              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Snyder Memorial Health Care               :
Center (Windsor, Inc.) and Synergy        :
Claims Management Company,                :
                  Petitioners             :
                                          :   No. 81 C.D. 2016
             v.                           :
                                          :   Submitted: July 8, 2016
Workers’ Compensation Appeal              :
Board (Rogers),                           :
                Respondent                :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                     FILED: February 16, 2017


             Snyder Memorial Health Care Center (Windsor, Inc.) and Synergy
Claims Management Company (collectively, Employer), petition for review of the
December 21, 2015 decision of the Workers’ Compensation Appeal Board (Board),
affirming the order of a workers’ compensation judge (WCJ) that denied Employer’s
petition to suspend the compensation benefits of Marlin Rogers (Claimant) on the
basis that he voluntarily removed himself from the workforce and reinstated
Claimant’s total disability benefits effective April 20, 2012.
                              Facts and Procedural History
             Employer employed Claimant as a maintenance supervisor.          In the
course and scope of his employment on January 27, 2011, Claimant sustained a
laceration to his head and left hand, a low back contusion, and a non-displaced
fracture of his fourth left toe when the ladder he was climbing broke, causing him to
fall. These injuries were recognized by Employer in a notice of compensation
payable and Claimant received total disability benefits. Claimant attempted to return
to work with Employer on at least two occasions but could not perform the work
because of ongoing complaints of pain. During these times, Claimant’s benefits were
modified and reinstated. Between November 2011 and January 2012, Employer filed
multiple petitions seeking to terminate/modify/review Claimant’s compensation
benefits and Claimant filed a review petition as well as a challenge petition to a
notification of suspension/modification filed by Employer. These petitions were
assigned to, and resolved by, the WCJ and are not currently at issue.        (WCJ’s
10/31/12 Decision, Findings of Fact Nos. 1-2.)

                          Employer’s Suspension Petition
             On April 20, 2012, after another failed attempt to return to work,
Claimant advised Pamela Lindberg, Employer’s maintenance director, by letter of his
intent to retire.   Employer subsequently filed a petition to suspend Claimant’s
compensation benefits based upon Claimant’s voluntary withdrawal from the
workforce. This matter was assigned to and heard by the WCJ at the same time as
the aforementioned petitions. (WCJ’s 10/31/12 Decision, Finding of Fact No. 1.)
             Employer presented the testimony of Lindberg, who stated that
Claimant returned to work for a brief period in June 2011, and again on December 5,
2011, and that full-time work remained available to Claimant as of February 23,


                                         2
2012, the date on which she testified. Employer also presented the deposition
testimony of Richard Kasdan, M.D., a board-certified neurologist.                     Dr. Kasdan
performed an independent medical examination of Claimant on June 28, 2011, and
opined that Claimant had fully recovered from his work injuries and could return to
his pre-injury position with Employer with no restrictions.                    (WCJ’s 10/31/12
Decision, Findings of Fact Nos. 3, 6-7.)
               Claimant testified that he attempted to return to work, but had to leave
early periodically due to pain in his back and underneath his right shoulder blade, as
well as problems with his leg. Claimant stated that his doctor removed him from
work in January 2012. Claimant testified that he returned to work in March 2012 but
advised Lindberg on April 20, 2012, of his intent to retire because he was tired of
recommendations and orders from his doctor not being followed and rumors that he
was faking his condition.1 Claimant explained that his job duties exceeded the
restrictions imposed by his doctor, who wanted Claimant to work a sedentary desk
position which Employer did not have available. Claimant noted that he would like
to be gainfully employed, but acknowledged that he had not looked for work because
he believed his condition had gotten worse, and he has constant pain in his back and
occasional pain down his legs. (WCJ’s 10/31/12 Decision, Findings of Fact Nos. 4,
8, 10.)
               Claimant submitted the deposition testimony of his treating physician,
Paul Lieber, M.D., who is board-certified in physical medicine and rehabilitation.
Dr. Lieber began treating Claimant on July 1, 2011, at which time he diagnosed
Claimant as suffering from a lumbar strain/sprain and radiculopathy. He released

       1
          Indeed, in his April 20, 2012 resignation letter to Lindberg, Claimant advised that he was
retiring “due to [his] physical conditions.” (Reproduced Record (R.R.) at 309.)



