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Smith v. Workers' Compensation Appeal Board3/10/1999
SUBMITTED: February 5, 1999
Willie Smith (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) affirming a Workers' Compensation Judge's (WCJ) decision suspending his total disability benefits after finding that he voluntarily removed himself from the workforce, as well as denying his petition for penalties because Employer had unilaterally ceased payment of benefits.
Claimant suffered an injury to his right knee in the course of employment with Dunhill Temporary Systems (Employer) on February 10, 1994, and workers' compensation benefits were granted. In October 1996, Claimant accepted a volunteer position with the Peace Corps and moved to North Ghana, West Africa. Employer then filed a suspension petition alleging that Claimant's benefits should be suspended because by joining the Peace Corps and moving to West Africa, he had voluntarily removed himself from the workforce. Claimant filed an answer to the petition admitting the he was in the Peace Corps and residing in West Africa, but denied that he had removed himself from the workforce. Because he claimed that Employer had unilaterally suspended his benefits as of October 1996, in violation of the Workers' Compensation Act (Act), Claimant filed a petition claiming penalties. The case then was assigned to a WCJ for a decision.
The WCJ scheduled a hearing for February 7, 1997, but no evidence was entered into the record. Claimant did not attend because he was in West Africa, but his attorney who was present argued that Claimant's benefits should not be suspended simply because he was in the Peace Corps. The WCJ found that because Claimant had admitted to joining the Peace Corps and moving to West Africa, he voluntarily removed himself from the workforce. The WCJ stated, " e would assume that the Claimant, to be a viable member of the Peace Corps, must be engaging in some type of activity and that the Peace Corps did not send [Claimant] to Africa to do nothing." Consequently, he granted Employer's suspension petition. He also denied Claimant's penalty petition on the grounds that it was Claimant's actions that caused the suspension of benefits and the situation did not warrant the imposition of penalties.
Claimant appealed to the Board contending that the WCJ erred in finding that he had removed himself from the workforce and had abused his discretion in not awarding penalties against Employer for unilaterally ceasing payment of his benefits. He argued that Employer was required to either show a change of condition or job availability under Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987). The Board, however, affirmed reasoning that Claimant's actions were akin to a retirement in that Claimant voluntarily removed himself from the workforce. The Board also found that although the Employer violated the Act by unilaterally stopping Claimant's benefits, the WCJ did not abuse his discretion in not awarding penalties. This appeal followed.
Claimant contends that the Board and WCJ erred in finding that he voluntarily removed himself from the workforce because he never unequivocally stated that he was removing himself from the workforce. He argues that Employer is still required to show either a change in condition or job availability under Kachinski. A claimant is precluded from continuing to receive benefits if he voluntarily removes himself from the workforce because he is no longer seeking employment. Armstrong World Industries v. Workers' Compensation Appeal Board (Evans), 703 A.2d 90 (Pa. Cmwlth. 1998). In Banic v. Workmen's Compensation Appeal Board (Trans-Bridge Lines, Inc.), 550 Pa. 276, 705 A.2d 423 (199
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