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
Melvin Day (Claimant) petitions 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 her decision and order, the WCJ granted the Petition to Suspend Compensation Benefits (Suspension Petition) filed by the City of Pittsburgh (Employer) on the grounds that Claimant had retired and failed to show either that he was forced to retire from the entire workforce due to his work-related injury or that he was looking for work.
Claimant began working as a helper in Employer's sanitation department in 1978 or 1979 and later became a driver. As a driver, Claimant's duties included driving a truck and picking up garbage and discarding items of varying weights. On March 19, 1992, Claimant injured his neck. Through a Notice of Compensation Payable, Employer accepted Claimant's injury as a cervical strain. Claimant underwent surgery for his neck injury and returned to his pre-injury position in 1993 or 1994. Claimant could not continue in this position, however, and began working for Employer in modified, light-duty positions in 1995 or 1996, usually as a custodian. Employer laid Claimant off in 2000 or 2001.
After Employer laid him off Claimant applied for, and received, Unemployment Compensation (UC) benefits. While receiving UC benefits, Claimant looked for light-duty jobs, but was unable to find any. When his UC benefits ran out sometime in 2000 or 2001, Claimant applied for, and received, a Social Security pension, as well as a pension from Employer. Claimant did not look for work after his UC benefits ran out; instead, he began collecting his Social Security pension. Claimant also received temporary total disability workers' compensation (WC) payments. At Employer's request, Claimant underwent an independent medical examination by David Vermeire, M.D., who determined that Claimant was capable of full-time, medium-duty work. On the basis of Dr. Vermeire's opinion, Employer sent Claimant a Notice of Ability to Return to Work on December 3, 2007. Employer filed its Suspension Petition on December 11, 2007, seeking to suspend Claimant's benefits on the grounds that he had voluntarily withdrawn from the workforce.
Hearings were held before the WCJ on Employer's Suspension Petition on January 28, 2008, February 20, 2008, July 7, 2008, and October 27, 2008. Claimant testified on his own behalf. During his testimony, Claimant stated that he believed he could perform custodial work of the type he had previously performed for Employer. (WCJ Hr'g Tr. at 15, February 20, 2008.) Claimant also testified that he had not looked for work after he stopped receiving UC and began receiving his pensions. (WCJ Hr'g Tr. at 9-10.) Claimant also testified that he was aware that he had been released to work with restrictions, "[m]odified to lifting no more than like 30 pounds, no sudden movements, no staring up." (WCJ Hr'g Tr. at 10.) Claimant did not introduce any medical evidence. Employer introduced the deposition testimony of Deborah Curry, a senior claims examiner for Employer's insurer, and Dr. Vermeire. The WCJ credited Claimant's testimony that he looked for modified-duty work while receiving UC benefits, but stopped looking for work after he retired. (WCJ Decision, Findings of Fact (FOF) ¶ 6(a).) On this basis, the WCJ concluded that Claimant had voluntarily removed himself from the workforce and granted the Suspension Petition.
Claimant appealed the WCJ's decision to the Board. Before the Board, Claimant argued that the WCJ erred in determining that Claimant had voluntarily removed himself from the workforce and that, pursuant to Supreme Court precedent, when an injured claimant stops working due to his work-related injury, "[t]he [e]mployer has the burden of proof that it either offered the injured [claimant] a modified job or directed the injured [claimant] to a then open position with another employer." (Appeal From Judge's Findings of Fact and Conclusions of Law at 1, April 3, 2009.) Citing Southeastern Pennsylvania Transportation Authority v. Workmen's Compensation Appeal Board (Henderson), 543 Pa. 74, 669 A.2d 911 (1995), the Board stated that "[f]or compensation to continue after the claimant retires the claimant must prove (1) that he or she is seeking employment after retirement or (2) that the employee was forced into retirement because of the work-related injury." (Board Op. at 3.) The Board concluded that Claimant's testimony, that he did not look for work after he began receiving his Social Security pension, provided substantial evidence for the WCJ's finding that Claimant voluntarily removed himself from the workforce. (Board Op. at 4-5.) The Board affirmed the WCJ's order. Claimant now petitions this Court for review of the Board's order.*fn1
Before this Court, Claimant argues that the WCJ and the Board improperly shifted the burden of proof to Claimant to show that he was still looking for work after taking his Social Security pension, rather than requiring Employer to show that suitable jobs were available for Claimant. Claimant argues that the WCJ's and the Board's determination that Claimant voluntarily withdrew from the workforce was in error and that the Board's order affirming the WCJ's order suspending Claimant's UC benefits should be reversed. For the following reasons, we disagree.
