Opinion
No. 2100 C.D. 2013
06-05-2014
Butler Motor Transit/Coach USA, Petitioner v. Workers' Compensation Appeal Board (Smith), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Butler Motor Transit/Coach USA (Employer) petitions for review of an Order of the Workers' Compensation (WC) Appeal Board (Board) reversing a Decision of the Workers' Compensation Judge (WCJ) granting Employer's suspension petition. On appeal, Employer argues that the Board erred by determining that Harold Smith (Claimant) had not voluntarily removed himself from the workforce and by substituting its fact-finding for that of the WCJ. Discerning no error, we affirm.
Claimant was employed as a driver for Employer when he sustained work-related injuries to his knee and lower back on January 19, 2004. (WCJ's Decision, Findings of Fact (FOF) ¶ 4(a).) Claimant began receiving WC benefits pursuant to a notice of compensation payable. (Board Op. at 1.) Claimant returned to work for Employer in April 2004; however, in September 2004, he again stopped working due to his work-related injuries. (FOF ¶ 4(b).) On September 28, 2004, Claimant and Employer executed a supplemental agreement (2004 Supplemental Agreement) reinstating Claimant's total disability benefits because Claimant's disability recurred on September 17, 2004. (R.R. at 111a.) Thereafter, Claimant applied for and was granted social security disability benefits effective January 19, 2004. (FOF ¶ 4(c); Board Op. at 1.) When Claimant turned 65 years and 10 months old, his social security benefits automatically converted to social security old age benefits. (FOF ¶ 4(c).) As a result, Claimant's WC benefits were reduced by 50 percent. (FOF ¶ 4(c).) Claimant has not worked anywhere for wages since September 2004. (FOF ¶ 4(b).)
Employer filed a suspension petition on or about May 21, 2010 seeking to suspend Claimant's benefits on the grounds that he had voluntarily withdrawn from the workforce on May 18, 2010. Claimant filed a timely answer denying the material allegations contained in the suspension petition. Hearings before the WCJ ensued.
Based on Claimant's testimony and the documentary evidence presented, the WCJ made, in pertinent part, the following findings of fact:
4(d) [Claimant] has not applied for Unemployment Compensation benefits at any time and his looking for work consists of looking at the papers but he did not think there was any work out there that fits his experience. He also did not feel that he could work. He had never applied for any application for any jobs or haven't (sic) called any of the entities he sees in the classified ads about job openings. He had not made any other efforts to try and get back into the [workforce]. (Hearing transcript, pages 17-18)(FOF ¶¶ 4(d)-4(g), 7-8.) The WCJ concluded that because Claimant voluntarily left the workforce, in order for his WC benefits to continue, he had to show that he was seeking employment after retirement or that he was forced into retirement because of his work-related injuries. (WCJ Decision, Conclusions of Law (COL) ¶ 2 (citing Southeastern Pennsylvania Transportation Authority v. Workmen's Compensation Appeal Board (Henderson), 669 A.2d 911 (Pa. 1995), and Day v. Workers' Compensation Appeal Board (City of Pittsburgh), 6 A.3d 633 (Pa. Cmwlth. 2010).) However, the WCJ concluded that Claimant failed to make these showings; therefore, Employer sustained its burden of proving that Claimant's WC benefits should be suspended. (COL ¶¶ 3-4.) Accordingly, the WCJ granted Employer's suspension petition.
4(e) [Claimant] does not believe that he is able to go back to any job whatsoever. (Hearing transcript, page 21)
4(f) On examination by his own counsel, claimant indicated that other than driving he has no other work experience and he did enjoy his job. (Hearing transcript, pages 26-27)
4(g) Claimant noted that there was no mandatory retirement age at the employer and that the employer never offered him any sort of retirement or disability pension or union membership. (Hearing transcript, pages 27-28) His employer never offered him a job nor asked [Claimant] to be interviewed by a vocational expert. If he had not been injured, he would be working today. (Hearing transcript, page 31)
. . . .
7. This Judge finds as fact that claimant has voluntarily withdrawn from the work place by virtue of his not looking for any work and his receipt of old age Social Security benefits, based upon the claimant's testimony and the other evidence of record. While claimant testified that he has not looked for work because he does not feel that he can do any type of work, he had not made any showing that he is totally disabled from the work place and he has stated unequivocally that he is not looking for any work nor has he made any applications or inquiries to any prospective employers since shortly after his becoming disabled in September of 2004, a period of over six and a half (6 ½) years from this date.
