In 2005 the Commonwealth Court held that an employee collecting a pension is presumed to have withdrawn from the work force. Under this rule, the court held that it was ” the responsibility of the claimant to rebut this presumption with evidence that he has continued to work or with evidence that he has been forced out of the entire job market by the work injury.” See, County of Allegheny v. WCAB(Weis), 872 A.2d 263 (Pa. Commw. 2005). The only way a claimant could avoid a suspension of benefits was by showing that he or she was looking for work after retirement.
For years claimant’s counsel have argued that the 2005 holding was violative of both PA Supreme Court precedent and the 1996 amendments to the PA Workers’ Compensation Act. Regarding precedent, we have argued that the PA Supreme Court has placed the burden on employers to show the availability of modified work to workers with continuing disabilities. Regarding the Act, the reforms of 1996 have already addressed how a claimant’s TTD benefits are to be handled when he or she begins to draw a pension. The Act now allows an employer/carrier to receive a set-off for pension benefits an injured worker receives.
The Commonwealth Court in the case of City of Pittsburgh v. WCAB(Robinson), _A.2d (Pa. Commw 2010) has established a new test. Under the court’s new case, “In order to show that efforts to return a claimant to the workforce would be unavailing because the claimant has retired, an employer must show, by the totality of the circumstances, the the claimant has chosen not to return to the workforce. Circumstances that could support a holding that the claimant retired include: (1) where there is no dispute that the claimant retired; (2) the claimant’s acceptance of a retirement pension; or (3) the claimant’s acceptance of a pension and refusal of suitable employment within her restrictions….”
It appears that with this ruling it may be easier for those injured workers who have decided to accept a pension have not removed themselves from the workforce and should continue to receive their ongoing disability benefits.