CompCORNER

CompCORNER - December 2007

APPELLATE COURTS CONTINUE TO TIGHTEN
BURDEN OF PROOF IN TERMINATION PETITIONS

      In a continuation of a recent trend, Commonwealth Court has further delineated the Employee's burden of proof in a Termination Petition in the case of Elberson v. WCAB (Elwyn, Inc.), 2408 C.D. 2006, September 10, 2007. Earlier in 2007, the Pennsylvania Supreme Court in Lewis v. WCAB, 919 A.2d 922 (Pa. 2007) determined that a defendant must show an actual change in physical condition to support a termination petition. The prior Supreme Court decision of King v. WCAB was overruled and found to be an anomaly in our Workers' Compensation Law.

      The Commonwealth Court in Elberson has found that the Defendant's expert must deal directly with the recognized injury from the Notice of Compensation Payable. In Elberson, the Claimant was injured on March 17, 2001. The Notice of Compensation Payable described the injury as a herniated nucleus pulposus at L4-5. The Claimant was sent to Howard H. Steel, M.D. who offered an opinion that the Claimant was fully recovered from her work-related injury. Claimant's benefits were terminated by the Workers' Compensation Judge and the termination was sustained on appeal to the Workers' Compensation Appeal Board.

      Claimant had argued to the Appeal Board that Dr. Steel's testimony was not sufficient to support a termination, as the physician did not address the herniated nucleus pulposus at L4-5. The Commonwealth Court, per Judge Pellegrini, found this argument persuasive. Dr. Steel had testified that AI didn't know what her injury was. But I would infer from what I saw her, when I saw her, that she had a sprain or strain of her back. Judge Pellegrini determined that said testimony was insufficient to support the termination. He declared, AAt a bare minimum, the expert must know what the accepted work-related injury was to be competent to testify that a claimant has fully recovered from a work-related injury. Judge Pellegrini continued the reasoning first noted in G.A. and F.C. Wagman, Inc. v. WCAB (Aucker), 785 A.2d 1087 (Pa. Cmnwlth. 2001) and later enunciated in Gillyard v. WCAB (Pennsylvania Liquor Control Board), 865 A.2d 991 (Pa. Cmmwlth. 2005).

      A dissent by Judge Leavitt claimed that Dr. Steel had acknowledged that the Claimant had a herniated disc. This appears to fly in the face of the above-quoted language from Dr. Steel, indicating the Claimant had a sprain or strain.

      The Defendant has requested allocatur from the Pennsylvania Supreme Court.

'TIS THE SEASON FOR GIVING

      As this is written, many of you readers are occupied with the Christmas season. You give to your families, to your clients and to your favorite charities. I feel compelled to ask on behalf of another object of your giving. I urge all readers to contribute to LawPAC, if they do not yet do so. If you do, I encourage you to increase your contribution. LawPAC allows us to serve our clients beyond the individual case and beyond litigation. It helps ensure the election of pro-consumer and pro-worker candidates throughout the Commonwealth. In this day, our obligations to our clients go beyond the individual case and require us to seek justice for them beyond the litigation setting. Much of what happens to our clients is determined in the halls of the legislature and in our appellate courts. Through LawPAC, we have an impact on how laws are made and how laws are interpreted. There are few bodies out there today to advocate on behalf of working people. We as trial lawyers have stepped to the front of that battle and must continue to do so. LawPAC is the means of preserving for our clients their rights in fields beyond the areas of litigation. I urge you all to join and contribute.