Generally, in order to suspend a claimant's UC 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 (Act),*fn2 an employer may prove its entitlement to a suspension or modification of benefits by referring a claimant to an available position as required by Kachinski, or by "establish[ing the 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 is not required to prove the availability of suitable work when a claimant voluntarily removes himself from the labor market through retirement. See Henderson, 543 Pa. at 79, 669 A.2d at 913. Where a claimant has voluntarily retired, the claimant has the burden of showing either that his work-related injury has forced him out of the entire workforce or that he is looking for work after retirement. Id.; County of Allegheny (Department of Public Works) v. Workers' Compensation Appeal Board (Weis), 872 A.2d 263, 265 (Pa. Cmwlth. 2005). In this case, the Board held that Claimant failed to show either that his work-related injury forced him out of the entire workforce or that he was continuing to look for work. Claimant argues that the Board's application of Supreme Court precedent regarding retirement in WC cases, and this Court's case law interpreting that precedent, go too far and place an unfair burden on a claimant who is discharged by his time-of-injury employer from a modified-duty job. In order to properly address Claimant's arguments, it is necessary first to discuss the line of cases leading up to the current standard. The current standard grew out of Supreme Court case law that framed the issue of how post-retirement WC benefits should be handled in terms of the traditional definition of disability in workers' compensation law.
In Republic Steel Corp. v. Workmen's Compensation Appeal Board (Petrisek), 537 Pa. 32, 640 A.2d 1266 (1994), the claimant voluntarily retired from work as a coal miner in 1981 and filed a claim petition for pneumoconiosis in 1988. Id. at 33, 640 A.2d at 1267. The referee*fn3 and the Board found that the claimant was entitled to compensation. Id. at 34, 640 A.2d at 1267 The employer appealed, arguing that the claimant was not entitled to benefits because he had voluntarily retired, had no intention of returning to work and, therefore, suffered no wage loss associated with his occupational disease. Id. In analyzing this argument the Supreme Court examined its decision in Unora v. Glen Alden Coal Co., 377 Pa. 7, 104 A.2d 104 (1954). In Unora, the Supreme Court stated that, while physical impairment was one element of disability for purposes of the Act, "the second ingredient [of disability] is de facto inability to earn wages, as evidenced by proof that claimant has not in fact earned anything." Id. at 12, 104 A.2d at 107. The Supreme Court went on to state that "[t]he proper balancing of the medical and the wage-loss factors, is, then, the essence of the 'disability' problem in workmen's compensation." Id. (quoting 2 Arthur Larson, Law of Workmen's Compensation § 57.10 at 2-3 (1952)). Based on these statements the Supreme Court, in Republic Steel, interpreted Unora for the principle that "entitlement to benefits under the Act is contingent upon proof that the claimant suffered an injury or disease in the work place and the injury or disease affects his or her ability to earn a wage." Republic Steel, 537 Pa. at 36, 640 A.2d at 1268 (emphasis in original). The Supreme Court held that, because the claimant had retired, there was no evidence in the record that the claimant had suffered any loss of earning power due to his occupational disease and, therefore, the claimant was not entitled to benefits. Id. at 36, 38 n.3, 640 A.2d at 1268-69, 1270 n.3.
In Henderson, the claimant injured his knee while working for the employer and received total disability benefits pursuant to a notice of compensation payable. He returned to a light-duty position with the employer and his benefits were modified to partial disability. Later he returned to total disability, but then went back to partial disability. Further litigation followed about his proper disability status. The claimant testified "that he was receiving Social Security retirement benefits and that he was applying for a pension from [the employer] on his 65th birthday, June 18, 1989." Henderson, 543 Pa. at 76, 669 A.2d at 912. There was also "evidence that he began receiving pension benefits on July 1, 1989. [The claimant] testified that he was not looking for work." Id. Therefore, the WCJ determined that the claimant was retired as of July 1, 1989 and not entitled to further WC disability compensation. The Board reversed the WCJ, and this Court affirmed the Board on the grounds that "there must also be unequivocal evidence that the claimant has no intention of seeking employment after retirement." Id. The Supreme Court reversed this Court, stating:
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. 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.
Id. at 79, 669 A.2d at 913.
This Court interpreted Henderson in Weis. In Weis, the claimant injured his knee in 1981. Weis, 872 A.2d at 264. The employer paid benefits under a notice of compensation payable until 2001, at which time it filed a suspension petition on the ground that the claimant had voluntarily withdrawn from the workforce. Id. At some point prior to the employer's filing of the suspension petition, the claimant applied for a disability retirement pension with his employer. Id. at 267 (Friedman, J., concurring). [The c]laimant testified before the WCJ that "[h]e never returned to work after his retirement, although he intended to 'if they got my knee straightened out.' The claimant did not seek work after his retirement." Weis, 872 A.2d at 264 (Hr'g Tr. citations omitted). Relying on Henderson, this Court stated that, where a claimant retires, an employer does not have to show the availability of suitable work in a suspension proceeding as it ...