On Petition to Determine Additional Compensation Due, the Board finds that claimant is not entitled to either partial or total disability benefits where the evidence shows he abandoned his job, thereby voluntarily removing himself from the labor market.

The claimant suffered a work-related left knee injury on January 12, 2018, while working for the employer as a lead man in its steel and iron construction business. The employer paid for medical treatment, including left knee surgery the claimant underwent on April 10, 2019. However, the employer did not pay any wage loss benefits. The case was before the Board on the claimant’s DACD petition, seeking payment for partial disability from April 1, 2018, to April 9, 2019; ongoing partial disability since July 20, 2019; and a period of total disability benefits from April 10, 2019, through July 19, 2019.

The only medical evidence presented was the deposition of Dr. Pilkington, the claimant’s treating surgeon, who performed a left knee arthroscopy of the claimant on April 10, 2019, that included removing part of a torn meniscus and stabilizing torn cartilage. Dr. Pilkington failed to issue physician’s reports regarding the claimant’s disability status, but he did testify that from the time of the work injury up until the surgery, the claimant was able to perform sedentary-duty work and that after the surgery, the claimant had a period of total disability for approximately three months and, thereafter, was capable of working in a sedentary- to light-duty capacity.

The claimant, who is 61 years old, testified that in March 2018, which was after the work injury but prior to the knee surgery, he received a letter from the employer firing him for missing work. He conceded thereafter he did not apply for any work on his own. The claimant testified that he did not believe he could work in the steel industry or do any work at all, even at a desk, because he was in too much pain. The employer presented evidence from its Human Resources Director that they never received any “no work” notes or restrictions, other than one note from a Dr. Helou a few days after the work injury. The Human Resources Director further testified that the claimant last worked on March 8, 2018. He simply stopped showing up for work, and efforts to contact the claimant were unsuccessful. The claimant was sent a letter from the Human Resources Director on March 30, 2018, terminating his employment because he had not shown up for work, called out sick or supplied any disability notes.

The Board framed the issue as whether the claimant was entitled to disability benefits or whether he had voluntarily removed himself from the workforce. The Board concluded that he had not met his burden of proof and was, therefore, not entitled to either total or partial disability benefits. In assessing whether the claimant had voluntarily removed himself from the workforce, the Board noted that the absence of a job search by the claimant is an appropriate factor to consider, but it is not dispositive as a matter of law since each case is fact specific.

The Board noted that the claimant had abandoned his job with the employer, did not thereafter look for alternate employment and, being 61 years old, was of retirement age. The Board concluded that the claimant was physically capable of doing his job with the employer and that he abandoned the job before any restrictions were imposed on him by any of his treating doctors. The reasoning of the Board was that the claimant had failed to comply with his primary burden to make reasonable efforts to secure suitable employment. The claimant’s removal from the workforce was not because of the work injury, because, even before and after abandoning his job with the employer, he was physically capable of working yet had made no reasonable efforts to find another job and gave no reasonable explanation as to why he did not do so. Given this evidence, the Board concluded that the claimant’s choice to withdraw from the workforce was for personal reasons rather than due to the work injury. Since the claimant had voluntarily removed himself from the workforce prior to his knee surgery, the Board found that he was not entitled to any wage loss benefits, including total or partial disability.

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