Change of Condition Shown in Modification After Termination

Several years ago, injured workers in PA were benefited by the decision of the Supreme Court of Pennsylvania in the case of Lewis v. Workers’ Compensation Appeal Board. This case held that a workers’ comp insurance carrier in PA had to prove there was a change of condition of the injured worker, after the insurance company had lost a Petition for Termination, before the insurance carrier could be successful on another Petition for Termination. This was designed to curb the malicious practice in the insurance industry of filing petitions one after the other, without any real basis.

This issue was recently addressed by the Commonwealth Court of Pennsylvania, but here it was a Petition for Modification which followed the Petition for Termination. In Simmons v. Workers’ Compensation Appeal Board (Powertrack International), the injured worker suffered a closed head injury resulting in post-concussion syndrome, in 2001. Two Petitions for Termination were denied by Workers’ Compensation Judges (WCJs) in the ensuing years.

Trying a different strategy, the workers’ comp insurance carrier filed a Petition for Modification, based on a Labor Market Survey (LMS). [We have discussed the LMS process previously, and relayed our dissatisfaction with using representative, hypothetical jobs to stop or reduce the very real money received by injured workers in PA]. This time the insurance company was successful, and the WCJ found the experts offered by the insurance carrier (medical and vocational) more credible than those offered by the injured worker. As a result, the WCJ granted the Petition for Modification, and ordered the workers’ compensation benefits modified, based on the highest paying job in the LMS. This was affirmed by the Workers’ Compensation Appeal Board (WCAB) on appeal.

The injured worker then appealed to the Commonwealth Court of Pennsylvania, saying that the Petition for Modification could not be granted, because the workers’ comp insurance carrier failed to show a change in condition since the last Petition for Termination was denied. The Court rejected this argument and affirmed the decision of the WCJ. While the Petition for Modification here did require a change in condition be shown, it may be a lighter burden than when a Petition for Termination follows a Petition for Termination (rather than Modification). In a Termination, the relevant findings are whether the injury has fully resolved; in a Modification, the relevant findings are whether work is available within the physical capacities of the injured worker. There may not be similar findings to compare between the two litigations.

Regardless, the Court found that the credited testimony of the expert witness offered by the workers’ comp insurance carrier did show that the condition of the injured worker had improved since the last litigation. As such, said the Court, the insurance carrier met its burden and the Petition for Modification was properly granted.