The opinion of the court was delivered by: Judge Cohn Jubelirer
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge.
City of Pittsburgh and UPMC Benefit Management Services, Inc. (together, Employer) petition for review of the order of the Workers' Compensation Appeal Board (Board), which affirmed the decision and order of the Workers' Compensation Judge (WCJ). In his decision and order, the WCJ denied Employer's Petition to Suspend Compensation Benefits (Suspension Petition) on the grounds that Employer failed to show that work was available within the work restrictions of Dorothy Robinson (Claimant) and, alternatively, that Claimant met any burden she might have of showing that she remained attached to the workforce after her retirement.
Claimant began working for Employer as a police officer on April 17, 1989. While working for Employer in 1997, Claimant sustained a work-related injury to her neck and right shoulder. Thereafter, Claimant worked for Employer in a light-duty position. While traveling to an appointment for treatment for her work-related injury on October 15, 2001, Claimant was involved in an automobile accident and sustained injuries to her neck, the right side of her lower back and right shoulder. Employer accepted these injuries through a Notice of Temporary Compensation Payable dated December 18, 2001, which later converted to a Notice of Compensation Payable. Claimant did not return to her light-duty job immediately after the car accident. In 2003, Employer discontinued its transitional-duty program, under which Employer had previously provided Claimant with her modified-duty position. In late 2004, Claimant sought, and received, a disability pension from Employer. Victor Thomas, M.D., performed an independent medical examination of Claimant on Employer's behalf on October 30, 2007. Dr. Thomas opined that Claimant was capable of light-duty, sedentary work. Based on that opinion, Employer sent Claimant a Notice of Ability to Return to work on November 8, 2007. Less than two weeks later, on November 21, 2007, Employer filed the Suspension Petition, arguing that Claimant voluntarily withdrew from the workforce because she failed to look for suitable work within her restrictions after retiring. After Employer filed its Suspension Petition, Claimant went to a local employment center and looked for jobs she believed she could perform, but did not apply for any. Claimant also searched the newspaper for jobs.
The Suspension Petition was assigned to the WCJ, who held three hearings on the matter on January 15, 2008, May 29, 2008, and October 2, 2008. Claimant presented her own testimony, as well as the deposition testimony of Deborah Curry, a senior claims examiner for Employer's insurer. Employer presented Dr. Thomas's deposition testimony. The WCJ determined that, pursuant to Bethlehem Steel Corp. v. Workers' Compensation Appeal Board (Laubach), 563 Pa. 313, 760 A.2d 378 (2000), where an employer eliminates a claimant's modified-duty position, as Employer did here, the employer must place the claimant on temporary total disability benefits and, if the employer later seeks to modify or suspend the claimant's benefits, the employer must show the availability of suitable work. The WCJ held that Employer failed to meet this burden. The WCJ determined that Employer forced Claimant into retirement by eliminating her modified-duty position. (WCJ Decision, Findings of Fact (FOF) ¶ 22.) Citing the Supreme Court's decision in Southeastern Pennsylvania Transportation Authority v. Workmen's Compensation Appeal Board (Henderson), 543 Pa. 74, 669 A.2d 911 (1995), the WCJ noted that a claimant may continue to receive workers' compensation benefits despite being retired where the claimant was forced into retirement by the work-related injury. The WCJ acknowledged this Court's decision in County of Allegheny (Department of Public Works) v. Workers' Compensation Appeal Board (Weis), 872 A.2d 263, 265 (Pa. Cmwlth. 2005), which held that a claimant must be forced by her work-related injury to retire from the entire workforce, not just from her pre-injury position, but held that this decision and similar decisions from this Court conflicted with the Supreme Court's decision in Henderson. (WCJ Decision, Conclusions of Law (COL) ¶ 6.) The WCJ also, however, found Claimant to be credible and found, based on Claimant's testimony, that Claimant had been looking for work. (FOF ¶¶ 17-18.) The WCJ concluded that Employer failed to meet its burden of proof and, therefore, denied the Suspension Petition. (COL ¶ 5; WCJ Order at 10.) Employer appealed to the Board.
Before the Board, Employer argued that the WCJ erred in failing to apply Weis and that the WCJ's findings were not supported by substantial evidence. The Board upheld the WCJ's decision, noting that the WCJ's decision did not conflict with Weis because the WCJ found that Claimant had looked for work and, therefore, remained attached to the labor market. The Board also noted that the WCJ correctly found that Employer failed to offer evidence of available, suitable work for Claimant, which, in the Board's view, might have justified a denial of benefits pursuant to this Court's holding in Pennsylvania State University v. Workers' Compensation Appeal Board (Hensal), 948 A.2d 907 (Pa. Cmwlth. 2008). The Board, therefore, affirmed the WCJ's Decision. Employer now petitions this Court for review.*fn1
Before this Court, Employer argues that the Board erred in: (1) upholding the WCJ's finding that Claimant remained attached to the workforce when this finding was not supported by substantial evidence; (2) affirming the WCJ's finding that Claimant was forced out of the entire workforce; and (3) determining that Employer needed to present evidence of the availability of suitable work within Claimant's abilities in order to prevail on its Suspension Petition. For the following reasons, we affirm the Board.
Generally, in order to suspend a claimant's benefits, an employer must meet the following requirements:
1. The employer who seeks to modify a claimant's benefits on the basis that he has recovered some or all of his ability must first produce medical evidence of a change in condition.
