Chief Justice CASTILLE
This appeal involves the assignment of the burden of proof in a workers' compensation case when the employer seeks to modify or suspend a claimant's benefits on the basis that the claimant has retired. The Commonwealth Court plurality devised a "totality of the circumstances" test and concluded that the employer in the case sub judice failed to show that the injured worker had voluntarily withdrawn from the workforce. For the reasons herein, we affirm the order of the Commonwealth Court.
Dorothy Robinson ("Claimant") began working as a police officer of the City of Pittsburgh ("Employer") on April 17, 1989. In 1997, she sustained a work-related injury and Employer placed her in a light-duty position performing office work in the identification section. On October 15, 2001, while Claimant was traveling to an appointment to obtain treatment for her work-related injury, she was involved in an automobile accident in which she sustained new injuries. Employer accepted the subsequent injuries through a Notice of Temporary Compensation Payable dated December 18, 2001. After the accident, Claimant did not return to her light-duty position, nor was she offered any other light-duty work.
In either November or December 2004, Claimant sought and received a disability pension, which is awarded to Pittsburgh police officers if a work-related injury "disable[s]
Nearly three years later, on October 30, 2007, Dr. Victor Thomas performed an independent medical examination of Claimant on behalf of Employer. Dr. Thomas concluded that although Claimant was not fit to perform her prior job as a police officer, she could perform modified-duty work; a form attached to the report specified her work restrictions (e.g., the length of time she could stand during an 8-hour workday; her ability to lift items; physical limitations such as climbing stairs). Report of Dr. Thomas, 11/3/07 at 4 & "Functional Capacities Form."
On November 8, 2007, Employer sent Claimant a Notice of Ability to Return to Work, advising that she had "been released to return to work in a modified position" pursuant to Dr. Thomas' examination.
The WCJ conducted three hearings between January and October 2008. Claimant, who was fifty-two years old at the time of the January 2008 hearing, testified regarding her prior employment, her physical condition, her receipt of benefits, and her attempts to find work. Claimant also offered the deposition testimony of Deborah Curry, a Senior Claims Examiner for UPMC Work Partners, who testified regarding the termination of the light-duty work program previously offered by Employer. Employer submitted the deposition testimony of Dr. Thomas, as well as another doctor's report regarding Claimant's medical condition.
The Workers' Compensation Judge ("WCJ") denied the suspension petition, concluding that Claimant had not voluntarily removed herself from the workforce. The WCJ explained that when an employer terminates the position of a worker injured during the course of employment, the employer must provide the claimant with temporary total disability benefits. If the employer later seeks to modify or suspend the benefits, the employer must show the availability of suitable work. Yet here, the WCJ found, Employer never offered Claimant any light-duty work and in fact in 2003 abolished the modified duty program in which she had been employed; nor did Employer produce any expert testimony, via an earning power assessment, showing that there were vacancies in the local job market that Claimant was qualified to perform.
Employer appealed to the Workers' Compensation Appeal Board ("Board" or "WCAB"), which affirmed the WCJ's decision. Employer appealed to the Commonwealth Court, which affirmed in an en banc, plurality decision, with three judges joining the lead opinion authored by the Honorable Renee Cohn Jubelirer, one judge concurring in the result, and three judges dissenting. City of Pittsburgh v. WCAB (Robinson), 4 A.3d 1130 (Pa. Cmwlth.Ct.2010).
Before the Commonwealth Court, Employer asserted that the Board erred in (1) upholding the WCJ's finding that Claimant remained attached to the workforce when this finding was not supported by substantial evidence; (2) affirming the WCJ's finding that Claimant was forced out of the entire workforce; and (3) determining that Employer was required to present evidence of the availability of suitable work within Claimant's abilities in order to suspend benefits. 4 A.3d at 1133.
