City of Pittsburgh v. WCAB (Leonard); 650 C.D. 2010; filed April 20, 2011; by Judge Brobson

Acceptance of disability pension alone does not establish a presumption that the claimant voluntarily left the workforce so as to suspend benefits.

This claimant was not working and was receiving workers' compensation benefits when he obtained a service-connected disability pension from the employer. An independent medical evaluation then determined that the claimant was capable of performing light to medium-duty work, which generated a Notice of Ability to Return to Work. The employer filed a suspension petition on the basis that the claimant voluntarily removed himself from the workforce because he was capable of modified work and had not sought employment. The workers' compensation judge granted the petition, suspending benefits for the period of time between the date of the Notice of Ability to Return to Work, as at that point the claimant had restored work capabilities, and the date the claimant began a good faith effort to seek work within his restrictions. The Judge's determination was upheld by the Appeal Board and the Commonwealth Court. The court first restated that proof of job availability is not required where a claimant has voluntarily removed himself from the workforce through retirement but that the mere acceptance of a pension does not establish a presumption that a claimant has voluntarily left the workforce. The court agreed with the workers' compensation judge that it was not until the claimant had received the Notice of Ability to Return to work and then subsequently failed to adequately seek employment that there was sufficient indicia that he had voluntarily left the workforce so as to support a suspension of benefits. When the claimant subsequently made a good faith search for employment within his work capabilities, the period of suspension ended and benefits have to be reinstated.

Case Law Alert, 3rd Qtr 2011