            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mary Ellen Chesik,                          :
                  Petitioner                :
                                            :
               v.                           : No. 758 C.D. 2015
                                            : Submitted: October 9, 2015
Workers’ Compensation Appeal                :
Board (Department of Military and           :
Veterans’ Affairs),                         :
                    Respondent              :


BEFORE:        HONORABLE DAN PELLEGRINI, President Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
PRESIDENT JUDGE PELLEGRINI                         FILED: November 9, 2015


               Mary Ellen Chesik (Claimant) petitions for review of the order of the
Workers’ Compensation Appeal Board (Board) affirming the decision of a
workers’ compensation judge (WCJ) who granted the petition of the Department of
Military and Veterans’ Affairs (Employer) to suspend Claimant’s workers’
compensation benefits under the Pennsylvania Workers’ Compensation Act (Act)1
because she had voluntarily withdrawn from the workforce. We reverse.


               In July 2009, Claimant suffered a cervical sprain/strain injury while in
the course of her employment with Employer.                     Pursuant to a Notice of


      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
Compensation Payable (NCP), Claimant received $418.00 in weekly compensation
benefits. In March 2013, Employer filed a petition to suspend Claimant’s benefits
alleging that “Claimant has moved to Nevada and has voluntarily removed herself
from the workforce….” (Reproduced Record (RR) 3a).2

       2
           Section 306(b)(2) of the Act provides:

                (2) “Earning power” shall be determined by the work the employe
                is capable of performing and shall be based upon expert opinion
                evidence which includes job listings with agencies of the
                department, private job placement agencies and advertisements in
                the usual employment area. Disability partial in character shall
                apply if the employe is able to perform his previous work or can,
                considering the employe’s residual productive skill, education, age
                and work experience, engage in any other kind of substantial
                gainful employment which exists in the usual employment area in
                which the employe lives within this Commonwealth. If the
                employe does not live in this Commonwealth, then the usual
                employment area where the injury occurred shall apply. If the
                employer has a specific job vacancy the employe is capable of
                performing, the employer shall offer such job to the employe. In
                order to accurately assess the earning power of the employe, the
                insurer may require the employe to submit to an interview by a
                vocational expert who is selected by the insurer and who meets the
                minimum qualifications established by the department through
                regulation….

77 P.S. §512(2) (emphasis added).

       As the Supreme Court has explained:

                In Riddle v. WCAB (Allegheny City Elec., Inc.), [981 A.2d 1288
                (Pa. 2009)], a majority of the Court indicated that Section
                306(b)(2) “replaced” the common law Kachinski [v. Workmen’s
                Compensation Appeal Board (Vepco Construction Co., 532 A.2d
                374 (Pa. 1987)] approach and credited the Commonwealth Court’s
                “holding that the 1996 amendment eliminated the Kachinski
                requirement[.]” Id. at 1292. The Riddle majority, however, also
                added a footnote suggesting that Kachinski may play a continuing
(Footnote continued on next page…)

                                                    2
(continued…)

              role. In this regard, the majority concluded that, by adopting
              Section 306(b)(2), the Legislature “lowered” the Kachinski burden
              of proof by “allowing” an employer to obtain modification or
              suspension of benefits on evidence of earning power proved
              through expert testimony rather than by providing evidence that
              the claimant had obtained employment. Id. at 1292 n.8. The
              footnote also relates that the Kachinski test continues to apply
              “exclusively only” in pre-amendment cases.

City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), 67 A.3d 1194, 1198 n.4
(Pa. 2013).

       Nevertheless, in cases such as this where the suspension of benefits is sought because the
claimant has allegedly removed herself from the workforce, the Supreme Court explained:

                      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 that
              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 only to
              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 context of 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.