The plurality reviewed the pertinent law. Initially, the court explained, to secure a suspension of a claimant's benefits, an employer must meet the following requirements:
4 A.3d at 1134, quoting Kachinski v. WCAB (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374, 380 (1987). The court indicated that pursuant to Section 306(b)(2) of the Act, 77 P.S. § 512(2),
The plurality also recognized that pursuant to Henderson, the employer need not prove the availability of suitable work in a circumstance where the claimant voluntarily removes herself from the labor market through retirement. To the contrary, when a claimant has retired, the claimant bears the burden of showing either that her work-related injury forced her out of the entire workforce, or that she is seeking employment after retirement. The court identified the relevant inquiry in this case as "when the burden should shift from an employer to show the availability of suitable work, under the Kachinski standard, to a claimant to show that she is still attached to the workforce or was forced out of the entire workforce by her workrelated injury, under the Henderson standard. In other words, when is a claimant `retired' such that Henderson and its progeny apply?" 4 A.3d at 1135.
In addressing this question, the plurality noted that Employer assumed that Claimant had retired merely because she had accepted a disability pension. The court further observed that disputes concerning whether a claimant has retired had not been frequently litigated. The court reviewed several of its own decisions, as well as this Court's decision in Henderson, and concluded that in each instance, "the claimant's retirement was undisputed or that the totality of the circumstances supported a holding that the claimant had made the decision to retire." Id., citing Henderson (claimant was receiving Social Security retirement benefits, intended to apply for pension from his employer on his 65th birthday, and stated he was not looking for
The plurality also examined the nature of retirement and whether the acceptance of a pension should create a presumption of retirement. The court noted that Black's Law Dictionary defined retirement as "[t]ermination of one's own employment or career, esp. upon reaching a certain age or for health reasons; retirement may be voluntary or involuntary." BLACK'S LAW DICTIONARY 1431 (9th ed.2009). The court observed that in cases involving pensions, it was important to analyze the facts involved and the type of pension at issue. The court explained that there are different types of pensions, including retirement and disability pensions. Disability pensions, in turn, encompassed different types. For instance, the disability pension at issue in this case required only a showing that the recipient could not perform her time-of-injury job. The court reasoned that acceptance of this type of pension — by itself — would not indicate that the claimant had voluntarily left the entire workforce; instead, it was only an acknowledgement that the worker could not perform her time-of-injury position. 4 A.3d at 1137.
The plurality was also persuaded by the dual obligations of employers under the Act to pay benefits and to assist injured workers return to the workforce. Id. at 1137, citing Landmark Constructors, Inc. v. WCAB (Costello), 560 Pa. 618, 747 A.2d 850, 854 (2000) ("[B]ecause of the Act's humanitarian objectives, an employer must do more than simply pay employees benefits for work-related injuries. In order to make the employee whole, the employer must try to reintroduce into the workforce those employees injured while pursuing the employer's interests."). The court also recognized that workers have a reciprocal obligation to cooperate with the employer's efforts to return them to the workforce. Id.
Distilling these considerations, the plurality ultimately would have adopted what it termed a "totality of the circumstances" standard:
Id. at 1138. Applying this standard, the court concluded that Employer did not provide sufficient evidence to show that Claimant intended to retire. For example, Claimant had accepted a disability pension conditioned upon her inability to perform
Because Employer failed to show that Claimant had retired from the workforce, the plurality concluded that Employer was required to show the availability of suitable work within Claimant's restrictions to sustain its burden. And, because Employer failed to do so, the court did not reach Employer's remaining issues regarding Claimant's good faith search for employment or her forced removal from the workforce.
The Honorable Bernard J. McGinley provided the dispositive vote by concurring in the result, but did not file an opinion explaining his views.
