “retire- because of the Act’s humanitarian objec- “[germination ment” as of one’s own em- tives, an employer must do more than ployment career, esp. upon reaching a simply pay employees benefits for work- certain age or for reasons; health retire- injuries. In order to make the ment may be voluntary or involuntary.” employee whole, the employer must try Black’s (9th Law Dictionary ed.2009). to reintroduce into the workforce those In determining whether acceptance of a employees injured while pursuing the pension should create a presumption that a employer’s interests. claimant has career, terminated her it is Our decision in Kachinski also recog- important to look at the facts involved and nized that the employer’s obligation is the type pension. For example, there not without limits. The Act places upon are both pensions and disability the employee a reciprocal obligation to
pensions. There are also different types
make his or her best efforts to return to
of disability pensions. Some, like the dis-
Thus,
workforce.
employees must
ability pension
issue,
require only a
cooperate with employers’ attempts to
showing that the recipient
perform
cannot
return them to the workforce by making
her time-of-injury job.3 That a claimant is
themselves available for appropriate em-
unable to perform the time-of-injury job
ployment, whether with the employer or
*8
due to a
work-related
part
is
of a
with a substitute employer.
proof
burden of
in order to re-
ceive
also,
workers’
Id.
See
v. Workers’ Compen
Bufford
the
Thus,
first place.
accepting
(North
sation
type
this
American
of disability pension by itself,
Telecom),
not,
- Pa.-,
would
Henderson,
an
pro
case,
did
In this
or
work
available
find
that,
a claimant
help
un
to show
evidence
vide sufficient
if the
work
that
availability of
circumstances,
the
prove
the
totality of
the
der
from
indicated,
retiring
by
has
claimant
her career.
to terminate
intended
Claimant
How-
workforce,
not to
a desire
received,
the
for,
a dis
and
applied
Claimant
of its
an
reheve
ever, we cannot
conditioned
which
ability pension,
the
reenter
claimant
help a
to
obligation
time-of-injury
her
perform
to
inability
her
re-
workforce,
identifying
May
13(5)
Act of
of the
Section
position.
finding available
abilities
work
amended,
sidual
P.S.
as
P.L.
abilities,
it is
unless
those
within
positions
a dis
23656(5).
not seek
did
§
Claimant
circumstances
the
totality of
the
from
clear
from
her
precluded
ability pension
unavailing.
would be
such efforts
true
It is
old-age pension.
working or an
the im-
long stressed
has
Supreme Court
modi
to her
not return
did
that Claimant
bur-
employer’s
of an
gravity
accident;
portance
her car
after
fied-duty position
that:
stating
show suitable
to
den
no
however,
this is because
handle
can
[wjhere
person
to her.
injured
the
available
position
the
made
longer
light of
job, one
¶22.)
credibly testified
only specially-created
(FOF
laden
but
responsibility
she received
effort
after
for work
looked
that she
plums
Work,
(employment
comfort
to
Return
Ability
rest
to
Notice
tree of
dangle from
Suspen
not often
shortly
that do
followed
economics)
¶¶
is on
17-18.)
the burden
everyday
sion
show
to
defendant-employer
as
being unclear
despite
looked
reach.
within
in fact
resulting
such
or restrictions
abilities
her
¶
(FOF 18), and
injuries,
Co.,
her work-related
Alden Coal
v. Glen
Unora
of
never
fact
(1954).
despite
In order
104, 107
available
or identified
her a
fered
a claimant
return
that efforts
show
restric
or
her abilities
within
positions
unavailing because
would
workforce
ev
no
provide
These circumstances
tions.
retired,
has
a claimant
to terminate
intended
circumstances,
that Claimant
idence
totality of
show, by the
Indeed, to
her career.
return
not to
chosen
has
that the
found
specifically
contrary, WCJ
Circumstances
workforce.
to the
*9
working if
would be
that Claimant
fact
has
a claimant
holding that
support
could
Claimant’s
eliminated
had not
Employer
(1)
is no dis-
there
where
retired include:
¶ 16.)
modified-duty
position.
