By Peter J. Gough, Esq

Every so often the Pennsylvania courts issue decisions that result in attorneys rushing to contact their clients with advice. Now is one of those times. We want you to be aware of a change in the law that could result in the loss of your workers’ compensation benefits.

The Commonwealth Court of Pennsylvania recently issued two decisions, both of which involved injured workers who were receiving workers’ compensation benefits at the same time they were receiving pensions and/or Social Security retirement benefits. The Court concluded that if the injured worker receives a pension or Social Security retirement benefits, that worker is presumed to have been voluntarily removed from the workforce – in other words, “retired.” For that reason, that worker will not be entitled to workers’ compensation benefits.

In the first case, the Court held that an injured worker who accepts a pension is not entitled to workers’ compensation unless that worker establishes that a) he or she is actively seeking employment, or b) the work-related injury forced him or her to retire from working any job in the entire labor market and not just from performing the preinjury job.

A short time later, the Commonwealth Court made life even harder for injured workers. In the second decision, the injured worker applied for and received a disability pension. Then, he testified during his workers’ compensation case that he did not actively seek employment for a period of time after receiving the pension. The Court again found that the injured worker had retired during the time that he did not actively seek work. Thus, he was not entitled to workers’ compensation wage loss benefits.

Moreover, the Court laid out in detail what injured workers must do to demonstrate that they are not retired. Simply put, the Court said that searching the internet or newspaper ads for jobs is just “window shopping” and does not constitute a true job search. To show a good faith effort to find employment, one must prove that job applications were submitted.

What this means is that injured workers who are currently receiving benefits and who are receiving, applying for, or considering taking pensions and/or Social Security retirement benefits must be actively looking for work on a regular basis in a meaningful manner. These workers have to read the classifieds and then contact potential employers about the jobs. The worker must keep a diary or calendar detailing the jobs they looked into, the employer’s name, when they applied, with whom they spoke and any other important details.

Further, injured workers must never describe themselves to their physicians, employer, co-workers or anyone as “retired” or “resigned.”

In sum, an injured worker who is considering retirement must be cautious. The best way to deal with this is to see a workers’ compensation attorney at QuatriniRafferty before applying for retirement, pension or Social Security benefits. If you are already receiving workers’ compensation and retirement benefits, start applying for jobs, keep the diary and see your attorney.