We granted allocatur, limited to the following issue which we rephrased solely for clarity:
610 Pa. 1, 17 A.3d 917, 917-18 (2011). Our review in these sorts of appeals is to determine whether the adjudication at issue contains an error of law, a violation of constitutional rights, a failure to follow a practice or procedure of a Commonwealth
In Employer's view, both Henderson and the seminal case of Republic Steel Corp. v. WCAB (Petrisek), 537 Pa. 32, 640 A.2d 1266 (1994)
Employer acknowledges that it should have to present some evidence to establish a prima facie case in the context of an alleged voluntary withdrawal from the workforce. To meet that burden, Employer submits that it should simply be required to show that the claimant accepted a disability pension (which equates to a "retirement pension"); at that point, retirement would be presumed, and the burden would then shift to the claimant. To
Employer maintains that the Commonwealth Court disregarded Henderson by imposing a new and prohibitive burden on an employer to prove the retired claimant's state of mind (i.e., her intention to terminate her career or to not return to the workforce). According to Employer, the Commonwealth Court's decision requires an employer to prove a negative: because a claim would not be litigated unless a claimant disputed her retirement, an employer essentially must prove job availability for retired claimants receiving a disability pension.
Employer acknowledges the overall humanitarian purpose of the Act,
Claimant counters that the burden-shifting presumption that Employer asks the Court to adopt (i.e., presume voluntary withdrawal from the workforce upon acceptance of any form of pension) is "strange," and does not follow as a reasonable and natural deduction. Claimant notes that any worker who qualifies for and receives a pension always has the opportunity to remain attached to the labor market, including workers who accept Social Security "old-age" benefits. Claimant further argues that Employer relies upon another dubious presumption: a presumed general availability of employment for an injured worker with a residual ability to perform work. In Claimant's view, Employer would charge an unsophisticated claimant with knowledge of her work limitations based on her residual productive skill, education, age and work experience, whereas in other circumstances under the Act, an analysis of the injured worker's ability requires vocational expert testimony. Claimant asserts that this approach also contravenes long-standing precedent, culminating with Kachinski.
Claimant points out that the General Assembly no doubt was aware of existing precedent, including Petrisek and Henderson, when it enacted Section 306(b)(2), which requires an employer to show actual job availability, and an offer of
Claimant does not endorse the Commonwealth Court plurality's totality of the circumstances test, suggesting that such a standard will cause extensive litigation about the injured worker's subjective intent, the type of pension, and the reasonableness of the worker's efforts to find employment. Rather, Claimant urges us to substantially limit when an employer can even argue that an injured worker has withdrawn from the workforce. Claimant requests that we take one of two approaches: either limit Petrisek and Henderson to situations in which the injured worker retired or left work for a pension first and then sought total disability benefits, or overrule those cases to the extent they create a presumption of removal from the workforce based solely on the acceptance of a pension, and require employers to rely on the tools in the Act, namely, the offset for pension benefits and proof of earning power.
To varying extents, both parties suggest that Henderson established a rebuttable presumption of retirement when a claimant
Initially, presumptions are evidentiary tools used in our adversarial system of factfinding. Commonwealth v. Hall, 574 Pa. 233, 830 A.2d 537, 545 (2003). A mandatory presumption "tells the trier of fact that he must find the elemental fact upon proof of the basic fact." Id. There are two types of mandatory presumptions, rebuttable presumptions and conclusive presumptions. Id. n. 4. In the realm of the criminal law, a mandatory rebuttable presumption has been described as "requir[ing] the factfinder to find the presumed element if the basic fact is proven, unless the defendant comes forth with some evidence to rebut the presumed connection between the two facts.... Once the defendant satisfies this burden of production, the ultimate burden of persuasion returns to the prosecution." Commonwealth v. MacPherson, 561 Pa. 571, 752 A.2d 384, 390 (2000), citing County Court of County of Ulster v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). A mandatory conclusive presumption, which is not at issue here, is more momentous, as it "removes the presumed element from the case once the State has proved the predicate facts giving rise to the presumption." Id., citing Francis v. Franklin, 471 U.S. 307, 314 n. 2, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985).
