Bad Faith Finding in Modification Petition Causes Increased Burden of Proof For Reinstatement in PA Workers’ Comp

Ordinarily, when an injured worker in Pennsylvania has his or her workers’ compensation benefits modified or suspended, such as by a return to work, having the benefits reinstated to total disability is not difficult provided that the loss of such work is not due to the fault of the injured worker, and the work-related disability continues.

The situation is much different, however, when the injured worker’s PA workers’ comp benefits are modified or suspended due to “bad faith conduct.” As explained by the Commonwealth Court of Pennsylvania in a recent case, Ward v. Workers’ Compensation Appeal Board (WCAB), decided on March 2, 2009, if the injured worker’s benefits were modified due to bad faith, then the injured worker has the burden to prove his or her medical condition worsened such that he or she is no longer capable of performing the job which had previously been found to be available.

The claimant in Ward was injured in 1992. In 1999, the PA workers’ comp insurance company was successful in litigating a Petition to Modify benefits. Specifically, the Workers’ Compensation Judge (WCJ) found that jobs were available to claimant, within his physical restrictions, but that he did not apply for the jobs. The WCJ ordered the total disability benefits modified to “partial disability benefits.”

In 2006, the claimant filed a Petition to Reinstate his total disability benefits. This Petition failed, because no medical expert testified that claimant’s condition had changed such that he was no longer capable of performing the job the WCJ found to be available to claimant back in 1999. Had claimant returned to work, rather than having this “bad faith” finding against him, reinstatement may have been considerably easier.

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