8. Since claimant has voluntarily withdrawn from the work place, his weekly disability compensation benefits should be suspended effective immediately.
Claimant appealed the WCJ's Decision to the Board. On appeal, Claimant argued that the WCJ erred in finding that he voluntarily withdrew from the workforce because he was not seeking employment and was receiving old age social security benefits. Upon review, the Board concluded that the WCJ erred. The Board stated that, in order to obtain a suspension of WC benefits based on a voluntary withdrawal from the workforce, an employer has the initial burden of establishing "that there is no dispute that the claimant retired, by the acceptance of a retirement pension, or the acceptance of a pension and refusal of suitable employment within his restrictions." (Board Op. at 2 (citing Keene v. Workers' Compensation Appeal Board (Ogden Corporation), 21 A.3d 243 (Pa. Cmwlth. 2011)).) The Board stated further that the receipt of old age social security benefits, by itself, does not establish that a claimant voluntarily removes himself from the workforce. (Board Op. at 2 (citing City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), 4 A.3d 1130 (Pa. Cmwlth. 2010) (Robinson I)).) The Board determined that "[w]hether a claimant has voluntarily withdrawn from the workforce is to be decided based on the totality of the circumstances." (Board Op. at 2 (citing Henderson).) Finally, the Board stated that if the employer establishes that the claimant voluntarily withdrew from the workforce, "the burden then shifts to the claimant to show that either he is looking for work or has been forced to withdraw from the entire workforce because of his work-related injury." (Board Op. at 2-3 (citing Keene).) Because Claimant disputed that he retired, he had not accepted a retirement pension, and he did not refuse suitable employment within his restrictions, the Board concluded that it was required to look to the totality of the circumstances. (Board Op. at 3.)
Vacated and remanded by, 81 A.3d 881 (Pa. 2013).
This Court's decision in Robinson I was affirmed by our Supreme Court. See City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), 67 A.3d 1194 (Pa. 2013) (Robinson II). The Supreme Court vacated and remanded this Court's decision in Keene for reconsideration in light of its decision in Robinson II.
The Board determined that the present appeal was analogous to Keene where this Court upheld the denial of the employer's suspension petition when the claimant was not receiving any retirement pension and we held that: (1) the employer could not rely upon the fact that the claimant was not seeking employment as proof that the claimant had voluntarily withdrawn from the workforce until the employer satisfied its burden of establishing a voluntary withdrawal; and (2) the claimant's receipt of social security disability was insufficient to show that the claimant had voluntarily withdrawn from the workforce. (Board Op. at 3.) The Board concluded, therefore, that the WCJ erred by relying upon the fact that Claimant was not seeking employment and was receiving old age social security benefits to find that Employer met its burden of showing that Claimant had voluntarily withdrawn from the workforce. (Board Op. at 3.) The Board noted further that Claimant was not released for work, he did not believe that he was capable of performing any job related duties, he had not been offered light duty employment, and he was not receiving a retirement pension. (Board Op. at 4.)
Accordingly, the Board held that the evidence showed that Claimant was receiving social security disability, which automatically converted to old age benefits, and Claimant was not receiving a retirement pension from Employer; therefore, there was insufficient evidence to establish that Claimant had voluntarily retired from the workforce. (Board Op. at 4 (citing Keene and Robinson I).) The Board held further that, because Employer did not produce medical evidence of a change in Claimant's medical condition and the availability of any work that Claimant was capable of performing, Employer was not entitled to a suspension of Claimant's WC benefits. (Board Op. at 5.) This appeal followed.
"This Court's scope of review is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether errors of law were made, or whether constitutional rights were violated." Peters Township School District v. Workers' Compensation Appeal Board (Anthony), 945 A.2d 805, 810 n.8 (Pa. Cmwlth. 2008).
