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.

New Case Law on Serial Termination Petitions

In Prebish v. WCAB, decided on July 14, 2008, the Commonwealth Court of Pennsylvania handed down a decision dealing with facts which we often see where an insurance company files termination petition after termination petition over several years on the same claimant.

A Termination Petition is used by an insurance company to argue that the claimant’s injury is no longer present, i.e., that it has healed and is no longer there. If successful on these petitions, the claimant’s workers’ compensation wage and medical benefits should be stopped or "terminated." In order to defeat this kind of petition, the claimant merely has to show that the condition or the injury is still present. This is usually done through testimony from the medical expert in the case.

In some circumstances, the insurance company will file a Termination Petition but then lose and then they will wait six months to file another Termination Petition and lose again and then in six months file another one. This is called a serial termination case.

The Commonwealth Court ruled that in serial termination cases, the Judge has to find that the claimant’s condition changed from the prior litigation in order to grant the new Termination Petition. This means that in a case where the medical testimony and the Judge finds facts that the claimant’s condition has not changed since the previous termination petition was lost, then the insurance company cannot prove that the injury has healed or is over. In order to prevail on a serial termination case, the insurance company will have to prove that the claimant’s condition has changed to the better, to the point where there is no injury.

Hopefully, this will somewhat limit these serial termination cases, which can be quite annoying and harassing to injured workers.