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October 21, 2008

A Glimmer of Hope For Successive Defense Petitions

It is well-known that it is difficult for an employer/carrier to prevail on a Termination Petition. However, the hurdle is even higher when the employer/carrier tried and failed then wants to take a second bite at the apple.

In Lewis, the Supreme Court held that an employer seeking to terminate or modify benefits must first show a change in a claimant’s physical condition from the time of the last disability determination. The Concurring Opinion noted that the Majority’s position rendered it impossible for an employer to ever succeed in a petition to terminate or modify benefits where there was no objective evidence to support the existence of claimant’s subjective complaints to begin with. After all, many, if not most, Termination Petitions are based upon a physician’s opinion that although claimant claims to have pain, there are no objective findings to substantiate those complaints and therefore claimant has fully recovered.

Subsequently, in Prebish, the Commonwealth Court noted that in light of Lewis, it is “abundantly clear” that a finding of fact must be made by the Workers’ Compensation Judge determining whether or not claimant’s condition had changed since the earlier WCJ’s decision.

In Prebish, the Claimant sustained a right knee injury acknowledged in the Notice of Compensation Payable as “right knee.” Eventually, Employer filed a Termination Petition. The WCJ found that claimant was not fully recovered. Since the NCP did not define the nature of injury, the Employer intended to accept a broad and expansive liability for the right knee. Approximately four years later, Employer filed a second Termination Petition. The IME physician testified that claimant had originally suffered from a sprain/strain of the right knee and had fully recovered. The physician further opined that claimant suffered from arthritis in both knees and that the condition pre-dated the work injury. It was the claimant’s pre-existing condition that explained claimant’s ongoing pain.

The Commonwealth Court remanded for additional findings regarding whether or not the IME physician’s testimony satisfied the Lewis burden. The Court noted that the IME physician had based his opinion in part on claimant’s current complaints of knee pain equal in both knees and upon his physical finding of identical findings in both knees. The first IME physician found complaints predominating for the right knee only. The Prebish court also noted that the second IME physician based his opinion in part upon medical records and a diagnostic study post-dating the first WCJ’s decision. Based upon these facts, the Court noted that a fact-finder could determine that claimant’s condition did not change materially since the first WCJ decision or could determine that claimant’s condition had changed and returned to baseline related solely to the preexisting arthritis present in both knees. 

What It Means to You

In both Lewis and Prebish, an important underlying issue was the amount of time between the successive defense petitions. In Lewis, the defense waited three days before filing the next Termination Petition and the Court refrained from addressing whether the timing of the defective petition evidences bad faith on the part of the employer. In Prebish, there was approximately four years in between the two petitions. To increase the chances of succeeding in a subsequent petition, there must be adequate time to gather potential ammunition that would allow a WCJ to determine that a “change in condition” had occurred since the earlier determination. It is clear that an IME physician merely stating that he saw no objective evidence to explain claimant’s subjective complaints is inadequate to meet this requirement. In fact, the filing of a Termination Petition based upon nothing more may raise an issue of having unreasonable contest attorney fees awarded since, even if the IME doctor is believed, the testimony will not meet the threshold. The workers' compensation attorneys at Cipriani & Werner are available to answer your defense petition questions.


Lewis v. WCAB (Giles & Ransome, Inc.), 591 Pa. 490, 919 A.2d 922 (2007); and Prebish v. WCAB (DPW/Western Center), No. 318 C.D. 2007 (July 14, 2008)