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Frances Keene v. Workers' Compensation Appeal Board (Ogden Corporation

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


May 19, 2011

FRANCES KEENE, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (OGDEN CORPORATION), RESPONDENT

The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge

Argued: April 4, 2011

BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN

Frances Keene (Claimant) petitions for review of that portion of the June 6, 2010, order of the Workers' Compensation Appeal Board (WCAB), which reversed the decision of the workers' compensation judge (WCJ) to deny Ogden Corporation's (Employer) suspension petition. We reverse.

In 1989, Claimant sustained a work-related injury to her right knee when she slipped on the step of an airport passenger shuttle she was operating for Employer. Claimant has undergone knee replacement surgery, has reached maximum medical improvement and is able to perform only full-time sedentary work. She has a high school education and no additional training, education, or experience operating a cash register or computer.

Following her knee surgery, Claimant began looking in the newspaper for suitable work. Claimant received leads on jobs and applied for every one, but she was not hired. Claimant later applied for jobs with several rental car agencies and Wal-Mart, but she was not hired. She continued to search the newspaper for work and began searching for possible positions on the Comcast job search website.

On October 9, 2007, Employer filed a suspension petition alleging that Claimant has voluntarily removed herself from the work force. After Employer filed the petition, Claimant applied for work as a driver for Budget and Avis rental car companies, but she was not hired.

Employer's suspension petition was assigned to a WCJ, who held hearings on the matter. Claimant testified in opposition to the petition regarding her attempts to obtain employment within her physical capabilities, education, training and experience. Claimant also testified that she is not receiving a pension and has never submitted a retirement statement to Employer, but she does receive social security disability benefits.*fn1 After considering the evidence, the WCJ accepted Claimant's testimony that she has been actively seeking employment and found that Claimant has not voluntarily removed herself from the workforce. Thus, the WCJ denied Employer's suspension petition.

Employer appealed to the WCAB, arguing that the WCJ erred in finding that Claimant has not voluntarily removed herself from the workforce. The WCAB agreed and reversed. In doing so, the WCAB relied upon Claimant's testimony that she did not apply for work for two years because it was very depressing. "Claimant's admitted failure to make any effort to apply for work for two years based solely on her negative feelings about the job seeking process establishes that she withdrew from the workforce by choice . . . ." (WCAB Decision, 6/29/10, at 4-5.) Thus, in effect, the WCAB granted Employer's suspension petition.*fn2 Claimant now petitions this court for review.*fn3

Claimant argues that the WCAB erred in concluding that her failure to look for work during a two-year period establishes that Claimant voluntarily removed herself from the workforce. We agree.

Pursuant to Section 306(b)(2) of the Workers' Compensation Act (Act)*fn4 and Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987), an employer seeking to suspend a claimant's workers' compensation benefits 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.

Id., at 252, 532 A.2d at 380 (emphasis added).

However, an employer is not required to prove the availability of suitable work when the employer proves by a totality of the circumstances that the claimant has voluntarily retired from the workforce. SEPTA v. Workmen's Compensation Appeal Board (Henderson), 543 Pa. 74, 79, 669 A.2d 911, 913 (1995); City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), 4 A.3d 1130, 1134 (Pa. Cmwlth. 2010), appeal granted, ___ Pa. ___, ___ A.3d ___ (Pa. No., 564 WAL 2010, filed April 6, 2011). Once an employer proves that a claimant has voluntarily retired, the claimant may continue to receive disability benefits if the claimant shows that: (1) she is seeking employment after retirement; or (2) she was forced into retirement because of the work injury. Henderson, 543 Pa. at 79, 669 A.2d at 913.

Here, the WCAB concluded that Claimant voluntarily withdrew from the workforce because she did not look for work for two years.*fn5 However, in a voluntary retirement case, a claimant's failure to seek employment is relevant only after the employer initially proves that the claimant has voluntarily retired from the workforce. An employer cannot rely on a claimant's failure to seek work to prove a voluntary retirement from the workforce because a claimant has no duty to seek work until the employer meets its initial burden to show a voluntary retirement. Until the employer proves a voluntary retirement, the employer has a duty to make job referrals to the claimant.*fn6

In Robinson, this court stated that an employer may meet its initial burden of proving a voluntary retirement by showing: (1) there is no dispute that the claimant is retired; (2) the claimant has accepted a retirement pension; or (3) the claimant has accepted a pension and refused suitable employment. Robinson, 4 A.3d at 1138. Here, Claimant has disputed that she is retired; Claimant has not accepted a retirement pension;*fn7 and Claimant has not refused suitable work. Thus, pursuant to Robinson, Employer has not met its initial burden.*fn8

Accordingly, we reverse.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frances Keene, Petitioner v. Workers' Compensation Appeal Board (Ogden Corporation), Respondent

No. 1421 C.D. 2010

ORDER

AND NOW, this 19th day of May, 2011, that portion of the order of the Workers' Compensation Appeal Board, dated June 6, 2010, which reversed the decision of the Workers' Compensation Judge to deny Ogden Corporation's suspension petition, is reversed.

ROCHELLE S. FRIEDMAN, Senior Judge


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