Case Law Update

June 10, 2014

Voluntary Removal From the Workforce:

Keene v WCAB (Ogden Corp.), __ A.3d __, (Pa. Cmwlth., No. 1421 C.D. 2010, filed June 4, 2014)

 

The employer bears the burden of presenting evidence to establish that a claimant has retired, which includes the following: claimant’s receipt of a pension, the claimant’s own statements relating to a voluntary withdrawal from the workforce, and the claimant’s efforts or non-efforts to seek employment.

 

In this case, the claimant’s testimony confirmed that she was not receiving a pension from the employer nor had she applied for retirement. While she was receiving SSD benefits, this did not, by itself, prove a voluntary removal from the workforce. Claimant testified that she did not consider herself retired because she wanted to work, made efforts to look for work, but was not hired. The WCJ accepted the claimant’s testimony regarding her efforts to seek employment finding that her inability to secure work was due to her work injury, education, training, and experience. The WCJ went on to deny the suspension petition after finding that claimant had not voluntarily removed herself from the workforce.

 

The employer appealed arguing that the claimant had taken herself out of the workforce by not looking for work for two years. The WCAB agreed although this was not a finding made by the WCJ. After reviewing the record, the Commonwealth Court reversed the WCAB, finding that based on the totality of the circumstances, the employer had not met its burden of proving that the claimant had removed herself from the workforce. 

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