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Ira H. Weinstock, P.C. Harrisburg Workers Compensation Attorney

Can I move if I am receiving Pennsylvania Workers’ Compensation Benefits?

The short answer is “yes” but it does come with some risks.  You may be able to, in certain circumstances, even collect your pension.   In the Pennsylvania Supreme Court case of Chesik v. WCAB, (Department of Military and Veteran’s Affairs), 126 A.3d 1069, the Claimant was injured in Pennsylvania and moved to Nevada while receiving compensation.  The Insurance Company/ Employer filed a Petition to suspend the Claimant’s benefits because they claimed moving created a “voluntary removal from the workforce.”  The Claimant’s testimony was that she moved to Nevada for the “warmer climate,” due to both her work and non-work physical issues.  The Claimant further stated that she moved without the advice or recommendation of any medical doctor.

The Supreme Court held that the Claimant’s Nevada residential location would be the area where any earning power or “vocational placement” would have to be considered.  Under current law, the Employer can “find” jobs, (not necessarily actual, existing jobs) that take into consideration the “employee’s residual productive skill, education, age and work experience,” and would allow the injured worker to “engage in any other kind of substantial gainful employment which exists in the usual employment area in which the employee lives within this Commonwealth.  If the employee does not live in this Commonwealth, the usual employment area where the injury occurred shall apply.”  The Court reasoned that this was not a section limiting a job search only to the where the Claimant lives or works but rather that section 306 (b)(2) is a section which provides “. . .a payment schedule for partial disability  and provide a formula for calculating an injured employee’s benefits.”  Noting that the language contemplated a mobile work force, the Supreme Court ruled that Nevada, not Pennsylvania would be the situs for vocational placement.

The Court also noted that it was necessary to take all facts into consideration in order to determine whether or not a Claimant permanently removed herself from the workforce.  One of the factors relied upon by the tribunals below was that the Claimant had taken a disability pension.   The Supreme Court, cited City of Pittsburgh v. WCAB (Robinson),  67 A.3d 1194, 1198 n. 4 (2013) for the proposition that “. . . There is no presumption of retirement arising from the fact that a Claimant seeks or accepts a pension, much less a disability pension:  rather, the worker’s acceptance of a pension entitles the employer only to a permissive inference that the Claimant has retired.   Such an inference, if drawn, is not on its own sufficient evidence to establish that the worker has retired- the inference must be considered in the context of the totality of the circumstances.  If the employer presents sufficient evidence that the claimant has voluntarily left the work force, (and not by the mere acceptance of a pension), “then the burden shifts to the Claimant to show that there in fact has been a compensable loss of earning power.”

If you are receiving Pennsylvania workers’ compensation benefits and are considering moving to another state, you may want to discuss your case with an experienced Pennsylvania workers’ compensation attorney.

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