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TERMINATING COMPENSATION BENEFITS IN PENNSYLVANIA
By Kevin L. Connors, Esquire
“I’m never going to be disabled. I’m sick of being so healthy.”
Thank you, Homer Simpson.
“All my life I’ve had one dream, to achieve my many goals.”
Thank you again, Homer!
With those self-evident truths behind us, we can now focus on the recent Decision of the Commonwealth Court inBaumann v. WCAB, decided on September 23, 2016.
This Decision is relevant why?
Because, the Commonwealth Court addressed the burden of proof that an Employer carries when seeking to terminate workers’ compensation benefits requiring proof that there has been a change in the Claimant’s physical condition from a prior Independent Medical Examination under Lewis v. WCAB, 919 A.2d 922 (Pa. 2007).
All of us will recall the Pennsylvania Supreme Court’s Decision in Lewis, in which the Court had held:
In order to terminate benefits on the theory that the Claimant’s disability has reduced or ceased due to improvement of physical ability, 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 WCJ 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 have been prior Petitions to… terminate benefits, the Employer must demonstrate a change in physical condition since the last disability determination.
In so holding, the Lewis Court had explained:
Absent this requirement “a disgruntled Employer… could repeatedly attack what he considers an erroneous Decision of a WCJ by filing Petitions based on the same evidence ad infinitum, in the hope that one referee would finally decide in his favor., citingDillon v. WCAB, 640 A.2d 386 (Pa. 1994).
In Baumann, the Claimant sustained a right shoulder and upper back injury as a result of a car accident in 2007. The claim was accepted as compensable by the Employer, with workers’ compensation benefits being paid to the Claimant.
In 2008, under a WCJ Order, the Claimant’s injury description was amended by Stipulation to include right C-6 radiculopathy.
In 2009, the Employer sought to terminate the Claimant’s compensation benefits in reliance upon an Independent Medical Examination performed by Dr. Richard Bennett, a board-certified neurologist.
In opposition to the Employer’s Termination Petition, the Claimant testified that he was not fully recovered from the work injury, and he presented the deposition testimony of his orthopedic surgeon, Dr. Norman Stempler.
The Employer’s Termination Petition was then denied by the Honorable Bruce Doman in a Decision issued in 2009.
In 2010, the Claimant again underwent a second Independent Medical Examination performed by Dr. Bennett, with Dr. Bennett again finding that the Claimant was fully recovered from the work injury, resulting in the Employer filing a second Termination Petition, in reliance upon Dr. Bennett’s full recovery opinions.
The second Termination Petition was then litigated before the Honorable Tina Rago, with there also being an Employer Modification Petition, and a Claimant Penalty Petition.
In support of the Termination Petition, Dr. Bennett’s testimony was again presented, with the Claimant testifying, both at deposition and live before the WCJ, that he was continuing to see Dr. Stempler, but that he was not actively treating for his work injury. The Claimant also testified that he continued to have pain in his shoulder and neck, and that his activities of daily living were significantly limited.
In 2011, the WCJ found the Claimant’s testimony of ongoing shoulder pain was not credible, since the Claimant was not actively treating for it, and that the activities that the Claimant did testify to, including playing guitar and video games, as well as getting several tattoos on his arms, evidenced that the Claimant was fully recovered from the work injury, conclusions supported by the Independent Medical Examination opinions of Dr. Bennett.
Granting the Termination Petition, the WCJ also granted the Claimant’s Penalty Petition, finding that the Employer had violated the Act by failing to pay for the Claimant’s shoulder surgery, although a 0% penalty was assessed with the granting of the penalty.
No surprise that the Claimant then appealed with WCJ’s Decision at the Appeal Board, with the Board remanding the matter back to the WCJ, to determine whether the Employer had met his burden of proving that the Claimant’s medical condition had changed between the denial of the 2009 Termination Petition, and the granting of the 2010 Termination Petition.
In a Decision then issued in 2014, the WCJ again granted the Employer’s Termination Petition, as well as granting the Penalty Petition, in the course of which the WCJ found that the failure to pay for the Claimant’s shoulder surgery was not sufficiently significant to warrant more than a 0% penalty.
The WCJ’s Decision was then appealed to the Appeal Board, which affirmed the WCJ’s Decision, resulting in the Claimant appealing the Decision to the Commonwealth Court.
Recognizing that the evidence necessary to prove a change from a prior adjudication “will be different in each case,” the Commonwealth Court held that the WCJ is empowered to accept the Employer’s medical evidence of full recovery as being credible, allowing the WCJ to make a finding that the Employer has met the standard set forth underLewis to prove a change in a Claimant’s condition, as a prerequisite to granting a Termination Petition.
Affirming the granting of the Termination Petition, the Commonwealth Court held that “it is not necessary for the Employer to demonstrate that the Claimant’s diagnoses have changed since the last proceeding, but only that his symptoms have improved to the point where he is capable of gainful employment.” Simmons v. WCAB, 96 A.3d 1143 (Pa. Cmwlth. 2014).
The Baumann Court held that a change sufficient to satisfy the Lewis requirement exists if there is a lack of objective findings to substantiate a Claimant’s continuing complaints.
Analyzing the WCJ’s findings, the Baumann Court specifically noted that the WCJ had found the Claimant’s testimony, as to his activities in relation to his shoulder pain, to be “incredible”, and that the Claimant’s lack of any active medical treatment since 2009, supported the IME’s physician’s conclusion that the Claimant had fully recovered from the work injury.
Finding that there was substantial evidence to support the WCJ’s conclusion that the Employer had proved that there was a change in the Claimant’s physical condition between the 2009 Decision and Judge Rago’s 2010 Decision, the Commonwealth Court affirmed the granting of the Termination Petition.
As for the Penalty Petition, the Commonwealth Court also agreed with both the WCJ and the Appeal Board, finding that when a Claimant has satisfied their burden of proving a violation of the Act, the amount of penalties to be imposed for that violation are left within the sole discretion of the WCJ. Indiana Floral Co. v. WCAB, 739 A.2d 984 (Pa. Cmwlth. 2002).
Noting that the WCJ had awarded a 0% penalty in reliance upon the Claimant’s own incredible testimony concerning his pain levels and activities, as well as his intercontinental travels and tattoos, the Commonwealth Court found no error in the WCJ’s Decision, or the Appeal Board’s conclusion to affirm the WCJ’s Decision to assess a 0% penalty against the Employer.
Tough case with familiar faces.
Two different WCJ’s, two different results.
Two very well-used physicians, both marginalized by their respective orientations, albeit disabled or recovered.
So, what was the tie-breaker?
Like Homer Simpson says, “if something’s hard to do, then it’s not worth doing.”
As backwards as Homer’s logic sometimes seems, elusive truths survive every fall.
Trust us, we just get it! It is trust well spent!
We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania. We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.
Every member of our Workers’ Compensation practice group is AV rated. Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.