Defense Digest 6/09: Shifting Burdens In The Aftermath Of A Disability Pension; No Window Shopping And Surfing For Jobs By Claimant

By J. Jeffrey Watson, Esq.*

Pennsylvania - Workers' Compensation

In Mason v. Workers' Compensation Appeal Board (Joy Mining Machinery), 944 A.2d 827, (Pa. Commw. Ct. 2008), the Pennsylvania Commonwealth Court revisited the shifting burdens to suspend or modify benefits when a claimant retires or takes a disability pension. The court reaffirmed that the employer can rebut and modify/suspend benefits by demonstrating that a claimant was offered suitable alternative employment and has voluntarily left the workforce.

Mason, a welder, sustained a work-related knee injury. After surgery, the claimant was released with restrictions, and the employer decided not to offer the claimant modified work. The claimant was granted a disability pension with his employer.

After meeting with a vocational counselor, the claimant failed to submit applications or appear for interviews regarding job referrals. Evidence suggested the claimant did not want to pursue any position in that he would have to forfeit his social security disability benefits as well as his employer-funded disability pension if he returned to work. The employer filed a petition to modify or suspend benefits.

The Workers' Compensation Judge modified benefits, finding that the claimant had an earning capacity and failed to respond in good faith to suitable employment opportunities. However, the Workers' Compensation Judge failed to suspend the claimant's benefits, finding the employer had refused of offer the claimant work because he took the pension.

On appeal, the Workers' Compensation Appeal Board agreed with the employer that when the claimant failed to pursue the jobs, the burden should have shifted to the claimant, not the employer, to show that the claimant had not voluntarily withdrawn himself from the entire labor market.

The Commonwealth Court, citing Southeastern Pennsylvania Transportation Authority v. W.C.A.B. (Henderson), 543 Pa. 74, 669 A.2d 911 (1995), ultimately held that an employer is not required to offer suitable alternative employment when a claimant has left the workforce, having no intention of working; a deviation from the Kachinski standard that an employer must demonstrate that suitable employment was made available to a claimant.

The holding in Mason thus reaffirmed Henderson's application to a claimant's voluntary acceptance of a pension. In such a circumstance, the claimant is presumed to have left the workforce, and a suspension of benefits is mandated. An employer is not required to show that a claimant has no intention of continuing to work as such a burden of proof would be prohibitive.

This presumption in favor of the employer is rebuttable. A claimant who accepts a pension faces the burden to overcome the presumption that he has left the workforce by establishing that; (1) the claimant is seeking employment, or (2) the work-related injury forced the claimant to retire.

Once a claimant establishes either, the employer then has the opportunity for another bite at the apple to modify benefits by demonstrating that the claimant was offered suitable alternative employment.

Under the first part of Henderson, a claimant has the burden to show he is seeking employment by engaging in a good faith job search. The search must include an attempt to secure employment in jobs within the claimant's physical limitations, excluding jobs that are not suitable for other valid reasons. A personal reason not to seek a job would be one that causes the claimant to "forfeit a qualitative benefit," such as an entitlement to a disability pension. However, a claimant cannot refuse to look for employment if merely required to "temporarily" forego such a benefit.

Under the second part of Henderson, a claimant has to establish he was incapable of working at any job in the entire labor market, not just that he was incapable of performing his pre-injury position.

The Mason Court provided a further example that a claimant's refusal to accept employment proffered by an employer does not necessarily mean the claimant has left the workforce; all it means is that the claimant failed to apply for those jobs because he found those jobs personally unappealing. A claimant whose work-related injury forced him to accept a pension or is otherwise engaged in a good faith job search cannot be found to have left the workforce, and a suspension of benefits is not proper.

In Mason, the Workers' Compensation Judge made findings that the claimant was forced to retire due to his work injury, and, thus, the claimant met the second prong of Henderson. However, the Workers' Compensation Judge failed to shift the burden back to the employer and failed to make findings necessary to determine whether the claimant had left the workforce. As a result, the Commonwealth Court vacated the Appeal Board's decision and remand the matter back to the Workers' Compensation Judge for such findings.

Subsequent to Mason, the Commonwealth Court decided Pennsylvania State University v. W.C.A.B. (Hensal), 948 A.2d 907, 912 (2008) under the first prong of Henderson. The court held that the findings of the Workers' Compensation Judge that the claimant failed to show he was engaged in a good-faith effort to seek employment were supported by the record.

The court in Hensal held, "Searching the Internet and newspaper ads for jobs, without more, does not constitute a job search; it constitutes 'surfing' the web and reading the newspaper -- it is window shopping." The court held that "[t]o show that he was engaged in a good-faith effort, a claimant has to show that he applied or sent applications for employment or other indica that he was actively applying for employment."

In dissent, Judge Friedman stated that the majority ignored credible testimony that the claimant had taken positive steps toward finding employment, including use of the Internet and newspapers. The majority opinion may have been influenced that claimant's "efforts" to find work did not begin until two weeks prior to the first hearing.

*Jeff is an associate in our Harrisburg, Pennsylvania, office and can be reached at (717) 651-3529 or jjwatson@mdwcg.com.