                                                 3
Claimant to return to full-time light duty work on November 16, 2011, but one month
later limited Claimant to working six hours per day, five days a week, based on
Claimant’s reports of pain. As of February 28, 2012, Dr. Lieber opined that Claimant
could perform full-time, sedentary work, which he explained was less burdensome
than light-duty work. (WCJ’s 10/31/12 Decision, Finding of Fact No. 9.)


                       WCJ and Board Original Decisions
            The WCJ ultimately denied Employer’s suspension petition. The WCJ
accepted the testimony of Claimant, Lindberg, and Dr. Lieber as credible, and
rejected the testimony of Dr. Kasdan as not credible. The WCJ stated that he was
denying the suspension petition because the evidence does not reflect that Claimant’s
earnings were equal to or in excess of his time-of-injury wages. The WCJ did not
address Employer’s allegation that it was entitled to a suspension because Claimant
had voluntarily removed himself from the workforce.
            On appeal, the Board remanded to the WCJ for consideration of this
issue, noting the WCJ’s findings that Claimant had retired effective April 20, 2012,
had not been looking for work since that time, and had no present intention of
seeking work. The Board further directed the WCJ to consider our Supreme Court’s
decision in City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson),
67 A.3d 1194 (Pa. 2013), which was rendered subsequent to the WCJ’s decision and
order and outlines the burden of proof to be applied in cases where the claimant has
allegedly retired from the workforce.

                       WCJ and Board Remand Decisions
            On remand, the WCJ first noted that counsel for Claimant sought to
introduce new evidence that Claimant had been granted Social Security Disability


                                         4
Benefits retroactive to January 27, 2011, the date of his work injury, but that he could
not accept that evidence because such was not directed in the Board’s remand order.
The WCJ concluded that nothing in the Robinson case changed his decision on
Employer’s suspension petition because Claimant was totally disabled as of April 20,
2012, the date of his retirement, and was not capable of performing alternative duty
work that Employer made available to him. The WCJ found that Claimant’s total
disability recurred as of that date. (WCJ’s 11/5/14 Decision, Finding of Fact No. 3,
Conclusion of Law No 9.)
             The WCJ noted that nothing in Robinson says that a person who stops
working because he is totally disabled and cannot perform any alternative duty work
should be suspended merely because he filed for old age retirement benefits and is
not looking for work. To the contrary, the WCJ noted that there is no obligation to
look for work when a claimant is totally disabled from all forms of employment due
to a work injury, as Claimant is here. The WCJ stressed that Claimant made repeated
attempts to return to specially-created jobs made available by Employer. Under the
totality of the circumstances test outlined in Robinson, the WCJ concluded that
Employer was not entitled to a suspension since Claimant’s work-related injury
forced him out of the entire workforce and he is not looking for work because he is
unable to work. (WCJ’s 11/5/14 Decision, Conclusion of Law No 9.)
             Employer appealed to the Board, which affirmed the WCJ’s decision on
remand. The Board first noted that the WCJ did not make any new credibility
findings in his remand decision; hence, his original findings accepting the testimony
of Claimant, Lindberg, and Dr. Lieber as credible remained intact. The Board stated
that Employer had the initial burden of establishing that Claimant voluntarily
withdrew from the workforce, but that Claimant had credibly testified that he had



                                           5
retired, not because he wanted to leave the workforce, but because he did not feel
that his restrictions were being accommodated.                  The Board also referenced
Claimant’s testimony that he did not presently feel as though he could work due to
his pain and restrictions. Since Claimant’s credible testimony established that he did
not voluntarily withdraw from the workforce, but rather left the workforce because of
his work injury, the Board concluded that the WCJ did not err in denying Employer’s
suspension petition. Employer thereafter filed a petition for review with this Court.


                                          Discussion
              On appeal,2 Employer first argues that the Board erred in affirming the
WCJ’s decision denying its suspension petition because the evidence of record
establishes that Claimant voluntarily withdrew from the workforce and Claimant’s
subjective beliefs regarding his ability to perform available work cannot support a
finding of total disability. For the reasons that follow, we disagree with Employer’s
arguments.
              Our Supreme Court discussed the burden in voluntary retirement cases
in Robinson, explaining as follows:

       2
         Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether findings of fact were supported by substantial
evidence. Meadow Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer), 894
A.2d 214, 216 n.3 (Pa. Cmwlth. 2006). In addition, review for capricious disregard of material,
competent evidence is an appropriate component of appellate consideration in every case in which
such question is properly brought before the court. Leon E. Wintermyer, Inc. v. Workers’
Compensation Appeal Board (Marlowe), 812 A.2d 478, 487 (Pa. 2002). Capricious disregard of
the evidence exists “when there is a willful and deliberate disregard of competent testimony and
relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a
result.” Station Square Gaming L.P. v. Pennsylvania Gaming Control Board, 927 A.2d 232, 237
(Pa. 2007).




