Can Workers’ Comp be Reduced if Receiving Social Security (SSD) in Pennsylvania?
Yes. Proper notice of the offset must be given. And, the injured worker may dispute the offset by filing a Petition to Review Offset.
If an injured worker in Pennsylvania is receiving Social Security Disability benefits, then there is no offset, but there is for “old age” benefits.
With respect to the pension offset, the offset is only allowed to the extent that the pension plan was funded by the employer, whether insurer or self-insured, directly liable for the payment of compensation benefits.
Regarding social security old age benefits, 50% of the benefits shall be credited against the amount of benefits received under the PA Work Comp Act. The offset does not apply if the old age benefits were received prior to the compensable work injury.
Does Receiving Social Security (SSD) Benefits Mean Voluntary Retirement in Pennsylvania?
No. A Pennsylvania Court recently found that receipt of a pension and/or SSD benefits and not looking for work doesn’t mean voluntary retirement.
In an Opinion dated August 9, 2022, Justice Jubelirer for the Commonwealth Court, held that the mere receipt of Social Security Disability benefits, and a pension, and not looking for work, wasn’t enough, given the “totality of circumstances” test to find that Claimant had voluntarily retired such that his wage loss benefits should be suspended. (Hi-Tech Flooring, Inc. vs. WCAB) (Santucci).
Claimant was a tile setter- and a union member since 1985. He injured his knee at work in August 2014. He received a pension from the union in October 2017 and he received Social Security Disability benefits, in part due to his knee injury. (and due to other conditions). Employer filed a Petition to Review the Workers’ Compensation Appeal Board’s Order that reversed the WCJ (Worker’ Compensation Judge) Decision, which granted Employer’s Petition to Suspend, finding that Claimant voluntarily left the workforce by accepting the pension, by obtaining SSD benefits, and by not looking for new employment.
The Commonwealth Court first reminds us that the Pennsylvania Work Comp Act is remedial and based on humanitarian principles. Next, it stressed that it’s Employer’s burden to show a claimant has retired. It then reminded us from prior case law that the receipt of a pension isn’t sufficient evidence that someone has withdrawn from the labor market. It then discussed the “totality of the circumstances” test, which applies here, to determine whether Claimant has chosen not to return to the workforce.
The Court, as part of the totality of circumstances test, also analyzed the SSD Decision which found that the knee injury- the work injury in this case, was at least a part of why he was awarded SSD benefits, and the knee alone caused him to be unable to do his pre-injury work. As such, he was essentially forced out of the workforce. Moreover, Claimant testified that he didn’t know what other type of work he could do since he was a tile setter for 30 years- and that therefore, he didn’t know how his skills would transfer, and not that he had any intent to retire. This distinction was pivotal for the Court.
This was a fantastic Opinion that claimants can utilize as a roadmap, assuming the facts fit, to challenge a Petition to Suspend based on an allegation of a voluntary retirement. It was well reasoned and highlights the heavy burden for employers.
For more information about these offsets under the Pennsylvania Workers’ Compensation Law, contact Philadelphia Work Injury Lawyer, Michael W. Cardamone for a free and prompt consult at (267) 651-7945.
