CompCORNER

CompCORNER - May 2007

SUPREME COURT OVERRULES
KING v. WCAB (K-Mart Corporation), 700 A2d. 431 (Pa. 1997)

      In a decision that will affect an employer's burden of proof in termination cases, the Pennsylvania Supreme Court has overruled its prior holding in King v. WCAB (K-Mart Corporation), 700 A 2d. 431(Pa. 1997). In Lewis v. WCAB (Giles and Ransome, Inc.), C 6 EAP 2006, the Claimant had originally been injured in October 1988. Before the Termination Petition which lead to the Supreme Court decision, the Employer had litigated and lost three previous such Petitions. In the first Termination Petition, Workers' Compensation Judge Burman concluded that the Employee was disabled as a result of a C8-T1 radiculopathy and an aggravation of an underlying congenital syrinx and Arnold Chiari formation. In the second Termination Petition, Workers' Compensation Judge Kelly added an L5-S1 radiculopathy to the earlier-described injuries. In the third Termination Petition, Workers' Compensation Judge Gagai again denied a Termination Petition and added a left knee injury to the description of injuryy.

      Shortly after the Workers' Compensation Appeal Board affirmed the decision in the third Termination Petition, a fourth such Petition was filed. In this case, the defense physician re-characterized the Employee's injuries as an acute cervical sprain and an acute lumbar strain which had healed. The defense physician denied that the syrinx and Arnold Chirai formations were aggravated by the work injury. The defense physician claimed that there was no evidence of radiculopathy. He also claimed that the knee injury was caused by arthritis not related to any work injury.

      Workers' Compensation Judge Shayhorn granted the Termination Petition, despite the fact that the defense physician re-characterized the work injuries in a manner inconsistent with prior judicial determinations. Appeals followed to the Workers' Compensation Appeal Board and Commonwealth Court. The Commonwealth Court found that the defense physician's change in description of Employee's injuries was not subject to issue preclusion. The Supreme Court granted review of the specific question of Awhether an employer must demonstrate a change in a claimant's physical condition since the preceding disability adjudication in order to bring a petition to terminate or modify benefits due to a decrease in physical disability.

      Employer relied on the King case for the proposition that an employer need not show an actual change in physical condition to support a termination petition. The Supreme Court found the four-part test in the seminal case Kachinski v. WCAB (Vepco Construction Company), 532 A 2d. 374 (Pa.1987) instructive. The first prong of Kachinski test states as follows:

"The Employer who seeks to modify a claimant's benefits on the basis that he is recovered, some or all of this ability must first produce medical evidence of a changing condition."
(Kachinski at 532 A 2d. at 380)

      The Court concluded that Kachinski required medical testimony of an actual change in physical condition to support a termination petition. It expressly dealt with its prior decision in the King case and concluded that it was Aan anomaly in our Workers' Compensation law. The Court, per Chief Justice Cappy, recited a long line of post- Kachinski cases which reiterated the need for establishing a change in condition to succeed in a modification petition.

      Many practitioners have considered the King case at variance with established jurisprudence in the area. King essentially eviscerated issue preclusion pertaining to prior adjudications between the parties. The Lewis court's conclusion that King constituted an anomaly in Workers' Compensation law is most welcome and broadly consistent not only with case law, but also with what lawyers have been taught about issue preclusion since law school.

      Defense medical practitioners will no longer be able to mischaracterize work-related injuries established in adjudications by Workers' Compensation Judges. Defense medical practitioners may no longer be able to ignore the description of injury on Notices of Compensation Payable. Certainly, defense medical practitioners will need to explain in some detail how an employee's condition has actually physically changed from a prior adjudication. This case likely ends the process whereby an employer uses the same physician for serial examinations and serial termination petitions. Practitioners would be advised to read Lewis closely in devising a series of questions for defense medical physicians where there has been previous litigation.