Claimant’s receipt of Social Security Disability and pension benefits were partly based on his work injury and a suspension of his benefits based on his voluntary removal from the workforce was improper.

The claimant sustained a work injury to his right knee in August 2014. He had been a union member since 1985. The employer filed a termination petition, alleging the claimant was fully recovered from his work injury. Thereafter, the employer filed a suspension petition, asserting the claimant voluntarily left the workforce by accepting a pension from the union and receiving Social Security Disability (SSD) benefits for conditions that went beyond his work-related injury.

In support of the suspension petition, the employer submitted a pension packet consisting of paperwork the claimant submitted to the union with his pension benefit application and a copy of the claimant’s SSD application, decision and award letter. The application for SSD benefits listed herniated discs in the back and neck, a right knee surgery, a left knee condition, arthritis of the ankles, numbness in the left upper extremity, high blood pressure and high cholesterol.

The Workers’ Compensation Judge dismissed the termination petition, finding that the claimant had not fully recovered from his work injury. However, the judge granted the suspension petition, determining that the claimant voluntarily left the workforce by retiring. The judge noted the claimant had chosen not to return to work and that his testimony showed he had voluntarily retired based upon his receipt of the union pension and SSD benefits and his failure to search for jobs. The claimant appealed to the Appeal Board, which reversed. According to the Board, acceptance of the pension creates only a permissive inference of retirement, not a presumption. The employer appealed to the Commonwealth Court.

The Commonwealth Court affirmed the Board. According to the court, the claimant’s receipt of SSD benefits was based, in part, on his work-related injury and lack of transferable skills, preventing him from working. Thus, the receipt of SSD benefits suggested the claimant’s work injury forced him out of the labor market. As for the pension, the court noted the claimant applied for it three years after the work injury occurred, the very injury that the Workers’ Compensation Judge found the claimant could not perform due to his injury.

_{What’s Hot in Workers’ Comp, Vol. 26, No. 9, September 2022 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2022 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}