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Thomas Krushauskas v. Workers' Compensation Appeal

October 11, 2012

THOMAS KRUSHAUSKAS, PETITIONER
v.
WORKERS' COMPENSATION APPEAL : BOARD (GENERAL MOTORS), : RESPONDENT



The opinion of the court was delivered by: Bonnie Brigance Leadbetter, Judge

Submitted: February 15, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge*fn1 HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE LEADBETTER

Thomas Krushauskas (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board), which affirmed the decision of a Workers' Compensation Judge (WCJ). The WCJ denied Claimant's petition for penalties and suspended Claimant's workers' compensation benefits, determining that Claimant voluntarily retired from the workforce as of July 1, 2006. For the reasons that follow, we affirm.

Claimant sustained a work-related injury to his right shoulder on September 7, 2005, while working as a stock picker for General Motors (Employer). Employer issued a notice of compensation payable (NCP) and Claimant was paid benefits in the amount of $711.59 per week, commencing September 14, 2005. Reproduced Record (R.R.) at 98a.

On March 9, 2008, Claimant filed a penalty petition, alleging that Employer violated the provisions of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708, by unilaterally suspending Claimant's benefits as of July 1, 2006, without supplemental agreement or judicial order. Employer filed an answer on March 13, 2008, denying the material allegations of Claimant's penalty petition, and the matter was assigned to the WCJ.

The Board summarized the relevant evidence before the WCJ as follows:

In support of [his penalty petition], Claimant testified [before the WCJ on December 8, 2008,] that he injured his right shoulder on July 7, 2005, and continued to work until September 7, 2005. [Employer] acknowledged the work injury and began paying workers' compensation benefits as of September 14, 2005 [until approximately July 1, 2006 (R.R. at 10a)]. [On cross-examination, Claimant testified that] [i]n May 2006, Claimant, as a member of the UAW, was invited to attend Employer's Attrition Plan meeting. After that meeting Claimant signed Form A of the Special Attrition Plan, for receipt of a lump sum of $35,000.00[,*fn2 ] and Form B, which provided inter alia, that Claimant was not under duress, and was not disabled. Form B also contained a general release of all claims against [Employer], including disability pay and benefits.*fn3 Despite acknowledging the signing of [the Special Attrition Plan], Claimant insisted that it was not his intention to retire.

In defense, [Employer] introduced into evidence the Special Attrition Plan and presented the [deposition] testimony of its personnel director, Robert Cramer, and its administrative assistant[,] Stacey Pasceri.*fn4

Mr. Cramer testified that in the spring of 2006[,] Employer and the [UAW] negotiated a Special Attrition Program or Enhanced Retirement Program as an incentive to reduce the work force. All of the employees both working and non[-]working were invited to attend a meeting where the program was explained. No employee was forced to accept the program. Those who accepted it had 45 days thereafter to revoke acceptance. Claimant did not revoke his acceptance of the plan.

Ms. Pasceri's testimony corroborated Mr. Cramer's and established that Claimant had signed both [Form] A and [Form] B [of the Special Attrition Plan] as of May 11, 2006.

Id. at 155a-56a (citations omitted).

The WCJ denied Claimant's penalty petition. Although the WCJ found that Employer violated the Act by unilaterally suspending Claimant's benefits on July 1, 2006, without supplemental agreement, notification of benefit offset, or judicial order, the WCJ concluded that there is no award upon which penalties can be assessed because no past compensation is due Claimant. Specifically, the WCJ stated:

f. The Claimant testified that the Employer sent him a Supplemental Agreement on August 18, 2006, with correspondence signed by Cathy DuPrie. [See R.R. at 110a-11a.] The material indicated that if he signed the Supplemental Agreement that his Worker's [sic] Compensation Benefits would be terminated on August 10, 2006. The Claimant did not sign the document. Claimant has not received a workers' compensation check since July 1, 2006.

g. The Claimant did not receive a Notice of

Workers' Benefits Offset form from the Employer.

2. The Claimant has met his burden of proving that the Employer violated the terms of the [Act], by suspending the Claimant's compensation without a Supplemental Agreement or judicial order. However, as there is no sum of unpaid and past due compensation upon which penalties can be assessed, the Claimant's Petition for Penalties shall be denied.

Id. at 146a, 150a (WCJ's Finding of Fact No. 5 and Conclusion of Law No. 2).

In determining that no past compensation is due Claimant, the WCJ found that Claimant voluntarily retired from the workforce when he accepted Employer's Special Attrition Plan. Based upon that finding, the WCJ suspended Claimant's benefits retroactive to July 1, 2006, the date of Employer's unilateral suspension. The WCJ reasoned:

8. Upon review of the conflicting fact witness testimony presented the undersigned finds . . . the following [C]laimant's testimony not credible: The [C]laimant did not decide to retire. He does not feel that he is sufficiently recovered from the work injury to return to his pre-injury job. The Claimant would go back to work for the Employer if it was not for his shoulder. The Claimant retired because of his shoulder. Significant to this determination are the following factors: The

Claimant's testimony regarding the issue of whether he retired is inconsistent. The Claimant initially testified that he did not decide to retire. The Claimant subsequently acknowledged that he did retire. The Claimant's testimony regarding his physical condition and reasons for not returning to work is inconsistent with Paragraph five of Form B of the Employer's special attrition plan. The claimant acknowledged that Form B . . . of the Employer's special attrition plan sets forth that the acceptance is not under duress, and that he is able to work and suffers from no disability that would preclude him from doing his regularly assigned job. The balance of the Claimant's testimony is credible as it is un-contradicted and not inconsistent with the testimonies of the Employer's fact witnesses and the Employer's special attrition plan placed into evidence as Exhibit D-2. The testimonies of the Employer's fact witnesses are credible. Significant to this determination are the following factors: The Employer's fact witnesses testified in a logical and sequential fashion. The testimonies of the Employer's fact witnesses are consistent with Employer's special attrition plan.

9. The Claimant voluntarily retired from the work force. The Claimant received a vested pension and the sum of $35,000 as part of his voluntary retirement.

1. As the Claimant voluntarily retired from the work force, the Claimant's compensation shall be suspended as of July 1, 2006. Based on his voluntary retirement from the work force, the Claimant shall not be entitled to a reinstatement of ...


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