Wednesday, February 4, 2009

New Case Law on Serial Termination Petitions

There was a new Pennsylvania Commonwealth Court decision in the case of Delaware County v. WCAB (Browne) dated December 22, 2008. This case dealt with the issue of serial Termination Petitions by the insurance company. I have blogged about the issue of “serial termination petitions” previously, specifically about the case of Lewis v. WCAB (Giles & Ransome, Inc.) case. This blog post can be found here.

The Delaware County case involved the similar facts as in Lewis wherein a claimant previously defeated a termination petition and then a subsequent termination petition was filed. The Commonwealth Court held that the employer failed to establish that the Claimant’s physical condition had changed since the prior decision. The Commonwealth Court indicated that in order to show a “a change in the Claimant’s physical condition” before the employer can move forward with a Termination Petition, the employer could come forward with creditable medical evidence that the Claimant’s current physical condition is different than it was at the time of the last disability adjudication due to a total recovery from the recognized work injury. Such medical evidence, if found creditable by the WCJ and if referenced as a Finding of Fact in the Decision, would satisfy the employer’s burden of proving a change in the Claimant’s physical condition.

In other words, by accepting the employer’s medical evidence of a full recovery as creditable, a WCJ could properly make a finding that the employer has met the standards set forth in Lewis by demonstrating a change in Claimant’s condition.

I am sure this case will be appealed and we will receive more clarification on the burdens of proof in serial termination cases.

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