                                                6
             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 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.

67 A.3d at 1209-10.
             The Supreme Court further explained that “[i]f an employer is
convinced that a claimant has retired, the employer may present evidence to establish
that status. . . . [T]he employer may do so by objective facts, including the claimant’s
receipt of a pension, the claimant’s own statements relating to voluntary withdrawal
from the workforce, and the claimant’s efforts or non-efforts to seek employment.”
Id. at 1210. A claimant may defeat the suspension of benefits by establishing a
compensable loss of earning power through evidence that he is seeking work or that
his work-related disability has forced him to withdraw from the workforce. Id.; Day
v. Workers’ Compensation Appeal Board (City of Pittsburgh), 6 A.3d 633, 641 (Pa.



                                           7
Cmwlth. 2010), appeal denied, 81 A.3d 79 (Pa. 2013). Here, Claimant admitted that
he was not looking for work; hence, he had to establish that his work-related
disability has forced him to withdraw from the workforce.
              We have stressed that, in such cases, a claimant must show that he was
forced out of the entire labor market, and not just his pre-injury job. Pries v.
Workers’ Compensation Appeal Board (Verizon Pa.), 903 A.2d 136, 143 (Pa.
Cmwlth. 2005), appeal denied, 923 A.2d 412 (Pa. 2007).3 Moreover, in both Day
and Pries, we held that suspensions were appropriate where the claimants admitted
that they were not looking for work and they failed to present medical evidence
establishing that their work injuries rendered them incapable of performing any
work, i.e., forced them out of the entire workforce. In Day, the claimant sustained
an injury to his neck which required surgery. The claimant eventually returned to his
pre-injury position but he could not perform the same. The employer then moved the
claimant to different modified, light-duty positions, but he was eventually laid off.
The claimant subsequently received unemployment compensation benefits and
looked for light-duty jobs, but was unable to find any. When his unemployment
benefits ceased, the claimant stopped looking for work and applied for and received
Social Security old age benefits, as well as a pension from the employer. The
claimant also received total disability workers’ compensation benefits. Following an
independent medical examination which determined that the claimant was capable of
performing medium-duty work, the employer sent the claimant a notice of ability to
return to work. The employer later filed a suspension petition alleging that the
claimant had voluntarily withdrawn from the workforce.

       3
         While we referenced a claimant’s pre-injury job in Pries, we believe that said rationale
applies equally where, as here, Claimant had returned to a light-duty job.



                                               8
             Before the WCJ, the claimant stated that he believed he could perform
custodial work of the type he had previously performed for the employer. He
acknowledged that he stopped looking for work after he began receiving his pensions
and that he had in fact been released to return to work with restrictions. The claimant
did not introduce any medical evidence.          The WCJ granted the employer’s
suspension petition, concluding that the claimant had voluntarily removed himself
from the workforce. The claimant appealed to the Board, which affirmed. On appeal
to this Court, the claimant argued that the WCJ and the Board improperly shifted the
burden to him to show that he was still looking for work when the burden remained
with the employer to show that suitable jobs were available within his restrictions.
             We rejected the claimant’s argument, noting that an employer was not
required to prove the availability of suitable work when a claimant voluntarily
removes himself from the labor market through retirement. Rather, in such a case,
we stated that the claimant must show that he was looking for work after retirement
or that the work injury forced him out of the entire workforce. In affirming the
Board, we emphasized that the claimant had been working in a light-duty position for
the employer prior to his layoff and retirement, that he admitted that he stopped
looking for work after he began receiving his pensions, and that he presented no
medical evidence to support a finding that he was not capable of performing any
work.
             In Pries, the claimant suffered work-related injuries to his back which
were acknowledged by the employer and for which he received total disability
benefits. The claimant later returned to work for one day so that he could retire and
receive a $60,000.00 retirement package offered by the employer. As part of his
retirement paperwork, the claimant submitted a letter voluntarily withdrawing from