                     If the employer produces sufficient evidence to support a
              finding that the claimant has voluntarily left the workforce, then
              the burden shifts to the claimant to show that there in fact has been
              a compensable loss of earning power. Conversely, if the employer
(Footnote continued on next page…)

                                               3
              At deposition, Claimant testified that she moved to Lovelock, Nevada,
in December 2012, and that she is living by herself with no family, dependents or
relatives in the area. (RR 92a, 93a). She stated that she moved to Nevada for its
warmer climate because her body does not do well with the moisture and dampness
in her former hometown of Scranton, Pennsylvania. She testified, “I do have lupus
and fibromyalgia also, and that was the main reason why I moved to a warmer
climate.” (Id.). She stated that she was diagnosed with those conditions 12 years
earlier. Claimant also testified that another reason she moved to Nevada was
because she had met a friend online who lives there and recommended that she
move there for the weather, so she visited her friend for two weeks in July 2012
and moved there in December 2012. She stated that she investigated the drier
climate there before moving, but that she did not receive “any type of medical
clearance” or “authorization or recommendation” from a doctor that she should
move to Lovelock, Nevada. (Id. 96a, 105a). She testified that she has a Lovelock,
Nevada driver’s license and that she has not looked for or worked in any
employment capacity there. (Id. 102a, 106a, 107a).


              Claimant stated that she retired from her position with Employer in
October 2012 and applied for disability pension benefits in December 2012. (RR


(continued…)

              fails to present sufficient evidence to show that the claimant has
              retired, then the employer must proceed as in any other case
              involving a proposed modification or suspension of benefits.

Robinson, 67 A.3d at 1209-10.




                                              4
106a). She testified that prior to moving, she researched other climate conditions
on the computer including Arizona and New Mexico, but that the “determining
factor was [her] body.” (Id. 99a-100a). She stated that she “moved for a better
quality of life for [her] body” and that she has not received any type of income
other than her workers’ compensation benefits, Medicare and her disability
pension. (Id. 102a, 105a-106a). Claimant testified that she came back to Scranton
specifically to testify by deposition and that it is her intention to stay in Lovelock,
Nevada, for an indefinite period of time. (Id. 102a). She stated that she consulted
with a physician in Nevada at a spinal institute in February 2013, but she could not
recall his name and did not return and has not seen any physicians for her neck
since that time. (Id. 103a-104a).


             Claimant testified that she did not tell her treating doctors that she was
planning to move before she moved to Nevada. She stated that she has daily pain
in her arms related to her work injury that has been going to her hands the
preceding three weeks. She testified that she also believes that she has “a third
disc that is compromised” “that’s giving [her] a lot of problems with [her] neck,”
and that prevents her from turning her head to the left with “a lot of pain down
[her] neck and down [her] back and [her] arms….” (RR 111a). She acknowledged
that when she moved to Nevada, she couldn’t work anywhere in Scranton, and that
“by moving to Nevada, [she] took [herself] out of the work force at least in
Scranton, Pennsylvania” and in the “region.” (Id. 113a). Nevertheless, she stated
that it was not her intention to remove herself from the workforce when she moved
to Nevada, and that “If there’s a possibility that I could work, I would love to
work.” (Id. 111a).



                                          5
              In March 2014, the WCJ issued a decision granting Employer’s
suspension petition. Citing Blong v. Workers’ Compensation Appeal Board (Fluid
Containment), 890 A.2d 1150 (Pa. Cmwlth. 2006), and Smith v. Workmen’s
Compensation Appeal Board (Dunhill Temporary Systems), 725 A.2d 1285 (Pa.
Cmwlth. 1999),3 the WCJ explained that an employer does not need to demonstrate

       3
          In Blong, the claimant was awarded disability benefits due to a bilateral carpal tunnel
injury to his wrists and hands. The employer notified the claimant of an Independent Medical
Examination (IME) to assess his injury and was informed that the claimant could not attend
because he had moved from Pennsylvania to New Zealand to live with his wife who was a native
New Zealander. The employer then sought to terminate or suspend the claimant’s benefits
because he had voluntarily removed himself from the workforce while the claimant admitted that
he had moved, but specifically denied that he had removed himself from the workforce.
Nevertheless, in affirming the suspension of benefits, this Court explained:

                      The WCJ based his conclusion upon our holding in [Smith].
              In Smith, the claimant suffered a work-related injury for which he
              was awarded total disability benefits. While still receiving these
              benefits, the claimant accepted a position with the Peace Corps and
              moved to Ghana, West Africa. The employer filed a suspension
              petition based on the fact that the claimant had voluntarily
              removed himself from the workforce, and the petition was granted.
              The claimant petitioned this Court for review, contending that
              because he never unequivocally stated that he was removing
              himself from the workforce, the employer was still required to
              show either a change in condition or job availability under
              [Kachinski]. We disagreed with the claimant, reasoning as
              follows:

