CompCORNER

CompCORNER - February 2008

COMMONWEALTH COURT CONTINUES TO TIGHTEN
BURDEN OF PROOF IN TERMINATION PETITIONS

      In the last issue of the ADVOCATE the author reported on Elberson v WCAB (Elwyn) 2408 CB 2006, September 2007. In Elberson the Commonwealth Court determined that to meet the burden of proof in a Termination Petition the defense expert must deal directly with the injury as described on the Notice of Compensation Payable. The Commonwealth Court has continued the recent trend of tightening requirements in Termination Petitions in Westmoreland County v WCAB (Fuller) 1277 CB 2007, January 24, 2008. In Fuller the Claimant suffered a work related injury in 1994 while moving a patient in her position as nurses’ aide with the defendant. The defendant filed a Termination Petition in 1998 where the Judge found that the Claimant had not fully recovered. The Workers’ Compensation Judge accepted as credible the Claimant’s treating doctor’s testimony that Fuller experienced a herniated L4-5 disk and post traumatic lumbar radiculopathy either caused or aggravated by the work injury. The injury was described as a lumbar strain on the Notice of Compensation Payable. While the Judge accepted the Claimant’s medical testimony as credible, she did not formally amend the description of injury.

      A second Termination Petition was filed in 2003. The defense expert testified that the Claimant’s work injury was a back strain from which Fuller was fully recovered. The Judge accepted this testimony and terminated benefits. The Claimant appealed to the Board alleging certain issues not relevant to the ultimate holding of Commonwealth Court. The Board remanded the Termination Petition and said Petition was reassigned to the Judge who had rendered the decision in the first Termination Petition in 1998. She found that the defense expert’s testimony regarding a back strain was insufficient to support a termination of benefits given the prior decision.

      Employer appealed to the Board which affirmed. It then appealed to the Commonwealth Court alleging that Workers’ Compensation Judge committed error in finding defense medical testimony insufficient to support the termination.

      Defendant argued that the Judge could not find that the decision in the first Termination Petition expanded the description of injury per the Notice of Compensation Payable. It argued that even if the first Termination Decision did expand the description of injury, the testimony presented was adequate to support a termination. Defendant’s expert, the well-known D. Kelly Agnew, M.D., testified that Claimant had recovered from “any low back injury sustained on September 17, 1994.”

      The Court considered whether the initial termination decision expanded the description of injury. It noted that the Claimant can file a Petition to Review or Modify the Notice of Compensation Payable pursuant to Section 413A of the Workers’ Compensation Act. It also noted that a Judge is authorized pursuant to Section 413 to modify the Notice of Compensation Payable in the course of proceedings before the Judge. The Court noted that the Judge had authority to do this only when the injuries claimed existed at the time the Notice of Compensation Payable was originally issued.

      The Court concluded that the Workers’ Compensation Judge had “implicitly amended the notice under Section 413 of the Act to include injuries as part of the NCP.” Therefore, practitioners will need to examine findings of fact in each litigation closely. If the Judge accepts testimony from a medical witness and cites thereto in the findings of fact which is more expansive or different from the language of the Notice of Compensation Payable, the description of injury has been effectively modified pursuant to this case. Defendants will not be able to terminate benefits based on the description on the Notice of Compensation Payable even if prior litigation has not expressly modified the injury description.

SUPREME COURT NIXES END RUN ON SUBROGATION

      In a previous column the author had written about Gillette v Wurst, 869 A.2d 48, (Pa. Super 2005) where the Superior Court has upheld an enterprising avoidance of the subrogation provisions of the Workers’ Compensation Act. A plaintiff’s decedent was shot and killed by a student while chaperoning a dance. The plaintiff was to receive $288,000 from settlement of the claim. The plaintiff disclaimed her right to any share of the settlement with the exception of $12,000 with the remainder to be distributed among her children. The Trial Court concluded that plaintiff’s decedent was entitled to recover under the wrongful death statute could agree on a different manner of distribution.

      The workers’ compensation carrier maintained that intestate distribution under the wrongful death statute was mandatory. The Superior Court found that individuals may disclaim under intestacy, since plaintiff’s decedent had disclaimed except for receipt of $12,000, the subrogation could not lie beyond that amount.

      The Supreme Court reversed the Superior Court. It concluded that the insurer was able to subrogate “the . . . share that Gillette had the right to receive.” (emphasis in original) The Court cited to the seminal wrongful death/intestacy case of Seymour v Rossman, 297 A.2d 804 (Pa 1972). It concluded that a Plaintiff under the Wrongful Death Statute “may not then disclaim entitlement to the award and thereby defeat the right of subrogation under Section 671.“