The claimant's failure to seek employment does not establish voluntary retirement from the workforce so as to warrant suspension of benefits.

The claimant sustained a work-related knee injury and then underwent knee replacement surgery, after which she was limited to performing only full-time sedentary work. The claimant initially looked for suitable work and applied for every job lead, but she was not hired. For a period of two years, the claimant did not apply for work because of her negative feelings about the job-seeking process. The employer used this testimony to file a suspension petition, contending that she had voluntarily removed herself from the workforce. After the employer filed the petition, the claimant applied for work but was not hired. The workers' compensation judge denied the petition, finding that the claimant had not voluntarily removed herself from the workplace. On appeal, the Appeal Board reversed, finding that the failure to apply for work based solely on negative feelings about the job-seeking process established withdrawal from the workforce. The Commonwealth Court rejected the Appeal Board's decision and in doing so emphasized that the Kachinski standard for obtaining a suspension of benefits requiring proof of the availability of suitable work by referral to a then open job must be met unless the employer can prove that the claimant has voluntarily retired from the workforce. The employer's burden is met only upon proof of either undisputed retirement, acceptance of a retirement pension or acceptance of pension and refusal of suitable work. At that point, the court held, a claimant can still maintain disability benefits by showing that they are seeking employment after retirement or that they were forced into retirement because of the work injury. In this case, the court was quick to note that the claimant's failure to look for work for two years was irrelevant since the employer did not meet its initial burden of showing voluntary retirement from the workforce. The court also noted that the claimant has no duty to seek work until the employer meets that burden. In a footnote, the court mentioned that the claimant's receipt of social security disability benefits is not evidence by itself that the work injury caused removal from the workforce.

Case Law Alert, 4th Qtr 2011