                      Claimant has voluntarily removed himself from the
                 workforce by joining the Peace Corps and moving to West
                 Africa. Claimant obviously cannot perform activities with
                 the Peace Corps in West Africa and at the same time be
                 available for job referrals in the Wilkes-Barre area. Much
                 like a person who is incarcerated or a retiree, Claimant’s
                 present loss of earning power is not a result of his disability
                 but is because of his voluntary decision to join the Peace
                 Corps and move to another continent. To require Employer
(Footnote continued on next page…)

                                               6
(continued…)

               to establish a change in condition or job availability is a
               result that would be “irrelevant and fruitless” when Claimant
               has removed himself from the workforce by joining the
               Peace Corps and has moved to West Africa. Consequently,
               the Board did not err in suspending Claimant’s disability
               benefits

           Smith, 725 A.2d at 1287 (emphasis added). Claimant argues,
           however, that his situation can be distinguished from that in Smith.

                   In Smith, this Court found that claimant had voluntarily
           removed himself from the workforce, reasoning, in part, that
           “Claimant obviously cannot perform activities with the Peace
           Corps in West Africa and at the same time be available for job
           referrals in the Wilkes-Barre area.” Smith, 725 A.2d at 1287.
           Here, Claimant is not performing new work in New Zealand-he
           has simply moved there. The question is whether, in light of this
           move, he is available for jobs in the Mt. Union area. It is true that
           unlike the Claimant in Smith, Claimant is not occupied by the
           Peace Corps, but we do not believe that fact was critical to the
           holding in Smith.

                   Claimant has not put any evidence on the record that his
           move to New Zealand is temporary. In Smith, the claimant’s move
           to Africa was a temporary assignment, after which, presumably, he
           would return to the United States. The critical fact in Smith was
           not that the claimant was occupied in Africa but that by being in
           Africa, jobs in the Wilkes-Barre area were irrelevant. To follow
           Claimant’s logic would lead to the rule that people who move to
           another continent would be eligible for compensation if they were
           indolent, but not if they were engaged in a worthy activity such as
           the Peace Corps.

                   The critical fact is removal. As in Smith, it would be a
           futile undertaking for Employer to find jobs suitable for Claimant
           in the Mt. Union area. Claimant has removed himself from that
           workplace and offered no indication that he intends to move back
           to the United States should he learn of suitable employment in Mt.
           Union. In sum, Claimant has removed himself from the workplace
(Footnote continued on next page…)

                                            7
that a claimant is physically able to work or that available work has been referred
to the claimant where she has voluntarily retired or withdrawn from the workforce.
The WCJ found that Claimant “voluntarily removed herself from the workforce,
not because of her medical condition with regard to the work injury,” “but because
of non-work related conditions consisting of lupus and fibromyalgia, which
conditions have been preexisting for twelve years.” (RR 19a). The WCJ also
found that “Claimant failed to even notify her local physicians or seek their
approval before moving to Nevada, and her decision to move to what she
considered to be a warmer climate is solely her decision, along with her decision to
take her pension and remove herself from the workforce.” (Id.).


              Citing Mendes v. Workers’ Compensation Appeal Board (Lisbon
Contractors, Inc.), 981 A.2d 334 (Pa. Cmwlth. 2009),4 the WCJ also explained that
an employer need not show a change of condition or job availability where the


(continued…)

              with as much certainty as one who becomes incarcerated or one
              who decides to retire.

Blong, 890 A.2d at 1154 (footnoted omitted).

       4
          In Mendes, the claimant suffered work-related injuries in the nature of a disc syndrome
or herniated nucleus pulposus, ambulatory dysfunction, myofascial pain syndrome and chronic
progression and he received benefits pursuant to a supplemental agreement. The employer
sought a suspension of his benefits which the WCJ granted on the basis that he had voluntarily
removed himself from the workforce when he moved to Portugal seven years earlier. This Court
affirmed the suspension, stating that “Here, Claimant, like the claimants in Blong and Smith,
removed himself from the workforce when he chose to reside in Portugal for more than seven
years. Employer was not required to meet the Kachinski requirement of a change in condition in
order to suspend benefits.” Mendes, 981 A.2d at 335 (footnote omitted).




