The Commonwealth Court has once again redefined retirement for workers’ compensation claimants. I don’t know about you, when I picture retirement, I picture myself:
Leaving the dismal winter weather of Pittsburgh (at least for January and February);
Not looking for another job; and
Seeing my physician as little as possible.
That’s it! That about defines my big plans for retirement. Oh, and I will probably admit that I left the Pittsburgh job market, have not looked for any work, but may consider working at some point if I get bored.
Once again, a claimant with a similar life plan was allowed to continue to receive total disability workers’ compensation benefits. In Chesik v. WCAB (Dept. of Military and Veterans' Affairs) (decided October 9, 2015), the Commonwealth Court reversed the finding of the WCJ and determined that the Employer had not met its burden of proving by a totality of circumstances that the Claimant had retired.
The facts of the case, in my humble opinion (and apparently that of the WCJ who actually heard the case) certainly support the suggestion that the Claimant had retired. In 2009, Claimant sustained a cervical sprain/strain injury. Claimant applied for disability pension benefits in December 2012 and was awarded those benefits. She then moved to Nevada in March 2013. During her testimony, Claimant admitted that she had removed herself from the workforce in Scranton and had not looked for work in Nevada. She indicated that she moved to Nevada because she did better in a warmer climate, while admitting that no physician suggested that she do so. She also admitted to treating for her neck on only one occasion since her relocation.
The WCJ was persuaded that Claimant had retired and granted the Suspension Petition based on Claimant voluntarily removing herself from the workforce. The WCAB affirmed.
Unfortunately, the Commonwealth Court weighed the evidence differently and found that the Employer had the burden of proving that Claimant had voluntarily left the work force and failed to do so, despite the evidence that Claimant accepted a retirement pension, moved to a warmer climate, treated minimally, and had not looked for work. The Court noted that the Claimant’s receipt of a retirement pension was only an “inference” that Claimant had retired, not proof that she had done so through a totality of the circumstances. Most disturbingly, the Court found that the Employer presented “no evidence” that the Claimant had “permanently” removed herself from the workforce.
From an Employer’s perspective, this seems like an outrageous burden. How are we to prove that a Claimant’s plans for withdrawal from the workforce are permanent? All a Claimant has to do is state that at some point, he or she may re-enter to workforce to defeat Employer’s position.
At this juncture, while the Courts chip away at the removal from the workforce defense, Employers may need to couple these petitions with evidence of work available to show that the Claimant is not pursuing work. Perhaps we will need to call the bluff of retired Claimants who “would love to work.” The Pennsylvania Workers’ Compensation Act is founded upon the principle of “wage loss.” When wage loss is caused by voluntary retirement unrelated to an injury, the receipt of ongoing benefits cannot go unchallenged.