retired;
that
pute
carry its
Therefore,
failed
Employer
pen-
retirement
of a
acceptance
that
to show
Henderson
under
a burden
of
acceptance
sion;
or
Employer
Because
retired.4
had
employ- Claimant
of suitable
refusal
pension
employment
sought
termining
Claimant
that
Employer failed
holding that
to our
4. Due
following
retired,
her
good faith
not reach
in
we do
Claimant
that
show
in de-
erred
whether the
of
the issues
18, 2001,
retired,
December
which was con-
dated
that Claimant was
failed to show
compensation payable.
verted to a notice of
Section
Kachinski
pursuant
never returned to work for Em-
Claimant
Act,
306(b)(2)
agree with the
we
of
2003, Employer discontinued
ployer.
to show the
needed
Board that
transitional-duty program under which
work within Claim-
availability of suitable
working light-duty,
had been
Claimant
to sustain its
and abilities
ant’s restrictions
requested
Claimant
and received a
South
Suspension
burden on
Employer.1
Hills,
at 966.
performed
In October
an IME was
reasons,
the order
we affirm
For these
Employer’s
by
on
behalf
or-
Claimant
of the Board.
Thomas,
surgeon
Dr.
thopedic
Victor
M.D.
suffered from
Thomas found
Claimant
in the result
concurs
Judge McGINLEY
degenerative
some cervical and lumbar
only.
capable
disc disease but that Claimant was
result,
light-duty,
modified work. As a
ORDER
ability
sent Claimant a notice of
22, 2010,
NOW,
the order of
September
8, 2007,
to return to work on November
Compensation Appeal Board
the Workers’
suspension petition argu-
and then filed a
hereby
above-captioned
matter is
ing
withdrew
Claimant
AFFIRMED.
from the workforce because she failed to
look for suitable work within her restric-
Judge
BY
OPINION
DISSENTING
retiring
tions after
from the work force.
PELLEGRINI.
WCJ,
hearing
At the
before the
Claim-
disagree
because I
respectfully
I
dissent
ant testified that since the car accident in
majority that
there was insuffi-
with the
never
Em-
she
returned to work for
finding
support
cient evidence to
by
because she was never released
ployer
(Claimant)
her
Dorothy Robinson
met
bur-
physicians
go
her
back to work and
showing
den of
that she remained attached Employer
any
never offered her
work that
retired.
to the workforce once she
stated that she
light-duty.
Claimant
obtained her
2004 and since
suffered a work-related
applied
job.
time
had not
for a
she
right
shoulder in 1997
to her neck and
acknowledged
receiving
that after
She
catching heavy
working
drawer while
for
ability
notice of
to return to work from
Pittsburgh (Employer) as a
City
neigh-
she went one time to a
Employer,
police
light-duty
officer. Claimant went on
borhood
center on Penn Ave-
transitional-duty pro-
Employer’s
in one of
nue to look for work but never went back.
was in a
grams. On October
she
through
newspaper
She also looked
way
on her
for treat-
car accident while
any
of the
jobs,
apply
but she did
injuries
ment for her work
and sustained
jobs.
others, again to her neck
injuries, among
had not
shoulder.
issued
The WCJ found
voluntarily removed herself
from the
temporary compensation payable
notice
her
or office." Sec-
entire workforce
duties of his or
forced out of the
*10
Code,
injury.
City
work-related
Act of
tion 4 of the Second Class
amended,
May
53 P.S.
P.L.
as
awarded to Pitts-
1. A
is
23564(a).
§
injury
burgh police
if the work-related
officers
performing the
him or her from
"disables
showing
and remained attached to the
tained his burden of
that he
workforce
actively seeking employment.
on the
labor market. The WCJ relied
fact
modified-duty
abolished the
actively
To show that he
seeking
performing
had been
program which she
employment, Claimant had to show that
and that Claimant had been
engaged
he
in
good-faith job
search.
Further,
seeking employment.
Compensation Ap
Mason v. Workers’
any light-duty
had not offered Claimant
peal
(Joy Mining Machinery
Board
provide
work and
not
did
Services),
(Pa.