The General Assembly has prescribed mandatory rebuttable presumptions to govern certain issues in worker's compensation cases. For example, in the context of occupational diseases, a claimant initially must prove that he or she is afflicted by one of the enumerated illnesses in Section 108. 77 P.S. § 413. Once it is shown that the worker has contracted the occupational disease, a rebuttable presumption arises that the illness was contracted in the course of employment. Id.; City of Phil. v. WCAB (Kriebel), 612 Pa. 6, 29 A.3d 762, 769 (2011). Thereafter, the evidentiary burden shifts to the employer to rebut the presumption with substantial, competent evidence. 29 A.3d at 769.
A second evidentiary tool used by factfinders is a "permissive inference," which is "no more than a logical tool enabling the trier of fact to proceed from one fact to another, if the trier believes that the weight of the evidence and the experiential accuracy of the inference warrant so doing.... [T]he trier of fact can reject the inference in whole or in part." Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727, 735 (1972), citing 9 Wigmore, Evidence § 2491 (3d ed.1940). With a permissive inference, there is no burden shifting:
MacPherson, 752 A.2d at 390, citing Ulster County Court, 442 U.S. at 157, 99 S.Ct. 2213; quoting Francis v. Franklin, 471 U.S at 314, 105 S.Ct. 1965. As with a rebuttable presumption, the party against whom a permissive inference operates may rebut the inferable conclusion with relevant evidence. Id.
The General Assembly has not adopted any sort of presumption, or permissive
We decline to adopt the extra-statutory presumption of retirement urged by Employer. Adoption of a presumption to govern this factual paradigm is largely a question of policy; and the policy, in this instance, seems to be one which would require empirical support. The judicial branch, faced with discrete factual patterns in individually-contested cases, is not particularly suited to make such empirical judgments to govern an entire set of cases.
Furthermore, we do not believe it self-evident, or even logical to presume, from the simple fact that a claimant accepts a pension, a conclusion that the claimant has completely and voluntarily withdrawn from the workforce, or is prohibited from working in any capacity. This case, as is often the case, proves the point. Claimant did not simply retire to an able-bodied pension; she was entitled to a disability pension because of her prior service and a work-related condition which disabled her from her time-of-injury job. 53 P.S. § 23564(a). At most, Claimant's approved receipt of a
The fact that a claimant elects to receive a pension (of whatever kind) is not devoid of evidentiary weight; it may well be probative of a claimant's desire to leave the workforce. Thus, a claimant's receipt of a pension may give rise to a permissive inference that the claimant is retired. However, this is just one fact of many possible probative facts that must be considered in determining whether the claimant has voluntarily withdrawn from the workforce. Given that the inference to be drawn from a person's receipt of a pension, viewed alone, is equivocal and inconclusive, the receipt of a pension is not sufficient evidence, in and of itself, to discharge the employer's burden of proof.
We also disagree with the notion that Henderson established a rebuttable presumption that a claimant has retired if the claimant accepts any type of pension. Henderson did not purport to lay down any such broad rule, and the holding in that case, like the holdings in all cases, must be read against its facts and the issues actually joined. Cf. Commonwealth v. Marconi, 2013 WL 309896 (Pa. January 22, 2013) (noting that seminal case never framed or addressed issue in terms presented by appellant). In Henderson, the claimant began receiving total disability payments after an injury in 1980. He returned to a light-duty position, and his compensation was reduced to partial disability status. In 1985, due to a recurrence of his work-related disability, he returned to total disability status. In subsequent litigation regarding the worker's status, a referee concluded that the claimant was entitled to receive total disability benefits, but only until July 1, 1989, the date upon which the referee determined that he had retired. The claimant's compensation was suspended based on his own testimony that he was receiving Social Security retirement benefits and that he was applying for a pension from SEPTA on his 65th birthday, June 18, 1989, together with evidence that he began receiving pension benefits on July 1, 1989. Notably, the claimant also testified and, when asked whether he was looking for work, answered, "No sir. Not now."
