While we do not typically discuss “unreported” decisions of the Commonwealth Court of Pennsylvania (see this blog post on the difference between reported and unreported decisions), a recent such decision touches on an important topic – the concept of a voluntary withdrawal from the labor market, or, in normal language, retirement.
Once an injured worker proves an entitlement to PA workers’ compensation benefits, those benefits generally continue until something changes. That change could be the injured worker returning back to work, or an intervening decision from a Workers’ Compensation Judge (WCJ) regarding the full recovery of the injured worker, or the availability of work within the restrictions of the injured worker (among other things that can impact the continued receipt of benefits).
One other concept which can impact the continued receipt of benefits is a “voluntary withdrawal from the labor market,” which was the subject of the unreported decision by the Commonwealth Court of PA in Ogden Corporation (Broadspire) v. Workers’ Compensation Appeal Board (Keene). Essentially, if the workers’ compensation insurance carrier can establish that the injured worker has retired, then the injured worker may no longer be entitled to wage loss (what we call “indemnity” benefits – the right to medical benefits would not be disturbed). The concept of “voluntary withdrawal from the labor market” is basically proving the injured worker “retired.”
In Keene, the injured worker testified that she looked at classified ads and asked family about job openings. She said she applied for two jobs, and was offered neither. There was no dispute that the work injury rendered her unable to perform her preinjury position, though there was a disagreement whether she was capable of light duty or sedentary duty. Additionally, she testified that she did not consider herself retired. The WCJ found the testimony of the injured worker generally credible.
The workers’ comp insurance carrier alleged that, looking at the totality of circumstances, the injured worker voluntarily withdrew from the labor market. As the Court noted, quoting prior case law, this analysis examines, ‘’the claimant’s receipt of a pension, the claimant’s own statements relating to voluntary withdrawal from the workforce, and the claimant’s efforts or non-efforts to seek employment.”
Here, the injured worker was not receiving a pension, or Social Security Retirement benefits, and had credibly testified she did not consider herself retired. The Court related that the receipt of a pension alone (even if present) does not establish a retirement. The insurance carrier relied on the doctor’s release to work (whether light or sedentary duty) and the fact that the injured worker only applied to two positions. This was insufficient for the WCJ, who found that the injured worker did not voluntarily withdraw from the labor market. The Workers’ Compensation Appeal Board (WCAB) affirmed this decision.
Upon further appeal, the Commonwealth Court of PA also affirmed the decision of the WCJ. Citing prior case law, the Court stated that, “An employer cannot rely solely on a claimant’s failure to seek work to prove voluntary retirement from the workforce, as an employer has a duty to make job referrals until a claimant voluntarily retires.” As such, there was no other indicia of a “retirement.”
This concept of a voluntary withdrawal from the labor market, and its tremendous impact on the rights to continuing PA workers’ compensation benefits, is a clear reminder to injured workers that it is important to be guided by the advice of an attorney, certified as a specialist in workers’ compensation law, throughout the life of the case. An injured worker could easily cost himself or herself valuable rights by taking an action without knowing the consequences of such an action.