In support of its appeal, Employer argues that the Board erred by substituting its finding that Claimant had not voluntarily removed himself from the workforce for the WCJ's finding that Claimant did, in fact, do so based on Claimant's failure to seek employment and his receipt of old age social security benefits. Employer asserts that the Board inexplicably did not cite or discuss our Supreme Court's recent decision in City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), 67 A.3d 1194 (Pa. 2013) (Robinson II), which sets forth the relevant inquiry for the fact finder in these types of cases. Employer argues that, based upon Robinson II, the WCJ is to consider all of the evidence presented to make a finding as to whether a claimant has voluntarily withdrawn from the workforce. Thus, Employer contends, the Board's reliance on Keene was misplaced. Based on Robinson II, Employer contends that the WCJ properly weighed all of the evidence, including Claimant's receipt of social security disability benefits and his own statements concerning his efforts to seek or not seek employment, and correctly found that Claimant had voluntarily withdrawn from the workforce. Employer argues further that, because the WCJ's finding is supported by substantial evidence, the WCJ's finding cannot be overturned on appeal and, by overturning this finding on appeal, the Board improperly reweighed the evidence and erroneously engaged in fact finding.
In Robinson II, the Supreme Court addressed the issue of whether this Court erred "by holding that, in a petition to suspend benefits based upon an alleged voluntary withdrawal from the workforce, the employer bears the burden of showing by the totality of the circumstances that the claimant has chosen not to return to the workforce[.]" Robinson II, 67 A.3d at 1200. Based upon an in-depth review of its prior decision in Henderson, the Supreme Court held that this Court did not impermissibly establish a new test. Id. at 1209. The Supreme Court stated that our "totality of the circumstances" test was "simply another way of saying that the factfinder must evaluate all of the relevant evidence in determining whether a worker has retired from the workforce." Id. The Supreme Court stated further that it necessarily followed that "when all of the evidence is in (including evidence from the claimant if a showing has been made of apparent voluntary withdrawal from the workforce) the employer . . . bears the ultimate burden of proving that the claimant has voluntarily removed himself or herself from the workforce." Id. The Supreme Court then specifically articulated the standard to be employed when an employer seeks to suspend a claimant's WC benefits on the basis that he or she has voluntarily withdrawn from the workforce:
We will take this opportunity to make clear the analytical paradigm that applies in cases involving an employer's petition to suspend or modify benefits premised upon the claimant's alleged voluntary withdrawal from the workforce, as evidenced only by acceptance of a pension. Where the employer challenges the entitlement to continuing compensation on grounds that the claimant has removed himself or herself from the general workforce by retiring, the employer has the burden of proving that the claimant has voluntarily left the workforce. There is no presumption of retirement arising from the fact that a claimant seeks or accepts a pension, much less a disability pension; rather, the worker's acceptance of a pension entitles the employer only to a permissive inference that the claimant has retired. Such an inference, if drawn, is not on its own sufficient evidence to establish that the worker has retired-the inference must be considered in the context of the totality of the circumstances. The factfinder must also evaluate all of the other relevant and credible evidence before concluding that the employer has carried its burden of proof.
If the employer produces sufficient evidence to support a finding that the claimant has voluntarily left the workforce, then the burden shifts to the claimant to show that there in fact has been a compensable loss of earning power. Conversely, if the employer fails to present sufficient evidence to show that the claimant has retired, then the employer must proceed as in any other case involving a proposed modification or suspension of benefits.
Our holding will not impose a prohibitive burden on employers, nor does it subject employers to the unreasonable task of proving the claimant's state of mind. Nor are we convinced that the dire consequences predicted by Employer—that claimants will impermissibly benefit by supplementing their retirements with workers' compensation benefits, and that the cost containment goal of the Act will be undermined-will result. If an employer is convinced that a claimant has retired, the employer may present evidence to establish that status. As the Commonwealth Court suggested, the employer may do so by objective facts, including the claimant's receipt of a pension, the claimant's own statements relating to voluntary withdrawal from the workforce, and the claimant's efforts or non-efforts to seek employment.Id. at 1209-10. Accordingly, the factfinder must look at all the evidence presented on the issue regarding whether a claimant has voluntarily withdrawn from the workforce and cannot rely on presumptions regarding the receipt of retirement or disability benefits.