AIG Claim
H41 good This is not the It is axiomatic that an Employer’s petition. seeking required. suspend faith search to workers’ present jobs evidence of available placed Because Hensal the burden on that are within the claimant’s work restric- pursue to a hunt once she tions, through job either referrals or a retired unless she established before the survey. labor market v. Kachinski Work- prevented WCJ that her medical condition Compensation Appeal (Vepco men’s seeking I would reverse her from Co.), Construction the Board. (1987); Readinger v. Work- (Epler ers’ joins LEADBETTER Judge President (Pa. Masonry), 855 A.2d 955-956 dissenting opinion. in this Cmwlth.2004). Where, however, retired, voluntarily has the em- Judge BY DISSENTING OPINION ployer does not bear this burden. There LEAVITT. presumption is a the claimant on a majority’s I admire effort address pension longer no intends to a in a fair and reasonable difficult case remain in the workplace. To rebut this However, way. proffered solution is presumption, prove the claimant must and, unnecessarily complex accordingly, I impossible her work has made it I there respectfully dissent. believe any job do or that she been looking has legal should be one standard determin- work, thereby demonstrating an intention ing eligibility continued for workers’ com- to remain attached to the workforce. pensation where the claimant chooses to County Allegheny (Department Pub- of regardless collect a of whether it pension, Works) lic Compensation Ap- disability pension. a retirement or a is (Pa. (Weis), peal Board begin chose to receiv- Cmwlth.2005). ing disability pension, thereby separating The majority correctly points out that in employment City
herself from with the cases, most retirement the question of Pittsburgh. She had other choices when whether the claimant’s retirement was vol- light duty job ended. Claimant could and, thus, untary litigated has not been no benefits, have for Heart applied Lung principles have been heretofore estab- which requires only injured em- majority suggests lished.1 The not be able to do her ployee pre-injury job. fill hybrid Court that void with a burden of Choosing require these benefits would not proof, combining from Likewise, principles Kachin- separation employment. from ski-type job availability cases Weis opted Claimant could have to return to majority’s retirement cases. Under the compensation disability, total workers’ proffered “totality of the circumstances” require separation which also does not Instead, pension test to determine whether the City. with the disability voluntarily, taken must dem- pension, Claimant chose employees regardless job availability accep- is available to all of onstrate both prove whether work-related. tance of the is “voluntary This is a retirement.” that the claimant has left the fact, Although overtly expressed, majority people come out of retirement suggest pensions that retirement are and lose their to continued ben- seems permanent. permanent disability pensions type are not. efits. Neither *12 Quite simply, job availability is continued to look for work after choosing workforce. pension pension. option cases. The claimant’s other not relevant is to show medical evidence that she availability pertinent where a Job has been forced out of the entire labor because of a work claimant is out work sum, proof market. the burden of es- injury; separated employ- has not from tablished the courts for claimants on a ment; receiving compen- workers’ and is pension apply retirement should case, a sation benefits. such em- equal disability pension. force to those on a ployer seeking suspend modify to or prove Here, present any Claimant did not earning power by proof claimant has of medical evidence that she was forced out Otherwise, employment. available total Further, of the entire labor market. al- continue. though Claimant looked for work after re- ceiving Ability the Notice of to Return to A type involves different inWork November the fact remains situation because the claimant who elects that she had retired in 2004 and did not pension separates employment. years look for work at all in the three Disability pensions are not limited to dis- between her receiving retirement and ability by a work injury, caused and earn- prove Notice.2 This evidence does not ing power change does not good-faith effort to remain attached pension. initial entitlement to receive the by seeking employment. labor market Indeed, eligibility for a disability pension is Claimant failed to meet her burden of easier to in that employee establish proof, and her benefits be suspend- should only must show an inability pre- to do her ed. injury job, opposed being unable to job. any do I Accordingly, would reverse Board’s decision. Where an suspend seeks to pen- benefits because the claimant is on a
sion, the correct and clearer course is that Judge joins President LEADBETTER presumed she should be to have voluntari- in this dissenting opinion.
ly left the labor market. Southeastern
Pennsylvania Transportation Authority v.
Workmen’s
(Henderson), (1995) (“An employer should not be
required to show that a claimant has no work;
intention continuing such a proof
burden of would be prohibitive.”).
This presumption apply any pen- should case,
sion disability, and it is
not onerous to rebut the presumption. only
The claimant need show she has confusing. filing 2. The evidence in suspension petition this case is It is rather than when why Employer not clear sent Claimant for an pension. availability Claimant took the Job independent is, however, medical examination and sent not relevant in case. Work, Ability her a Notice of to Return to