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Jeffrey D. Snyder, Esquire and Kevin L. Connors, Esquire
On the Achilles heel of the Pennsylvania Supreme Court’s recent Opinion in theCity of Pittsburgh UPMC v. WCAB, a Decision that discussed the burden of proof in voluntary withdrawals from the workforce cases, the Commonwealth Court has now rendered an Opinion on that same issue inFitchett v. WCAB, decided on April 8, 2013.
Fitchett involved a 2001 injury.
The Claimant was working as a Teacher’s Instruction Aide, and was injured in a student attack.
Multiple Petitions were litigated, including a Termination Petition, a Review Benefit Offset Petition, and a Penalty Petition.
Obviously, the employer, the PhiladelphiaSchool District, was litigating the Termination and Review Petitions, and the Claimant was retaliating with a Penalty Petition.
Oddly enough, there were no pleadings, nor amendments to pleadings, under which the employer had alleged that it was seeking a suspension of indemnity compensation benefits, based on the Claimant’s voluntary withdrawal from the workforce.
That issue was, however, nevertheless the subject of testimony in the course of the claim being litigated before the WCJ.
The Claimant began receiving Pension benefits in April of 2002, and then began receiving Social Security Retirement benefits in October of 2004. After the work injury, the Claimant never sought any other work as the Claimant agreed that she was collecting “retirement” with her testifying that “but for” her work injuries, she would have continued working.
Questioned as to whether she had retired, she responded “at this point”, … “yes”, although she clarified her testimony, by indicating that she had left the workforce because of her work injuries.
She testified that she would still be working, if she was able to do so.
The WCJ found that the Claimant had retired, and voluntarily withdrawn herself from the workforce. On credibility issues, the WCJ commented that the Claimant’s testimony “sounds good”, but “on close inspection falls apart”.
Moreover, the WCJ found that the surgery that the Claimant had undergone was unrelated to the work injury, that the Claimant had not searched for employment of any sort, while the Claimant was contending that she took a Pension benefit, as well as, Social Security Retirement benefits due to financial hardship, but that at the time she applied for the Pension benefits, she was receiving workers’ compensation benefits.
The Workers’ Compensation Appeal Board affirmed the WCJ’s Decision.
Before the Commonwealth Court, the Claimant argued that the WCJ had erred in deciding the issue of voluntary retirement, claiming that the employer never requested a suspension of benefits on the basis of retirement, and that there had never been any amendments to the pending Petition seeking that form of relief.
Brushing aside the Claimant’s arguments, the Commonwealth Court held that the issues before the WCJ and WCAB included issues related to the employer’s entitlement to an offset for Pension and Social Security Retirement benefits, such that the presence of those offset issues should have put the Claimant on general notice that her wage loss benefits could be suspended, based on a voluntary withdrawal from the workforce, under the “totality of the circumstances”, a legal nexus that the Pennsylvania Supreme Court had utilized in the City of Pittsburgh UPMC Decision, a recently issued decision.
No less true, the Commonwealth Court held that the issue of the Claimant’s voluntary retirement had been fully litigated before the WCJ, and that issue had been preserved for the WCAB.
Holding that the employer need not prove the availability of suitable work, when the employer establishes, under a totality of the circumstances, that a Claimant has voluntarily retired from the workforce, theFitchett Court also considered that a voluntary retirement from the workforce can be presumed from the acceptance of a Retirement Pension, a holding seemingly in some conflict with the Pennsylvania Supreme Court’s Decision inCity of Pittsburgh UPMC.
If we are to remove the notice issue from the Fitchett Decision, as the Claimant had argued that she did not have “notice” of the potential suspension of her workers’ compensation benefits based on a voluntary withdrawal from the workforce analysis, the Commonwealth Court appears to be following the Opinion rendered by the Supreme Court in theCity of Pittsburgh UPMC, with two key caveats.
The first, is that the Fitchett Court appears to be of the view, in stark contrast to theCity of Pittsburgh UPMC holding, that the receipt of a Retirement Pension benefit results in a rebuttable presumption of a voluntary withdrawal from the workforce.
Secondarily, the Fitchett Court is indicating that the issue of a voluntary withdrawal from the workforce is a matter of credibility for the WCJ to decide, making it a question of fact, rather than a pure question of law, or even a mixed question of fact and law.
What remains as the clear directive is that when an employer seeks to establish a voluntary withdrawal from the workforce, it remains the employer’s burden of proof to establish that a Claimant has done so under a “totality of the circumstances”, as is the holding of the Supreme Court in the City of Pittsburgh UPMC.
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