Under the Pennsylvania Workers’ Compensation Act and a myriad of case law, several bases exist upon which the indemnity benefits of an employee, who suffers from residual disability, may be suspended. One such basis is a claimant’s voluntarily withdrawal from the labor market.

The Commonwealth Court revisited this issue in the recent case of City of Pittsburgh and UPMC Benefit Management Services, Inc. v. WCAB (Marinack). In Marinack, the claimant sustained a work injury while working for the City of Pittsburgh (City) as a firefighter. The City accepted liability and issued a Notice of Compensation Payable (NCP) following the injury. Pursuant to the NCP, the claimant received total disability benefits. Several years later, the claimant’s treating physician informed the City that the claimant could work fulltime in a light-duty position. Subsequently, the City filed a petition to suspend the claimant’s benefits, alleging that he voluntarily removed himself from the workforce. The claimant denied the allegations.

In support of its petition, the City offered the testimony of two doctors who opined that the claimant was capable of sedentary or medium-duty work. Both doctors testified that the claimant never asked for their help to return to work or to identify job restrictions for him. The City also noted that the claimant had applied for a disability pension, but he was ineligible because he had previously been fired from his employment. Claimant testified that after receiving the Notice of Ability to Return to Work, he interviewed for two positions, one with a relative and another with a high school friend. The Workers’ Compensation Judge (WCJ) found that the claimant had voluntarily withdrawn from the workplace. This decision was reversed by the Workers’ Compensation Appeal Board (WCAB). On appeal, the Commonwealth Court affirmed the WCAB’s reversal of the WCJ.

In its decision, the court relied upon previous decisions in City of Pittsburgh and UPMC Benefit Management Services, Inc. v. WCAB (Robinson), 4 A.3d 1130 (Pa. Cmwlth. 2010), and Keene v. WCAB (Ogden Corporation), 21 A.3d 243 (Pa. Cmwlth. 2011). In Robinson, a plurality of the court held that an employer must aid an injured employee in returning to the workforce by identifying the claimant’s medical capabilities and available employment opportunities. However, an employer is relieved of this burden where it can prove by a “totality of the circumstances that such efforts would be unavailing because the claimant has withdrawn from the workforce.” Robinson, 4 A.3d at 1138.

The court found that in Marinack the City failed to meet either burden. The court explained that the claimant’s lack of effort to look for a job alone did not make the City’s “totality of the circumstances” case and the employer did not present any evidence that it assisted the claimant in returning to the workforce. Thus, the City had failed to meet its burden to prove that the claimant had voluntarily withdrawn from the workforce.

 

What It Means to You

The burden of proof on employers in suspension cases is high, and the burden to prove a claimant’s intent to voluntarily withdraw from the workforce is even more so. Thus, more traditional bases for suspension should be explored prior to asserting that the claimant has voluntarily withdrawn from the workforce. Therefore, available positions with the employer that fall within a claimant’s capabilities should be identified and offered to the claimant as soon as work restrictions are imposed.