From the Desk of Adam K. Levin, Esq. (PA workers’ comp attorney)
When seeking to suspend a Claimant’s PA work comp benefits, an employer is not entitled to rely on the employee’s failure to seek work to prove a voluntary retirement from the workforce unless the employer proves thatthe injured worker voluntarily retired.
Keene v. W.C.A.B. (Ogden Corp.), 2011 Pa. Commw. LEXIS 233
The Pennsylvania Commonwealth Court ruled that the PA Workers’ Compensation Appeal Board (WCAB) erred in concluding that a claimant’s failure to look for work during a two-year period establishes claimant voluntarily removed herself from the workforce. The Commonwealth Court further ruled that an injured worker has no duty to show she sought work until the employer meets the initial burden to a voluntary retirement.
In the Keene case, while operating an airport passenger shuttle, the employee slipped on the shuttle step and injured her knee. She underwent surgery, reached maximum medical improvement, and was able to perform only full-time sedentary work. Despite engaging in a job search for suitable work and applying for multiple positions, the employee was not hired. Thereafter, the employer filed its suspension petition, alleging that the employee had voluntarily removed herself from the work force. The Workers’ Compensation Judge (WCJ) accepted the employee’s testimony that she had been actively seeking employment, and the WCJ determined that she had not voluntarily removed herself from the work force. Accordingly, the suspension petition was denied. However, the WCAB reversed that decision on appeal based on the employee’s testimony that she had not applied for work for two years because it was very depressing. On appeal, the Commonwealth Court disagreed with the WCAB. It found that the employer did not meet its initial burden of proving that the employee had voluntarily retired for purposes of the PA Work Comp Act. She had testified that she did not accept a retirement pension and did not refuse suitable work. Accordingly, suspension was not warranted
The workers’ comp attorneys at Liever, Hyman & Potter, P.C., handle cases just like this as a regular part of our practice in Berks County and Schuylkill County, PA.