Opinion
No. 1713 C.D. 2011
06-17-2014
Jean Fitchett, Petitioner v. Workers' Compensation Appeal Board (School District of Philadelphia), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
This case is before us on remand for reconsideration in light of the Supreme Court's decision in City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), 67 A.3d 1194 (Pa. 2013) (Robinson II), solely on the issue of whether the Workers' Compensation Judge (WCJ) assigned the appropriate evidentiary weight to Jean Fitchett's (Claimant) receipt of Social Security and pension benefits in determining she voluntarily retired from the workforce.
On remand, Claimant asks this Court to reverse the WCJ's grant of a suspension where the WCJ applied the incorrect standard of proof, which improperly shifted the ultimate burden of proof to Claimant. Alternatively, Claimant requests that we vacate the orders of Workers' Compensation Appeal Board (Board) and the WCJ, with instructions for a remand to the WCJ for further consideration of whether a suspension was appropriate where the WCJ applied a rebuttable presumption standard of proof, which the Robinson II Court rejected in favor of a permissive inference.
In our prior opinion in this case, Fitchett v. Workers' Compensation Appeal Board (School District of Philadelphia), 67 A.3d 80 (Pa. Cmwlth.), vacated and remanded, 80 A.3d 773 (Pa. 2013) (Fitchett I), we explained that Claimant sustained work-related injuries in February 2001 when two students attacked her in the course of her employment as an instructional aide for the Philadelphia School District (Employer). Claimant began receiving benefits pursuant to a notice of compensation payable (NCP), which described her injuries as a lumbar sprain, and injuries to the left shoulder, left thumb and neck.
Thereafter, in 2003, Employer issued Claimant a notice of suspension for failure to return a verification of employment form allegedly mailed to her in July 2003. In October 2003, Employer filed a termination petition alleging Claimant fully recovered from her work-related injuries in September 2003.
In response, Claimant filed a penalty petition alleging Employer unilaterally suspended Claimant's benefits in violation of the Workers' Compensation Act (Act). In May 2004, following the WCJ's denial of Employer's request for supersedeas of Claimant's weekly benefits, Claimant filed a second penalty petition contending Employer failed to pay attorney fees in accordance with the order denying its supersedeas request.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1 - 1041.4, 2501-2708. --------
Ultimately, the WCJ circulated a decision and order that addressed Claimant's penalty petitions and Employer's termination petitions.
Of greatest significance here, the WCJ also suspended Claimant's entitlement to indemnity benefits as of June 4, 2005, on the basis that Employer established Claimant retired and voluntarily withdrew from the labor market as of June 5, 2005. WCJ Op., 5/18/09, Finding of Fact No. 13(d); Conclusion of Law No. 3. However, in reaching his decision, the WCJ reasoned:
To allow continuing receipt of disability compensation following retirement, an employee must establish she is seeking employment after retirement, or that she was forced into retirement from the work-related injury ([Se. Pa. Transp. Auth. v. Workmen's Comp. Appeal Bd. (Henderson), 669 A.2d 911 (Pa. 1995]). Where a work injured claimant '... accepts a pension ... the claimant is presumed to have left the work force entitling an employer to a suspension of benefits ...' ([Pa. State Univ. v. Workers' Comp. Appeal Board (Hensal), 948 A.2d 907, 910 (Pa. Cmwlth. 2008]). To defeat a suspension of benefits, an employee has the burden to establish she was forced to retire from the whole labor market, not just the pre-injury job ([Cnty. of Allegheny v. Workers' Comp. Appeal Bd. (Weis), 872 A.2d 263, 265 (Pa. Cmwlth. 2005)]).WCJ's Op., 5/18/09, at 11-12 (emphasis by bolding added). In Fitchett I, this Court answered the procedural question of whether the retirement-based suspension was properly decided by the WCJ.
The current remand raises a different question: whether the WCJ's substantive resolution of the retirement issue comports with our Supreme Court's recently clarified analytical paradigm. In light of our Supreme Court's decision in Robinson II, we must conclude that the WCJ erred in referring to a presumption.
In Robinson II, the Supreme Court established the proper framework for addressing a request for suspension of benefits based upon a claimant's voluntary withdrawal from the workforce. To that end, the Court stated (with emphasis added):
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 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 to only 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 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.Robinson II, 67 A.3d at 1209. As to the nature of the burden imposed on employers, the Supreme Court stated (with emphasis added):
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 [the 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 1210.
