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Litigating Claims for Older Workers

  • Jon Koutcher
  • 11/19/2013

We all know that clients come in all different shapes and sizes.  They also come in different ages.  For one particular age group of clients, those nearing the age of 65, litigating a Workers’ Compensation case can be challenging. Here are some of the important issues when litigating a claim for an older worker.

Retirement:  This has become a confusing word, and there has been a lot of litigation on what retirement means and how it impacts a worker’s compensation case.  Historically, if an injured worker testified they were retired, disability benefits were suspended as the injured worker was deemed to be “voluntarily removed” from the workforce.  The employer was not required to prove job availability as a result in order to suspend benefits.  The Courts then focused on an injured worker’s receipt of a retirement pension and the implications arising there from.  Early decisions from Courts in Pennsylvania held that an injured worker was presumed to have voluntarily retired from the work force, and the employer was entitled to a suspension of benefits unless the injured worker could show they were seeking employment or that the work injury forced them to retire.

More recently, Courts have determined that the simple act of applying for a pension will not trigger an automatic presumption that the injured worker has been voluntarily removed from the workforce; instead, the employer needed to show by a “totality of the circumstances” that an injured worker has chosen not to return to the workforce.  Recently, Courts have tried to clarify the standard, and held that simply because an injured worker accepts a pension, a conclusion cannot be drawn that the injured worker has completely and voluntarily withdrawn from the workforce or is prohibited in working in any capacity. Of critical importance was the Court’s distinction that at most, an injured worker’s receipt of a pension could give rise to a “permissive inference” that an injured worker has retired, which was just one of many facts that must be considered when determining whether an injured worker has withdrawn from the work force. So, it seems the Courts have moved away from a strict presumption of removal from the work force upon receipt of a pension which allows the judge to look at a number of factors before determining whether retirement/withdrawal has occurred. This allows an injured worker to now explain the specific facts that led to the pension acceptance and whether there has been a retirement from work.

Social Security Disability and Social Security Retirement:  Often clients who receive worker’s compensation benefits receive social security disability benefits at the same time.  Older workers need to be aware that at the age of 66, social security disability benefits convert automatically to social security retirement benefits.  As a result, the worker’s compensation insurance carrier is entitled to a 50% credit against worker’s compensation benefits for social security retirement benefits received by the injured worker.  An injured worker receiving worker’s compensation wage loss benefits, and not already receiving social security disability benefits, should wait as long as possible beyond age 65 (preferably until the worker’s compensation case ends) to apply for and receive social security retirement benefits.

Concurrent Illnesses:    I wrote a prior article on the impact a non, work –related illness can have on an injured worker’s status.  Again, an injured worker who has a non, work –related illness that prevents the injured worker from returning to work, runs the risk of having benefits suspended.

Death:  Not to be morbid, but if an injured worker passes away while receiving wage loss benefits, the case ends right there (unless of course the death was due to the work accident or complications thereafter).

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