HAS THE SUPREME COURT PUT THE BRAKES ON WEIS AND HENDERSON CASES?
As many readers know, the hot petition among our billable hours starved defense bar brethren is a Petition to Suspend Compensation alleging that the Claimant has voluntarily left the labor market. Judicial support for the position is found in a Supreme Court case, SEPTA v. WCAB (Henderson), 543 Pa. 74, 669 A.2d 911 (1995) and a Commonwealth Court case, County of Allegheny v. WCAB (Weis), 872 A.2d 263 (Pa. Cmwlth. 2005). In Henderson, the Supreme Court found as follows:
"It is clear that disability benefits must be suspended when a Claimant voluntarily leaves a labor market upon retiring. The mere possibility that a retired worker may, at some time, seek employment does not transform the voluntary retirement from the labor market into a continuing compensable disability. An employer should not be required to show that a claimant has no intention of continuing to work; such a burden of proof would be prohibitive. For disability compensation to continue following retirement, a claimant must show that he is seeking employment after retirement or that he was forced into retirement because of his work-related injury."
SEPTA v. WCAB (Henderson), 543 Pa. 74, 79, 669 A.2d 911, 913 (1995)
Therefore, the claimant had to look for work post-retirement or must meet a substantial medical burden that he or she was forced into retirement. Subsequent decisions suggest that the burden is to show that the claimant is unable to do any work.
A recent unreported decision of the Commonwealth Court followed Henderson and Weis. In ANNA GRAY v. WCAB (Philadelphia Housing Authority), 1275 C.D. 2007, the Court, per Judge Leadbetter, sustained the finding by the Workers' Compensation Judge and the WCAB suspending Claimant's Workers' Compensation benefits as she had voluntarily left the labor market. In Gray, the Claimant was injured January 8, 2004 and returned to work at modified-duty on February 23, 2004. She continued to work until October 6, 2005, when she retired. Claimant sought reinstatement of benefits, alleging that she was forced into retirement by the work-related injury. Claimant specifically testified she retired because of instructions from her doctor and the fact that the medication she took for her injury rendered her unable to perform her job. Specifically, the Workers' Compensation Judge did not find the Claimant's uncontroverted testimony credible.
The Commonwealth Court found that the Workers' Compensation Judge was not required to accept uncontroverted testimony. Judge Leadbetter claimed that the burden lay with the Claimant to establish that her retirement was caused by her work injury and concluded she failed to convince the Workers' Compensation Judge as such.
In what can only be described as a very surprising turn of events, the Supreme Court reversed in a per curium decision found at 209 Pa. LEXIS 99. The Court reversed and remanded, stating as follows:
"The matter is hereby remanded to the Commonwealth Court for remand to the Workers' Compensation Appeal Board for remand to the Workers' Judge for reinstatement of Petitioner's benefits in light of the competent, uncontroverted evidence presented by Petitioner that her retirement from the work force was involuntary and her increased debilitating shoulder pain prevented her from continuing to work."
While practitioners in the area can only wish that the Court had addressed the issues of Henderson and Weis in a full-blown opinion, this Decision is certainly good news for claimants. This Decision should allow claimants to argue that they can meet the burden of proof that they retired for reasons related to the injury on the basis of their own testimony without more. Certainly, if a claimant's physician has instructed the claimant to retire, such testimony would dovetail nicely with the testimony of the claimant.
Practitioners from both sides will argue as to whether this per curium Decision is a step back from the prior case law. Claimants' counsel have long argued that a claimant should not have a burden of proof in a petition filed by a defendant. Case law that has developed in this area has placed such a burden on a claimant and allows a defendant to make a mere allegation. While the Court does not appear to have retreated from this position, arguably, the claimant can establish such a burden with his or her testimony alone.
In a previous column, this author had suggested that claimant's counsel should aggressively defend voluntary retirement petitions. The author suggested that defendants may be over-reaching with the plethora of such petitions being filed. Perhaps the Gray case will represent a stemming of the tide.