In the present case, the WCJ, in reviewing the evidence relevant to the issue of whether Claimant retired from the workforce, noted as follows:
[Employer] contends [Claimant] by her own testimony retired and withdrew from the work force, with any wage loss thereafter, unrelated to work injuries. A suspension of weekly benefits was requested.
The evidence at bar establishes [Claimant] applied for and receives her [Employer provided] pension and age-related Social Security benefits (N.T., November 2, 2004, p. 59-61), acknowledged to Dr. Cohen she retired, indicated on an intake sheet of Dr. Puglisi that she retired (N.T. exhibit E-3, p. 11), acknowledged on December 30, 2008 that she 'retired' (N.T. December 30, 2008, p. 29) and has not applied for any position in the local economy nor looked for any type of work.
* * * *
[Claimant] contends she only applied for Social Security retirement benefits and her [Employer provided] pension as 'I was being impoverished by lack of funds
coming in ....' (N.T., November 2, 2004, p. 59). She elaborated as follows:
'What I mean by retired is I had to leave [Employer]. And in order to leave and still be able to live, take care of myself, I had to accept their retirement. Although they did tell me I could come back within a certain time. But surgery happened and different things and I just haven't been able to. I have a work ethic. My mother worked until she was 72 for the Board of Education and I worked two jobs ....'
Q. And if you didn't have this injury, would you be working today?
A. Sure, I would. Unless they told me I couldn't.
(N.T., December 30, 2008, p.31-32)
This testimony sounds good but on close inspection falls apart. Initially, [Claimant] applied for her [Employer] pension in April, 2002, at a time when she was still receiving weekly indemnity benefits from an NCP issued on March 26, 2001 (N.T., November 2, 2004, p. 61-62). The indemnity benefits replaced her wages. The 'surgery' [Claimant] refers to is her right shoulder, which was not recognized nor found work-related. Her definition of 'retirement' is her inability to perform pre-injury duty at [Employer], not the entire labor force. However, it is difficult to credibly accept that her actual recognized work injury (chronic strains/sprains) precludes return to the entire labor force. Once [Employer] reinstated weekly indemnity benefits in June, 2005, her monetary issues and lack of funds were essentially resolved, and [Claimant] still did not look for work ... or apply for any position. While Dr. Cohen deemed her totally disabled (N.T., exhibit C-3, p. 53), his opinion is based on physical conditions not accepted by [Employer] or this Court. To this Court, [Claimant] was essentially retired from the entire labor force as of June 4,
2005, the day after benefits were reinstated. One would believe the period prior thereto involved Claimant's legitimate attempts at rehabilitation of her work injury and to contest the suspension of her benefits. [Employer] is hard-pressed to argue that benefits of [Claimant] should be suspended due to retirement at a point in time she was not receiving indemnity. As of June 4, 2005, [Claimant] was receiving her pension, Social Security and indemnity benefits and not looking for work.WCJ's Op., 5/18/09, at 11-12 (emphasis by underline added).
Nevertheless, in light of the WCJ's reference in his decision to a presumption arising from receipt of a pension, we believe Robinson II necessitates a remand for reconsideration of the evidence in accord with the proper standard of proof and analytical framework. In particular, Employer bears the burden of establishing Claimant's voluntary retirement from the workforce. Id. Moreover, Claimant's acceptance of her Social Security and retirement pension benefits may give rise to a permissive inference of retirement; however, such an inference, by itself, cannot establish Claimant's retirement from the workforce. Rather, the WCJ must determine, based on an evaluation of all relevant and credible evidence in the existing record, whether, in light of the totality of the circumstances, Employer met its burden of proving Claimant voluntarily retired and withdrew from the workforce. Id. This is the same approach recently used by this Court in Turner v. Workers' Compensation Appeal Board (City of Pittsburgh), 78 A.3d 1224 (Pa. Cmwlth. 2013).
Therefore, in accord with the foregoing, we vacate the Board's order and remand, with instructions to the Board, to further remand this case to the WCJ for reconsideration of the existing record of Employer's request for suspension based on Claimant's voluntary retirement consistent with Supreme Court's analytical paradigm in Robinson II.
/s/_________
ROBERT SIMPSON, Judge President Judge Pellegrini concurs in the result only. ORDER
AND NOW, this 17th day of June, 2014, the order of the Workers' Compensation Appeal Board is VACATED and this case is REMANDED to the Workers' Compensation Appeal Board, with instructions that the case be remanded to the Workers' Compensation Judge for further proceedings consistent with the foregoing opinion.
Jurisdiction is relinquished.
/s/_________
ROBERT SIMPSON, Judge