The Board reversed the referee based upon the Commonwealth Court's decision in Dugan v. WCAB (Fuller Co. of Catasauqua), 131 Pa.Cmwlth. 218, 569 A.2d 1038 (1990), which the Board understood "to mean that disability benefits cannot not be suspended merely because a claimant receives pension benefits and Social Security retirement benefits; there must also be unequivocal evidence that the claimant has no intention of seeking employment after retirement." Henderson, 669 A.2d at 912 (characterizing basis of Board's decision). The Commonwealth Court affirmed the Board's decision, likewise invoking Dugan and its progeny, and emphasizing a statement from Dugan to the effect that "suspension of compensation benefits is appropriate upon retirement if `a claimant states unequivocally that he has no intention of seeking future employment.'" Id., quoting Dugan, 569 A.2d at 1040. Summarizing the basis for the decisions below, the Henderson Court noted that neither the WCAB nor the Commonwealth Court in that case regarded the claimant's answer to the question of whether he was looking for work to be sufficiently unequivocal to justify a suspension of benefits.
The Henderson Court reversed, beginning its analysis by noting that the contested issue arose in the context of litigation over whether the claimant's total
Returning to the Dugan line of decisions in Commonwealth Court, the Henderson Court noted that Dugan itself had not required the employer to prove a referral to an available, medically satisfactory job, if the claimant "states unequivocally that he has no intention of seeking future employment." The Henderson Court noted that the rule so formulated in Dugan derived from the facts in that case, since the claimant there, when asked whether he was seeking employment, replied, "No, I am retired." In contrast, the Henderson Court noted, later Commonwealth Court opinions refused to suspend compensation benefits because there was proof that the claimants either: (1) intended to continue working after retirement, citing Schmidt v. WCAB (Fetch), 140 Pa.Cmwlth. 590, 594 A.2d 812 (1991) and Patterson-Kelly Co. v. WCAB (Woodrow), 137 Pa.Cmwlth. 567, 586 A.2d 1043 (1991), or (2) were retired only because of the work-related injury. Nabisco v. WCAB (Kelly), 148 Pa.Cmwlth. 343, 611 A.2d 352 (1992). Henderson, 669 A.2d at 912-13.
The Henderson Court next noted that this Court had addressed the effect of voluntary retirement in an occupational disease case decided after the Commonwealth Court's decision in Henderson, i.e., Republic Steel Corp. v. WCAB (Petrisek), 537 Pa. 32, 640 A.2d 1266 (1994). The employer in Petrisek had claimed that the claimant had voluntarily retired and had no intention of returning to the workforce, and therefore, suffered no wage loss and was not entitled to compensation benefits. The Henderson Court noted that Petrisek was instructive, notwithstanding the distinction between injury and occupational disease, because Petrisek summarized "the controlling principles which guide our analysis." The Court quoted those controlling principles from Petrisek, as follows:
Employer maintains that Henderson established a presumption of retirement arising from the mere fact of seeking a pension, and that such a conclusion was reinforced by the Hensal court. See Hensal, 948 A.2d at 910 ("Where, as here, a claimant accepts a pension, our Supreme Court, in [Henderson], held that the claimant is presumed to have left the workforce entitling an employer to a suspension of benefits unless he establishes that (1) he is seeking employment or (2) the work-related injury forced him to retire."). But, as our description of Henderson above should make clear, both Employer and the Hensal court have misread the decision. It is true that Henderson did not distinguish among types of pensions, which may partially explain why the Hensal court held that a presumption of retirement arises from acceptance of any pension. But, Henderson did not purport to address issues that might arise with different pensions. More importantly, Henderson never discussed rebuttable presumptions (much less did it purport to establish any) — indeed, the Court never invoked the word presumption — nor was the Henderson decision premised upon the mere or sole fact of that claimant's acceptance of a pension. Rather, the Henderson Court looked at all of the evidence presented on the question of whether the claimant there had voluntarily retired at the relevant time, including the worker's acceptance of a retirement pension from his employer, his acceptance of Social Security retirement benefits, and, importantly, his explicit admission that he was not then seeking employment.