                                               8
claimant removes herself from the workforce by relocating to another country.
The WCJ found that Employer “successfully met its burden of proof to establish
that [C]laimant voluntarily removed herself from the workforce” and, as a result,
“it is not medically necessary for [Employer] to show a change in physical
condition or work availability given [C]laimant’s actions by moving from her
present local Scranton, PA to Lovelock, Nevada and therefore, removing herself
from the workforce locally.”     (RR 19a).    Based on the foregoing, the WCJ
concluded that Employer met its burden of proving that Claimant voluntarily
removed herself from the workforce and suspended her benefits effective
November 3, 2012; and that Claimant voluntarily accepted pension benefits as
further evidence that she had voluntarily removed herself from the workforce.


            On appeal to the Board, Claimant argued that the WCJ erred in
concluding that she voluntarily removed herself from the workforce merely by
moving from Pennsylvania to Nevada, and that the WCJ violated the Supreme
Court’s holding in Robinson by concluding that the acceptance of her disability
pension benefits was “further evidence that she removed herself from the
workforce.” The Board rejected these claims, explaining that “Claimant testified
she has not sought any employment since her injury, and did not assert she had
been forced into retirement,” and that “unlike the claimants in Blong, Smith, and
Mendes, [she] specifically confirmed she intends to stay in Nevada and never
return to live in Pennsylvania again” so “the WCJ did not err in determining [she]
had voluntarily removed herself from the workforce.” (RR 46a). The Board also
determined that the WCJ’s decision did not violate Robinson, explaining that
“Robinson clearly states the factfinder must consider the totality of the



                                        9
circumstances” and that “[t]he WCJ did so in this case, finding while Claimant did
elect to take a disability pension from [Employer], she also chose to permanently
move to Lovelock, Nevada, where she would no longer be able to accept a job in
the Scranton, Pennsylvania area, thus voluntarily removing herself from the
workforce.” (Id. 47a).


              In this appeal,5 Claimant contends that the Board erred in affirming
the suspension of benefits because her permanent change of residence from
Pennsylvania to Nevada does not constitute a voluntary removal from the
workforce as in Blong, Smith and Mendes, and there are no other objective facts in
addition to her acceptance of the disability pension6 to support such a conclusion as
required by Robinson. We agree.


              As noted above, in determining “earning power” under the Act,
Section 306(b)(2) provides, in relevant part:

       5
          In a workers’ compensation proceeding, this Court’s scope of review is limited to
determining whether there has been a violation of constitutional rights, errors of law committed
or a violation of appeal board procedures, and whether necessary findings of fact are supported
by substantial evidence. Lehigh County Vo-Tech School v. Workmen’s Compensation Appeal
Board (Wolfe), 652 A.2d 797, 799 (Pa. 1995).

       6
         Claimant explained that circumstances surrounding her acceptance of the disability
pension as follows:

              I knew after three years – being in the state system, being a state
              employee, I knew that after three years if you were out of work due
              to an injury, they give you that option of resigning or retiring with
              benefits or whatever the options were that they offered. That was
              what I was offered. I didn’t resign. I took the disability.

(RR 107a).



                                               10
             Disability partial in character shall apply if the employe
             is able to perform his previous work or can, considering
             the employe’s residual productive skill, education, age
             and work experience, engage in any other kind of
             substantial gainful employment which exists in the usual
             employment area in which the employe lives within this
             Commonwealth. If the employe does not live in this
             Commonwealth, then the usual employment area where
             the injury occurred shall apply.


77 P.S. §512(2) (emphasis added).          Clearly, Section 306(b)(2) specifically
contemplates    that   Claimant    would     permanently      relocate   outside   the
Commonwealth following her work-related injury and the payment of benefits, and
directs how to determine her earning power when the modification or suspension
of these benefits is sought.


