Suspension of benefits based upon claimant's withdrawal from workforce requires proof of intent to not return to work. Application for disability pension and failure to look for work is insufficient to proof of intent.

The claimant, a firefighter who sustained a work-related torn rotator cuff, an aggravation of lumbar disc disease and a psychological adjustment disorder, was fired from his job when he failed to disclose that he was earning wages in construction while collecting disability compensation. The employer filed a suspension petition on the basis that the claimant had removed himself from the workforce, citing his application for a disability pension, which was denied due to his firing and his lack of effort to fine a job.

The judge granted the employer's petition on this basis. The Board reversed, and the Commonwealth Court agreed. The court emphasized that it is the employer's burden of proving that a claimant has withdrawn from the workforce. To meet this burden there is no presumption of such withdrawal when a claimant applies for or collects a disability pension, whereas there is a presumption when a claimant accepts a retirement pension. The employer failed to meet, according to the court, the difficult burden of proving intent to withdraw from the workforce, which must be established before any consideration of the failure to look for another job. In this case, the court held that the employer did not show that, under the totality of circumstances, the claimant had withdrawn from the workforce.

Case Law Alert - 3rd Qtr 2012