LEWIS v. WCAB - CAN IT APPLY TO AN INITIAL TERMINATION PETITION?
The readers are familiar with Lewis v. WCAB, 591 Pa. 490, 919 A.2d 922 (Pa. 2007). In Lewis, the claimant had defended serial termination petitions during which he was successful in obtaining review of the description of injury. At the conclusion of the third Termination Petition, claimant had established that his injury included a C-8 to T-1 radiculopathy, an aggravation of a congenital syrinx, an aggravation of an Arnold-Chiari formation, an L5-S1 radiculopathy and a left knee injury. Three (3) days after the Appeal Board Decision affirming the denial of the third Termination Petition, the employer filed a fourth Termination Petition. The fourth Petition was assigned to Judge Harry Shayhorn. The employer's expert witness described claimant's work injuries as limited to an acute cervical spine sprain and an acute lumbar sprain which had healed. Judge Shayhorn granted the Termination Petition. Claimant's appeal eventually reached the Supreme Court where the Supreme Court applied the standards of Kachinski vs. WCAB, 516 Pa. 240, 532 A.2d 374 (Pa. 1987) to Termination Petitions. While Kachinski dealt with Modification Petitions, the Supreme Court had concluded in that case that an employer must demonstrate medical evidence of a change in condition in either a Modification or Termination Petition. The Supreme Court determined that Kachinski controlled in Lewis and found that to succeed in terminating a claimant's benefits, the employer must demonstrate a change in physical condition. See Lewis at 926.
Subsequent Commonwealth Court cases have dealt with Lewis in the context of serial termination petitions. See for example, Prebish vs. WCAB (DPW/Western Center) , 954 A.2d 667 (Pa. Cmwlth. 2008), Fulmer vs. WCAB (Swift Transportation) , 958 A.2d 1137 (2008 Pa. Cmwlth.). However, there is language in Lewis which suggests the principles of Lewis can be used in a defense against an initial termination petition. Considering the following from Lewis:
"In order to terminate benefits on the theory that a claimant's liability has reduced or ceased due to an improvement of physical disability, it is first necessary that the employer's petition be based upon medical proof of a change in the claimant's physical condition. Only then can the Workers' Compensation Judge determine whether the change in physical condition has effectuated a change in the claimant's disability, i.e., the loss of his earning power. Further by natural extension, it is necessary that where there had been prior petitions to modify or terminate benefits, the employer must demonstrate a change in physical condition since the last disability since the last disability determination."
The emphasized language is very important. This suggests that the burden to show a change in condition in serial termination petitions is in itself merely an extension of the burden of proof in initial termination petitions. Although the language is dicta, it may well provide insight into the Supreme Court's thinking in this matter. When faced with inadequate defense medical testimony regarding a change in condition, practitioners may wish to cite Lewis as requiring the change in condition in any termination petition, not merely one where there has been prior litigation.
QUERY: MAY LEWIS BE USED TO DEFEND AGAINST EARNING POWER ASSESSMENTS?
Earning power assessments essentially involve a petition to modify or suspend. Section 306(b)(2) of the Act states as follows:
"Earning Power shall be determined by the work the employee is capable of performing and shall be based upon expert opinion evidence which includes job listings with agencies of the Department, private job placement agencies and advertisements in the usual employment area. Disability partial in character shall apply if the employee is able to perform his previous work or can considering the employee's residual productive skill, education, age and work experience, engage in any other kind of substantial gainful employment which exists in the usual employment area in which the employee lives within this commonwealth . . . "
Consider also Section 306(b)(3):
"If the insurer receives medical evidence that the claimant is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the Department, to the claimant, which states all of the following: (i) the nature of the employee's physical condition or change of condition."
Kachinski and Lewis make it clear that an employer must show a change in condition to prevail in either a modification or termination petition. Given the holdings in these cases and reading Section 306(b)(2) and (3) together, claimants may argue that an earning power assessment requires medical testimony of a change in condition in order for employers to prevail.
Since employers are required to notify a claimant of a change in his condition before it can pursue a modification or suspension of benefits, [see Allegis Group vs. WCAB (Henry) , 882 A.2d 1 (Pa. Cmwlth. 2005),] why should not the employer be required to show a medical change in condition during the actual litigation?
