Voluntary Removal from the Workforce:
Commonwealth Court Uses Common-Sense Approach to Reach Employer-Friendly Results

by Lisa K. Lane, Esquire

The Commonwealth Court rang in 2006 with two cases decided in January which provide Employers relief from showing earning capacity or job availability in cases where claimants have voluntarily withdrawn themselves from the workforce.

Voluntary Retirement

In Hepler v. WCAB (Penn Champ/Bissel, Inc) (decided January 11, 2006), the Court held that the burden in retirement cases is upon the claimant to show that the claimant has not voluntarily withdrawn from the labor force. Relying on its decision in County of Allegheny (Department of Public Works) v. WCAB (Weis), 872 A.2d 263 (Pa. Cmwlth. Ct 2005), the Court held that it was Claimant’s burden to prove that he was forced out of “the entire labor market” by his work injury.

In Hepler, the Employer filed a Modification Petition alleging that claimant had voluntarily withdrawn from the workforce through his retirement. The claimant did not dispute that the claimant’s treating physician had released him to sedentary work. Claimant admitted that he had not searched for any employment since he had left his employment with his pre-injury employer.

Although Claimant contended that he was terminated, the WCJ rejected the claimant’s testimony to that effect. The WCJ denied the Suspension Petition, however, finding that the claimant’s work injury was a “major factor” in his retirement. The WCAB reversed, holding that the claimant failed to meet his burden of proof that he was forced out of the labor market in its entirety.

The Commonwealth Court affirmed the WCAB decision, concluding that claimant had not met his burden of proof that he had removed himself from the entire labor market.

Moving Abroad

In Blong v. WCAB (Fluid Containment, Inserco Insurance Service and Gallagher Bassett Services) (Decided January 19, 2006), the Court held that a suspension of benefits was proper, as Claimant had removed himself from the workforce by moving to New Zealand.

Claimant sustained an injury in 1998, and moved to New Zealand in 2003. Employer filed a Petition to Terminate or Suspend, alleging that the claimant had voluntarily removed himself from the workforce by leaving Pennsylvania and moving to New Zealand. The claimant’s answer admitted the move abroad, but denied that the claimant had removed himself from the workforce.

Under Section 306 (b)(2) of the Act, an Employer is required to prove that the claimant can perform jobs in the claimant’s “usual employment area.” The Act further provides that if the claimant does not live in Pennsylvania, earning capacity should be established in the usual employment area of the site of the injury. In this case, Employer successfully argued that presentation of evidence regarding earning power in the usual employment area of the injury would be “irrelevant and fruitless.” The WCJ suspended benefits, finding that the claimant had voluntarily removed himself from the workforce.

Both the Board and the Commonwealth Court upheld the WCJ’s suspension of benefits. The Court found that it would be “a futile undertaking” for the Employer to find suitable jobs for the claimant in the Commonwealth, since the claimant offered no evidence that he intended to move back to the United States should he learn of suitable employment. The Court likened the claimant’s removal from the workforce to cases where the removal from the workforce is caused by retirement or incarceration.

Analysis

The decisions mark an important distinction from normal practice where an Employer has the burden of proof of removal from the labor market. In both cases, the suspension of the benefits was caused by a failure of the claimant to prove he did not remove himself from the workforce. In Hepler, the Court was persuaded by claimant’s failure to look for work following retirement. In Blong, the Court noted the claimant’s failure to prove he would return to the work force in the United States.

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