Advertising Disclosure Email Disclosure

The employer is not entitled to a suspension of the claimant's benefits when the employer did not provide sufficient evidence to show that under the totality of circumstances the claimant intended to terminate her career.

January 1, 2011
City of Pittsburgh and UPMC Benefit Management Services, Inc. v. WCAB (Robinson); 1770 C.D. 2009; filed September 22, 2010; by Judge Cohn Jubelirer

In this case, following the claimant's work injury, she returned to light-duty work for the employer. Thereafter, while traveling to an appointment for treatment for her work-related injury, the claimant was involved in a car accident and sustained multiple injuries, which the employer acknowledged. The claimant never returned to her light-duty job after the car accident, and, ultimately, the employer discontinued its transitional duty program. The claimant then applied for and received a disability pension from the employer. The employer filed a petition to suspend Benefits on the basis that the claimant voluntarily withdrew from the work force because she failed to look for suitable work within her restrictions after retiring. The claimant did perform a job search after the petition was filed but did not apply for any positions. The workers' compensation judge dismissed the employer's petition, concluding that the employer failed to meet their burden of showing the availability of suitable work for the claimant. The workers' compensation judge also determined that the employer forced the claimant into retirement by eliminating her modified duty position. The Appeal Board affirmed the decision of the workers' compensation judge. The Commonwealth Court also affirmed, holding that the employer did not provide sufficient evidence to show that the claimant intended to terminate her career. The Court noted that, although the claimant did not return to a modified duty position after her car accident, it was because the employer no longer made the position available to her. The claimant also looked for work, despite being unclear as to her abilities or restrictions, and despite the fact that the employer never offered her a position within her restrictions. The court agreed that the claimant would have been working if the employer had not eliminated the modified duty position and, therefore, the employer failed to meet its burden of showing that the claimant had retired. Because the employer failed to meet their burden of proof, the court held that the employer needed to show the availability of suitable work within the claimant's restrictions to sustain its burden on the suspension petition.

Case Law Alert - 1st Qtr 2011

Affiliated Attorney

Francis X. Wickersham
Shareholder
(610) 354-8263
fxwickersham@mdwcg.com
G. Jay Habas
Managing Attorney, Erie, PA Office
(814) 480-7802
gjhabas@mdwcg.com

Practice Areas

Before you send this email please note:

You are attempting to send email, through a link on our website, to an attorney of Marshall Dennehey Warner Coleman & Goggin or an employee in our firm. Please note that your email may not be treated as confidential and does not create an attorney-client relationship. You should not rely upon the transmission of an email through this website if you are seeking to enter into such a relationship. Until such time as we have agreed to represent you, no information in your email will be treated as confidential. Please contact us directly by telephone at 1.800.220.3308 if it is your intent to seek legal counsel with our firm or convey confidential information.

If it is still your intent to send this email, knowing that it may not be treated as confidential, you may accept our terms of agreement by pressing "OK". If you choose not to accept these terms of agreement you may navigate away from this page by pressing "Cancel."