A little over a year ago, the Pennsylvania Supreme Court issued an extraordinarily significant opinion in the matter of City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), No. 18 WAP 2011, which clarified an employer’s burden in demonstrating that an employee has removed himself or herself from the workforce. This is significant since voluntary withdrawal from the workforce, or retirement, entitles an employer to a suspension of indemnity benefits. Essentially, Robinson held that in order to prove voluntary removal, the employer must establish by a “totality of the circumstances” that the injured worker has chosen not to return to the workforce. Indicia of such voluntary withdrawal include such things as (1) a lack of dispute that the employee retired; (2) acceptance of a retirement pension; or (3) acceptance of a retirement pension and refusal of suitable employment. Given the very murky status of the law prior to Robinson, the opinion was welcome news for the claimant’s bar.

Under the facts of Robinson, the Supreme Court agreed with a plurality of the Commonwealth Court, which concluded that the employer did not provide sufficient evidence to show that the claimant had intended to retire. The court found that the mere acceptance of a pension does not create a presumption of retirement. Instead, it merely entitles the employer to a “permissive inference” of retirement, which is not by itself sufficient to establish retirement. The inference must by considered in conjunction with the totality of the circumstances.

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