Here, when the WCJ rendered his Decision, he did not have the benefit of the Supreme Court's clarification of the burden of proof. Normally, this would require that we vacate and remand for an adjudication applying the clarified burden of proof; however, while the Board did not specifically address the Supreme Court's clarification of the burden of proof as set forth in Robinson II, the Board recognized that it was required to look to the "totality of the circumstances." Therefore, the Board reviewed all the evidence in the record to determine if sufficient evidence existed to support the WCJ's finding that Claimant had voluntarily withdrawn from the workforce. Thus, the Board's reliance on this Court's decision in Keene, which was vacated and remanded by the Supreme Court for reconsideration in light of Robinson II, was harmless error.
The relevant evidence in the record that the WCJ accepted to find that Claimant had voluntarily withdrawn from the workforce was Claimant's receipt of social security disability benefits that had been automatically converted to old age benefits and Claimant's testimony relating to his voluntary withdrawal from the workforce and his efforts or non-efforts to seek employment. As stated previously, based on the Board's review of this evidence, the Board concluded that the WCJ erred by finding that because: (1) Claimant was receiving old age social security benefits; (2) Claimant had not looked for work in the 6½ years since becoming disabled; and (3) Claimant had not proven that he was totally disabled from the workforce, there was sufficient evidence showing that Claimant voluntarily withdrew from the workforce. The Board concluded further that the WCJ erred by placing the burden on Claimant to show that he was totally disabled rather than on Employer to show, through medical evidence, that Claimant's condition had changed and he was capable of performing either light or full duty work. Upon review, we hold that the Board's decision is correct.
Because there is no presumption that a claimant has withdrawn from the workforce simply because he is receiving retirement or disability benefits, Claimant's receipt of old age social security benefits, alone, is insufficient to support a finding that Claimant had retired. As found by the WCJ, Claimant did not apply for old age social security benefits; rather, Claimant's receipt of old age social security benefits was automatic by operation of law due to his age. (FOF ¶ 4(c).) In addition, Claimant was neither offered nor is he receiving a retirement pension from Employer. (FOF ¶ 4(g).) Moreover, Claimant's testimony does not support a finding that he has withdrawn from the workforce. The WCJ specifically found that Claimant did not seek employment because he believed he was not capable of performing any work and that, if he had not been injured, Claimant would be presently working.
Claimant testified as follows:
Q. Since September of 2004, have you looked for work for any entity?
A. Well, I've looked --- I read the papers a lot, but I don't think there's any work out there that fits my experience. And since I've been disabled, there is no way that I can work.
. . . .
Q. What the Judge indicated was that at one time you said that you were looking in the paper. When you say you were looking in the paper, do you mean you were looking at the classified ads?
A. I look at all the whole paper. I glance over the classified ads, yeah.
Q. When you glance over the classified ads, are you looking to see if there's (sic) jobs that are there that you want to apply for or is it something that you're just looking just to see --- ?
A. No. I just look at various ---. In my condition, there wouldn't make any sense for me to do --- to look for any kind of work to do because I'm disabled not to work --- from work.
. . . .
Q. Mr. Smith, if you were not injured, would you be working today?
A. I'd be working today if I wasn't injured.
Q. Why is that?
A. Well, the economy calls for us to work, and I enjoy working, you know. . . . This disability has caused me a lot of hardship on my family. . . a person shouldn't have to go through if they're (sic) able to work. . . . At this time, I'm not able to work after my injury.
Finally, as pointed out by the Board, there is no evidence that Claimant has ever been released to return to work or was offered light-duty employment by Employer or through a vocational expert based on his earning power. This is reflected in the WCJ's finding that Employer neither offered Claimant a job nor was Claimant asked to be interviewed by a vocational expert. (FOF ¶ 4(g).) As such, Claimant has remained totally disabled since the execution of the 2004 Supplemental Agreement; therefore, he was under no obligation to seek employment absent a notice of ability to return to work based on a change in his condition. In other words, there is no evidence that Claimant possessed residual earning power and Claimant did not testify that he was capable of performing some level of work. (FOF ¶¶ 4(g), 7.) Therefore, the Board did not err by concluding that there is insufficient evidence to support the WCJ's finding that Claimant had voluntarily withdrawn from the workforce.
Accordingly, for the foregoing reasons, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, June 5, 2014, the Order of the Workers' Compensation Appeal Board entered in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge
(Hr'g Tr., February 3, 2011, at 16-18, 31-32, R.R. at 86a-88a, 101a-02a.)