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PA Workers’ Compensation – Suspension of Wage Loss Benefits – Keene v. WCAB

Pennsylvania Workers' Compensation Case Studies

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Keene v. WCAB (Ogden Corp.) 92 A.3d 897 (Pa. Commw. 2014).

An employer may be entitled to a suspension of benefits if it proves that the injured worker, off of work and receiving disability benefits, has voluntarily withdrawn from the workforce. In 2014, the Commonwealth Court revisited a 2013 decision where it concluded that employer had not made such a showing. The court, upon this revisitation, again concluded that claimant had not voluntarily withdrawn from the workforce. This was so even though claimant at one point had not looked for work for about two years, as the unsuccessful effort was too depressing. Keene v. WCAB (Ogden Corp.), 92 A.3d 897 (Pa. Commw. 2014). [2014 Pa. Commw. LEXIS 304.] The court stressed that whether an injured worker has voluntarily withdrawn from the workforce is a fact finding – not a legal conclusion.

Claimant, Keene, was employed as an airport passenger shuttle operator. She injured her right knee in 1989 when she slipped on the step of the shuttle. She was paid benefits voluntarily, and she underwent knee replacement. At some point after the injury, claimant became entitled to Social Security disability.

Similarly, at some point after the injury, claimant was looking in the newspaper for suitable work. She received leads on jobs and applied for everyone, but she was not hired. (With an injury of 1989, the employer was likely attempting actual job placement under the Kachinski test.) In any event, claimant at no time “submitted a retirement statement to the employer,” nor did she ever start receiving a pension. In October 2007, an employer filed for suspension, alleging that claimant had voluntarily removed herself from the workforce. After the filing, notably, claimant applied for further jobs as a driver.

The WCJ denied the petition, finding that claimant had not voluntarily removed herself from the workforce. The board disagreed, and it reversed. In doing so, the board “relied upon Claimant’s testimony that she did not apply for work for two years because it was very depressing.” The board stated, “claimant’s admitted failure to make any effort to apply for work for two years based solely on her negative feelings about the job seeking process establishes that she withdrew from the workforce by choice .…”

Commonwealth Court reversed. In its view, “an employer is not required to prove the availability of suitable work when the employer proves by a totality of the circumstances that the claimant has voluntarily retired from the workforce.” According to the court, the board had mis-applied the law. The case is reported at 21 A.3d 243 (Pa. Commw. 2011).

The Supreme Court thereafter vacated and remanded, directing Commonwealth Court to revisit the case based upon its holding in City of Pittsburgh v. WCAB (Robinson), 67 A.3d 1194 (Pa. 2013). That decision creates the rule that the employer has the burden of proving that the claimant has voluntarily left the workforce. No presumption exists of a retirement arising from the fact that a claimant seeks or accepts a pension. The WCJ must also evaluate all of the other relevant and credible evidence before concluding that the employer has carried its burden of proof.

Source: Pennsylvania Department of Labor and Industry, News & Notes, Summer 2014, Vol. 19 / No. 2.

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