After Retirement, Burden Shifts To Claimant To Show No Work Is Available Within The Claimant's Restrictions

County of Allegheny (Department of Public Works) v. WCAB (Weis) is a significant case on the receipt of workers' compensation benefits after retirement. Where the Claimant was unable to do the job he retired from, but was able to perform sedentary work, the Claimant had the burden to show he continued to seek employment to avoid a suspension of benefits.

The WCJ and Board denied the Employer's Petition for Suspension on the basis that the Claimant could not do his pre-injury job. There was no evidence of sedentary job availability. The WCJ, though not the Board, granted attorney's fees for unreasonable contest.

The Commonwealth Court cited Southeastern Pennsylvania Transp. Auth. v. Workmen’s Comp. Appeal Bd. (Henderson), 543 Pa. 74, 669 A.2d 911 (1995) for the proposition that the burden to show the Claimant remains in the labor market is on the Claimant. It was undisputed in the case that the Claimant did not seek any work, although he did testify he intended to "if they got my knee straightened out." The Commonwealth Court suspended benefits and affirmed the Board's finding of a reasonable contest.

The Dissent highlights that the majority's opinion suspended benefits even though the Claimant was only released to sedentary duty for two hours per day, and even though his retirement was a disability retirement.

This is interesting from a procedural standpoint. An Employer's Suspension Petition alleging the Claimant has removed himself or herself from the workforce basically becomes a rule on the Claimant to show cause why the Claimant's benefits should not be suspended. So long as there is evidence the Claimant is able to do some work, the Employer has a reasonable contest in filing such a petition.