Previously, we have discussed “reported” cases versus “non-reported” cases, and how each can be used (the Courts have now started to use the terms “precedential” versus “non-precedential”). Since they are not binding on a Workers’ Compensation Judge (WCJ), we rarely discuss non-precedential (or “non-reported”) cases on our blog. However, when we see a decision in an important area of law, it can be helpful to explore how Courts are treating the law (and the previous cases).
Several years ago, the Supreme Court of Pennsylvania decided the case of Lewis v. Workers’ Compensation Appeal Board (WCAB). This case was critical for the rights of injured workers in Pennsylvania, as it kept the workers’ comp insurance carriers from being able to file Termination Petition after Termination Petition, for little purpose other than to harass and annoy the injured worker. Instead, as logic would dictate, the insurance company would have to show that there was actually a change in the condition of the injured worker before the insurance carrier could win a subsequent Petition for Termination (after litigating, and losing, a previous Petition for Termination).
As we noted on our blog, this was followed by some indication that PA Courts would undermine the concept, and allow a Termination of workers’ compensation benefits, even after litigation of a previous Termination Petition.
Which is what leads us to note a non-precedential decision, Township of Lower Makefield and Delaware Valley Workers’ Compensation Trust v. Workers’ Compensation Appeal Board (Stewart). Here, the injured worker suffered (what was accepted by the workers’ comp insurance company as) a low back strain in 2003. In 2014, a WCJ denied Defendant’s Petition for Termination, finding that the work injury had not fully resolved. The insurance carrier then filed another Petition to Terminate in 2016. Each side used the same doctors as in the prior litigation. Indeed, the doctor presented by the insurance company admitted that there was no change in the condition of the injured worker from the prior evaluation. A WCJ this time granted the Petition for Termination, finding that the injured worker had fully recovered from his work-related injury.
On appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the Termination of benefits. “The Board reasoned that, as Employer’s prior termination petition was denied, Employer bore the burden of proving a change in Claimant’s condition since that adjudication.” This burden was not met (especially since Defendant’s own medical expert admitted that there was no change in the condition of the injured worker).
On further appeal, the Commonwealth Court of Pennsylvania agreed with the WCAB. Though there was sufficient evidence in the record to support a termination of benefits in general, the Termination Petition must fail in this case because, “The Second WCJ was required to make a factual finding that Claimant’s physical condition changed from the time of the last disability adjudication.” The Court went on to state, “When seeking to terminate benefits on the basis that a claimant’s medical condition has improved, ‘the employer bears the burden of demonstrating actual physical improvement.’” This was in no sense met here. It is heartening for us, as attorneys who represent injured workers in PA, to see that the meaning and impact of the Lewis decision remains in effect (even in a non-precedential case).