                                           9
employment. The employer thereafter filed a suspension petition alleging that the
claimant had voluntarily withdrawn from the workforce.         Before the WCJ, the
claimant explained that he had to return to a light-duty job for at least one hour on
one day to receive the employer’s retirement package and that he convinced his
doctor to provide him with a note indicating that he could perform such work. The
claimant stated that he felt pressured because he only had two weeks to decide
whether to accept the retirement package. However, the claimant admitted that he
had not looked for work after his retirement. The claimant presented testimony from
his treating physician, who opined that the claimant could not perform his pre-injury
job. The physician corroborated the claimant’s testimony regarding the note for
light-duty work. The employer presented a medical expert who opined that the
claimant was capable of performing light-duty work with restrictions.
            The WCJ denied the employer’s suspension petition, concluding that the
claimant was forced into retirement. The WCJ credited the testimony of the claimant
and his physician, as well as the testimony of the employer’s medical expert.
However, the employer appealed to the Board, which reversed the WCJ’s decision.
The Board reasoned that the claimant failed to establish that he was forced out of the
entire workforce. The Board noted that the employer’s expert had released the
claimant to return to light-duty work and the claimant offered no evidence that he
was unable to perform such work. On appeal to this Court, the claimant argued that
the Board improperly shifted the burden to him to prove that he did not voluntarily
remove himself from the entire labor market.
            We rejected this argument. We noted that the claimant acknowledged
that he had not sought employment since he left his pre-injury position or since he
retired. We also noted the credible testimony of the employer’s expert that the



                                         10
claimant was capable of performing light-duty work. Citing Shannopin Mining
Company v. Workers’ Compensation Appeal Board (Turner), 714 A.2d 1153, 1155
n.5 (Pa. Cmwlth. 1998), we recognized that:

             [T]here may be circumstances where a claimant may be
             forced to retire from his or her time-of-injury job due to a
             work-related injury, but may not be disabled from other
             type of work. In that situation, the claimant must show that
             he or she has not voluntarily withdrawn from the entire
             labor market and is open to employment within his or her
             physical capabilities in order to be entitled to benefits under
             the [Act].
Pries, 903 A.2d at 143-44 (emphasis in original). Ultimately, we held that the
claimant had failed to offer any evidence that he was forced to withdraw from the
labor market due to his work injury.
             The facts of the present case are similar to the facts of Day and Pries.
Similar to the claimants in those cases, Claimant here admitted that he had not
looked for work subsequent to his retirement.        Additionally, at the time of his
retirement, Claimant had been released to perform sedentary work by his own
treating physician, Dr. Lieber, and was in fact working at a modified job offered by
Employer. Further, Claimant failed to present any medical evidence that he was
incapable of performing this modified job or that his work injuries had forced him
out of the entire labor market. While the WCJ made a finding to this effect, this
finding was based on Claimant’s own testimony regarding his perceived worsening
of his condition to the point that he could no longer work at all.             However,
Claimant’s testimony alone is not sufficient to support such a finding.
             Because Claimant admitted that he was not looking for work after his
retirement and the WCJ’s finding that Claimant’s work-related disability forced him
to withdraw from the entire workforce was not supported by substantial evidence,


                                           11
Claimant failed to establish that he had not voluntarily withdrawn from the
workforce.      Thus, the Board erred in affirming the WCJ’s decision denying
Employer’s suspension petition.4
               Accordingly, the order of the Board is reversed.5



                                                  ________________________________
                                                  PATRICIA A. McCULLOUGH, Judge




       4
         We note that Claimant has filed a motion, opposed by Employer, to supplement the record
to include the decision of the Social Security Administration granting him Social Security disability
benefits. However, given the different standards applicable under federal law and the fact that this
decision was not considered by the WCJ or the Board, we deny Claimant’s motion.

       5
          In light of our disposition above, we need not address Employer’s remaining arguments
relating to the WCJ’s purported capricious disregard of the evidence or the WCJ’s failure to issue a
reasoned decision.



                                                 12
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Snyder Memorial Health Care              :
Center (Windsor, Inc.) and Synergy       :
Claims Management Company,               :
                  Petitioners            :
                                         :    No. 81 C.D. 2016
             v.                          :
                                         :
Workers’ Compensation Appeal             :
Board (Rogers),                          :
                Respondent               :


                                     ORDER


             AND NOW, this 16th day of February, 2017, the order of the
Workers’ Compensation Appeal Board, dated December 21, 2015, is hereby
reversed. The motion of Marlin Rogers to include in the record the decision of the
Social Security Administration granting him disability benefits is denied.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