Two practical points may be derived from Henderson in favor of Employer's general position. The first is Henderson's disapproval of the Commonwealth Court decisions requiring an "unequivocal statement" from the claimant. And, second, Henderson recognized that an employer cannot have the "prohibitive" burden of proving that the claimant has no intention of continuing to work; rather, Henderson teaches, when the employer presents sufficient evidence to establish that the claimant may have retired from the workplace, it is the claimant who must show that he or she is seeking employment following retirement from his or her employer, or that he or she was forced into retirement because of the work injury. But these logical evidentiary teachings, which indeed may place some evidentiary burden upon the claimant in an appropriate case, are a far cry from reading Henderson as if it established a rebuttable presumption of voluntary retirement arising from the mere fact of accepting a pension.
In the case sub judice, the Commonwealth Court plurality properly evaluated Henderson insofar as it recognized that the WCJ must consider other evidence in addition to the claimant's simple receipt of a pension to determine whether a claimant in fact has retired from the workforce totally. In this regard, the plurality's "totality of the circumstances" test is simply another way of saying that the factfinder must evaluate all of the relevant evidence in determining whether a worker has retired from the workforce. This conclusion is consistent with our reasoning in Henderson and therefore, in our view, the plurality did not impermissibly establish a new test. Furthermore, and in answer to the specific question accepted for review, it necessarily follows that, when all of the evidence is in (including evidence from the claimant if a showing has been made of apparent voluntary withdrawal from the workforce) the employer, the moving party seeking to suspend benefits, bears the ultimate burden of proving that the claimant has voluntarily removed himself or herself from the workforce.
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
Our holding will not impose a prohibitive burden on employers, nor does it subject employers to the unreasonable task of proving the claimant's state of mind. Nor are we convinced that the dire consequences predicted by Employer — that claimants will impermissibly benefit by supplementing their retirements with workers' compensation benefits, and that the cost containment goal of the Act will be undermined-will result. If an employer is convinced that a claimant has retired, the employer may present evidence to establish that status. As the Commonwealth Court suggested, the 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.
In this case, in maintaining that it presented sufficient proof to show that Claimant had retired, Employer relies on the fact that Claimant applied for and accepted disability pension benefits; the presumption it gleaned from Henderson respecting that fact, a reading and position we have disapproved; the fact that Claimant received a disability pension for many years without seeking new employment; and the fact that Claimant did not submit evidence showing that she was physically or vocationally incapable of performing any work. As we have explained above, receipt of a pension does not establish on its own the fact of a claimant's retirement from the workforce. In this case, the disability pension only shows withdrawal from the Claimant's time-of-injury job. Moreover, the Commonwealth Court plurality accepted the WCJ's factual finding that Petitioner was seeking employment, and that she would have been working had the Employer not terminated her modified-duty job. Finally, the fact that claimant did not submit evidence showing that she was unable to work does not prove voluntary retirement, especially in light of the Employer's own medical testimony regarding Claimant's physical limitations, and the absence of evidence of available work within her restrictions or expert testimony regarding her earning power.
Order affirmed.
Justice ORIE MELVIN did not participate in the decision of this case.
Justice SAYLOR, EAKIN and BAER, Justice TODD and Justice McCAFFERY join the opinion.
77 P.S. § 512(2).
Section 306(b)(2) provides that "`earning power ... shall be based upon expert opinion evidence....'" 77 P.S. § 512(2) (emphasis added); see supra note 3. In Riddle v. WCAB (Allegheny City Elec., Inc.), 603 Pa.74, 981 A.2d 1288 (2009), a majority of the Court indicated that Section 306(b)(2) "replaced" the common-law Kachinski 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 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 preamendment cases. Id.
The three-Justice concurrence in Riddle maintained that the question of whether Section 306(b)(2) replaced Kachinski was not squarely before the Court. For present decisional purposes, we need not resolve any issue respecting the continuing vitality or role of Kachinski.
77 P.S. § 71 (footnotes omitted) (emphasis supplied).