2. The employer must then produce evidence of a referral (or referrals) to a then open job (or jobs), which fits in the occupational category for which the claimant has been given medical clearance, e.g., light work, sedentary work, etc.
3. The claimant must then demonstrate that he has in good faith followed through on the job referral(s).
4. If the referral fails to result in a job then claimant's benefits should continue.
Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 252, 532 A.2d 374, 380 (1987). Pursuant to Section 306(b)(2) of the Workers' Compensation Act,*fn2 an employer may establish its entitlement to a suspension or modification by either referring a claimant to an available position as required by Kachinski or "establish[ing a claimant's] 'earning power' through expert opinion evidence including job listings with employment agencies, agencies of the Department of Labor and Industry, and advertisements in a claimant's usual area of employment." South Hills Health System v. Workers' Compensation Appeal Board (Kiefer), 806 A.2d 962, 966 (Pa. Cmwlth. 2002).
However, an employer need not prove the availability of suitable work when a claimant voluntarily removes herself from the labor market through retirement. See Henderson, 543 Pa. at 79, 669 A.2d at 913 ("For disability compensation to continue following retirement, a claimant must show that he is seeking employment after retirement or that he was forced into retirement because of his work-related injury"). In Henderson, our Supreme Court stated:
It is clear that disability benefits must be suspended when a claimant voluntarily leaves the labor market upon retirement. The mere possibility that a retired worker may, at some future time, seek employment does not transform a voluntary retirement from the labor market into a continuing compensable disability. An employer should not be required to show that a claimant has no intention of continuing to work; such a burden of proof would be prohibitive.
Id. In fact, where a claimant voluntarily retires, it is the claimant who bears the burden of showing either that her work-related injury has forced her out of the entire workforce or that she is looking for work after retirement. Id.; Weis, 872 A.2d at 265. Here, the WCJ found that Claimant did not "voluntarily remove herself from the workforce" and that she continued to look for work. (FOF ¶¶ 16-17.) Likewise, the Board determined that Claimant was eligible for benefits because Employer failed to show that work was available to Claimant within her limitations and because Claimant continued to look for work. (Board Decision at 4-5.)
We first address Employer's argument that the Board erred in determining that Employer needed to present evidence of the availability of suitable work within Claimant's abilities in order to prevail on its Suspension Petition. Claimant, for her part, argues that where an employer has modified work available, but refuses to provide such work to a claimant, the burden is properly on the employer to show the availability of suitable work. Fundamentally, what is at issue is the question of when the burden should shift from an employer to show the availability of suitable work, under the Kachinski standard, to a claimant to show that she is still attached to the workforce or was forced out of the entire workforce by her work-related injury, under the Henderson standard. In other words, when is a claimant "retired" such that Henderson and its progeny apply?
Employer, in this case, appears to assume that Claimant retired because she applied for, and accepted, a disability pension. Such an assumption is not surprising because the issue of whether a claimant had retired has rarely been in dispute. In Henderson, for example, the claimant testified that "he was receiving Social Security retirement benefits and that he was applying for a pension from SEPTA on his 65th birthday . . . [and] that he was not looking for work." Henderson, 543 Pa. at 76, 669 A.2d at 912 (emphasis added). Thus, it was clear in Henderson that the claimant had retired given that the claimant was receiving a retirement pension and admitted that he was not looking for work.
Likewise, in cases interpreting Henderson, it appears that the issue of whether a claimant was, in fact, retired has seldom, if ever, been fully litigated. However, an examination of these cases reveals that in each, the claimant's retirement was undisputed or that the totality of the circumstances supported a holding that the claimant had made the decision to retire. For instance, in Weis, it was "undisputed Claimant retired and did not seek employment after retirement." Weis, 872 A.2d at 265. In Hepler v. Workers' Compensation Appeal Board (Penn Champ/Bissel, Inc.), 890 A.2d 1126 (Pa. Cmwlth. 2006), the claimant disputed, before the WCJ, whether he was terminated by the employer or voluntarily retired. The WCJ determined that the claimant, who had accepted a disability pension from the employer, as well as a social security disability pension, retired and was not terminated. Id. at 1127. The WCJ based this decision on the testimony of the employer's inventory and warehouse manager, who testified that claimant voluntarily retired and was not terminated. Id. In addition, the claimant did not look for work despite having been released to work two years previously. Id. The WCJ determined, however, that because the claimant retired from his position due to his work injury, he was eligible for benefits. Id. at 1128. This Court affirmed the Board's reversal of the WCJ's determination, on the basis of Weis, because the claimant failed to show that his work-related injury forced him to retire from the entire workforce. Id. at 1130. Thus, this Court did not review the WCJ's determination that the claimant voluntarily retired.
In Hensal, the claimant suffered a work-related injury and began receiving workers' compensation benefits. Hensal, 948 A.2d at 908. Two years later the claimant sought a disability pension. Id. The employer then filed a modification petition and showed that work was available within the claimant's work restrictions. Id. As part of its modification petition, the employer had identified positions that were available to the claimant. Id. at 909. In his decision on the modification petition, the WCJ found that "general work was available to Claimant within his work restrictions, such as a parking lot attendant or assembler, and that Claimant could have been hired if he had been 'motivated to seek employment.'" Id. (footnote omitted). Therefore, the WCJ reduced the claimant's benefits by the amount of the average weekly wage of the available positions. Id. at 908. Almost two years after the employer filed its modification petition, the claimant was still unemployed. Id. at ...