The recent PA Supreme Court holding in City of Pittsburgh & UPMC Benefits Management Services, Inc. v. WCAB (Robinson), 18 WAP 2011, which was decided on March 25, 2013, appears to have shifted the initial burden of proof  in a case where that a claimant who retired has taken himself out of the work force by said retirement. Henderson, had been the previous standard, where the claimant was presumed to have taken themselves out of the work force due acceptance of a pension. Now, it appears that the employer bears the burden of showing by a “totality of the circumstances” that the claimant has chosen to retire and not return to the workforce when they are seeking a suspension of benefits.

 

The court took the opportunity to clarify the standard that applies in cases involving an employer’s petition to suspend or modify benefits premised on the claimant’s alleged voluntary withdrawal from the workforce, as evidenced by acceptance of a pension. The court held, “there is no presumption of a retirement arising from the fact that the claimant seeks or accepts a pension, much less a disability pension; rather, the worker’s acceptance of a pension entitles the employer only to a permissive inference that the claimant has retired.” The court noted that such an inference, if drawn, is not on its own sufficient evidence to establish that a worker has retired—the inference must be considered in the context of the totality of the circumstances. The fact finder (WCJ) must also evaluate all of the other relevant and credible evidence before concluding that the employer has carried its burden of proof.

 

The Commonwealth Court suggested the employer use objective facts, including the claimant’s receipt of a pension, the claimant’s own statements relating to voluntary withdrawal from the workforce and claimant’s efforts or non-efforts to seek employment to show that the claimant has taken themselves out of the work force.

 

However, if the employer produces sufficient evidence to support a finding that the claimant has voluntarily left the workforce, then the burden shifts to the claimant to show that there in fact has been compensable loss of earning power. The court noted that if the employer fails to present sufficient evidence to show that the claimant has retired, then the employer must proceed as in any other case involving a proposed modification or suspension of benefits.

What It Means to You

Moving forward, the employer must show by the “totality of the circumstances” that a claimant has removed themselves from the general workforce by voluntarily retiring before shifting the burden back to the claimant.