             In Riddle, the claimant was injured while working as an electrician in
Pittsburgh and received total disability benefits.     He subsequently moved to
Wheeling, West Virginia and after he was released to light-duty work, the
employer sought to modify or suspend his benefits alleging that he had a residual
earning capacity requiring a decrease in benefits.          In support, the employer
presented a vocational expert who testified that after evaluating the claimant, he
performed a labor market survey for the Wheeling area, where the claimant now
lived, and prepared an earning power assessment report. In the report, the expert
identified five available positions in Wheeling, Washington, Pennsylvania, and
Ohio. The claimant objected to the use of the report, arguing that it did not comply
with the geographical area requirements of Section 512(2) specifying the location
of injury, but the WCJ relied on the expert’s report for Wheeling to grant the
modification petition and reduce the claimant’s benefits.


                                        11
            On appeal, both the Board and this Court affirmed, but the Supreme
Court reversed, explaining:

            When it amended Section 306(b) to add subsection (2) in
            1996, the General Assembly replaced this Court’s
            Kachinski approach. 77 P.S. §512(2); see Edwards v.
            Workers’ Comp. Appeal Bd. (MPW Indus. Services, Inc.),
            858 A.2d 648, 651 (Pa. Cmwlth. 2004) (holding that the
            1996 amendment eliminated the Kachinski requirement
            that an injured employee be offered an actual job). The
            legislature amended the [Act] and added the definition of
            “earning power” at issue here as well as a new standard
            for proving earning power. The current Section 306(b)
            does not require that the employer provide the injured
            employee with a job or specify attributes, such as
            geographical location, for that job as this Court had
            previously done in Kachinski. 77 P.S. §512; see
            Edwards, 858 A.2d at 651. Rather, the sole purpose of
            current Section 306(b) is to describe the payment
            schedule for partial disability and provide a formula for
            calculating an injured employee’s benefits. 77 P.S. §512.
            The statute defines how earning power is calculated for
            different categories of claimants, including out-of-state
            residents. 77 P.S. §512(2).

                  The calculation under most circumstances only
            approximates a claimant’s “true” earning power. For the
            majority of employees injured on the job, the Section
            306(b) formula is a fairly accurate approximation
            because it reflects their job market and choices in
            pursuing employment before the injury. Indeed, the
            General Assembly weighed competing policies in this
            area of law and effectively made a policy choice. We
            must defer to the General Assembly’s explicit dictate and
            cannot alter the clear expression of policy by the General
            Assembly under the guise of “pursuing its spirit.” 1
            Pa. C.S. §1921.

                  The General Assembly defined the method for
            evaluating “earning power” in unequivocal mandatory
            language that identifies the area where the injury

                                       12
             occurred as the relevant location for non-residents. 77
             P.S. §512(2). For this reason, we hold that when
             developing an [earning power assessment] for such an
             employee, an employer must focus its job availability
             analysis on the area where the injury occurred…. Id.
             The employer has no discretion to enlarge its search and
             focus on multiple or other areas that it decides could
             yield a “true” assessment of an injured employee’s
             earning power, even if these additional areas overlap with
             the area where the injury occurred….


Riddle, 981 A.2d at 1292-93 (footnote omitted).


             Based on the foregoing, it is clear that the WCJ erred as a matter of
law in relying on Claimant’s permanent relocation to Nevada, standing alone, to
support a determination that she had permanently removed herself from the
workforce. Such relocation is specifically contemplated by and provided for in
Section 306(b)(2) of the Act.      Likewise, the WCJ could not solely rely on
Claimant’s receipt of her disability pension to support the suspension of benefits
on the basis that she has permanently separated from the workforce. See Robinson,
67 A.3d at 1210 (“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 only to 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 context of the totality of the circumstances.”). As a result, the
WCJ erred in suspending Claimant’s benefits in this case based solely on her move
to Nevada and her receipt of a disability pension as there is no other evidence or




                                         13
findings to support the determination that she has permanently removed herself
from the workforce.


            Accordingly, the Board’s order is reversed.



                                     _________________________________
                                     DAN PELLEGRINI, President Judge




                                       14
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mary Ellen Chesik,                   :
                  Petitioner         :
                                     :
             v.                      : No. 758 C.D. 2015
                                     :
Workers’ Compensation Appeal         :
Board (Department of Military and    :
Veterans’ Affairs),                  :
                    Respondent       :




                                    ORDER


             AND NOW, this 9th day of November, 2015, the order of the
Workers’ Compensation Appeal Board dated April 7, 2015, at No. A14-0286, is
reversed.



                                     _________________________________
                                     DAN PELLEGRINI, President Judge
