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TO RETIRE OR NOT TO RETIRE
Jeffrey D. Snyder and Kevin L. Connors
Yes, genuflecting in the general direction of T. S. Eliot:
“April is the cruelest month,
Lilacs of the dead land, mixing
Memory and desire, stirring
Dull roots with spring rain.
And, indeed, there will be time for us to determine the burden of proof in cases where an employer claims that an employee, post-retirement, has voluntarily withdrawn from the workforce, entitling the employee to the magis hubris of a suspension of indemnity compensation benefits.
What are we talking about, and why do we care?
Burdening all with the instructive yet pedantic ruling recently issued by the Pennsylvania Supreme Court inCity of Pittsburgh UPMC Benefit Management Services, Inc. v. WCAB (ROBINSON), we are nevertheless constrained to consider its analysis of the burden of proof in cases when an employer claims that an employee, allegedly post-retirement, has voluntarily withdrawn from the workforce, presumptively entitling the employer to the conceit of a suspension of indemnity compensation benefits.
What presumption are we talking about, and why should we read with relish on?
Poetic liberties aside, the Supreme Court has concluded in the City of Pittsburgh, decided on March 25, 2013, that the employer carries the burden of proof, under a “totality of circumstances” test, to establish an employer’s basis to suspend a Claimant’s workers’ compensation benefits, with the Court finding that the employer must prove, in a withdrawal from the labor force case, that the Claimant’s election and receipt of an employment-based pension establishes that the Claimant has voluntarily withdrawn from the workforce, effectively constituting a post-working motif, not to be confused with a paradigm, of making no effort to seek re-employment.
Will this result in higher cable TV charges, we wonder?
In the City of Pittsburgh, the Claimant was a Pittsburgh Police Officer, who had sustained a work-related injury in 1997.
Subsequent to that workers’ compensation claim, she sustained new injuries in 2001, when she was involved in an automobile accident, as she was driving to treatment for the original work injury.
Following her car accident, the Claimant was not able to continue working in a light-duty capacity, and she was not offered any subsequent employment by the employer.
Three years after the car accident, the Claimant applied for and received a disability pension from Pittsburgh. Pensions are awarded to police officers, who, due to a work injury, are unable to perform the duties of their position.
The Supreme Court held that the Claimant’s entitlement to receive the pension simply meant that she was unable to perform her pre-injury employment as a police officer, but that did not mean that she was precluded from performing any employment whatsoever.
Another three years fly by, as often happens in our squirrely compensation universe, and the Claimant was referred for an independent medical examination, with the IME doctor, bless his board-certified credibility, finding that the Claimant was unable to perform the pre-injury job as a police officer, but that she certainly could perform modified-duty work, as we all know that even Christopher Reeves was able to do that in a wheelchair, post-Superman.
As the Act requires, a Notice of Ability to Return to Work was issued, with the employer shortly thereafter filing a Suspension Petition, under which it was alleged that the Claimant was capable of working, but that the Claimant had voluntarily removed herself from the workforce, as she was not looking for work, had not looked for work, and was not seeking employment in the general labor market.
Yes, they subpoenaed her cable company bills to prove her inactivity (not).
Oddly enough, the Claimant responded, alleging that she remained umbilically attached to the workforce, having registered for work with the Pennsylvania Job Center, and she also claimed that she was not presently working because of the unavailability of work, as her light-duty position had been eliminated, negating the availability of immediate work for her.
Litigated before the workers’ compensation judge, the Claimant was able to establish, through testimony from a senior claims examiner, that the light-duty position that she had previously held had, yes, been terminated.
Proof positive that April is the cruelest month.
Notwithstanding the employer presenting the expert medical testimony of the IME doctor, evidencing that the Claimant was physically capable of performing modified-duty work, the workers’ compensation judge, bizarrely enough, denied the Suspension Petition, concluding that the Claimant had not voluntarily removed herself from the workforce.
The workers’ compensation judge concluded that the Claimant had been forced into retirement when her light-duty work was taken away from her, cruelly eliminated by her employer.
The workers’ compensation judge also accepted the Claimant’s testimony that she had reported to the Pennsylvania Job Center, after receiving the Notice of Ability to Return to Work.
Ascending through the appellate ranks, the employer eventually appealed the judge’s decision to the Commonwealth Court, which affirmed the judge’s decision in a bearish polarity opinion, finding that it was constrained by prior holdings, to include the infamousKachinski case, decided in 1987 by the Pennsylvania Supreme Court, forever establishing an employer’s burden of proof, when seeking a suspension of compensation benefits under Section 306, based on the ability to perform some level of work post-injury.
So, before the Supreme Court, the appellate issue turned on the question of when a Claimant has actually “retired” so as to invoke the suspending powers of the “withdrawal” cases, as the Commonwealth Court had concluded that the acceptance of any type of pension does not create a presumption of retirement, nor does it necessarily establish a complete withdrawal from the labor force.
Granting allocator, which is like getting dessert at your favorite diner, the Supreme Court recognized that to establish that a Claimant was withdrawing from the labor force, requires the tortured analysis of a Claimant’s state of mind, further requiring the interpretation and analysis of various subjective facts, to determine if the withdrawal was voluntary, as well as being presumptively total.
In shorthand, the Supreme Court held that the receipt of a pension, any type of pension, is not sufficient evidence, in and of itself, to establish an employer’s burden of proof, that a Claimant has voluntarily removed themselves from the workforce.
Presumptive v. Permissive
To establish that fact, as a legitimate basis for suspending a Claimant’s workers’ compensation benefits, there must be an unequivocal admission of no further attachment to or connection with the workforce, such as had been in the case ofDugan v. WCAB, 569 A.2d 1038 (Pa. Cmwlth. 1990).
The analytical paradigm being, in City of Pittsburgh, that an employee’s receipt of a disability pension only entitles the employer to a “permissive inference that the Claimant has retired”.
That inference, alone, is insufficient to establish that the worker has fully retired from the workforce, such that a suspension of compensation benefits would be inappropriate under the Pennsylvania Workers’ Compensation Act.
Other relevant and credible evidence must be introduced by the employer, to sustain its burden of proving a withdrawal from the workforce.
In short, to be disabled is not necessarily to be retired, nor does it with any prima facie likelihood, mix the memory of working with the desire to do so.
The Supreme Court’s ruling in City of Pittsburgh certainly clarifies the burden of proof and burden of production in cases of voluntary withdrawal from the workforce, while effectively reinforcing the standards of proof that had been applied in prior withdrawal cases, to include Dugan, with the predicate test for a “retirement/withdrawal” case, as basis for a suspension, being a “totality of the circumstances”, effectively begging the presidential, as opposed to precedential, question, “what is the meaning of the word, is?”.
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