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The Pennsylvania Supreme Court made it tougher for employers to modify or terminate an injured employee’s workers’ compensation benefits last week. In Lewis v. WCAB (Giles & Ransome Inc), decided April 18, the Supreme Court held that in order to terminate or modify an injured worker’s benefits, an employer must provide unequivocal medical evidence that the claimant’s current physical condition is different than it was at the time of the last disability adjudication. The decision overturns their prior holding in King v. WCAB (K-Mart Corp.), which held that an employer need not show an actual change in physical condition; but, rather, a change in “disability.” In Lewis, the employer filed its fourth termination petition asserting that the claimant had fully recovered from his compensable injuries, which after three prior petitions was expanded to include a C8-T1 radiculopathy; an aggravation of a congenital syrinx and an Arnold-Chiari formation, an L5-S1 radiculopathy, and a left-knee injury. Three days after receiving an adverse decision on its third termination petition, the employer filed the fourth petition based upon an examination and opinion of its expert that the claimant suffered a cervical and lumbar sprain and strain which had fully resolved, had a Arnold-Chiari malformation and syrinx that was unrelated to the work injury, and found no objective evidence of an ongoing radiculopathy. After taking evidence, the WCJ granted the employer’s fourth termination petition finding the employer’s medical expert more credible than that of the claimant’s treating physician. The appeal board affirmed, as did Commonwealth Court, which held that the WCJ’s acceptance of the employer’s expert characterizing the claimant’s injuries was not barred by the res judicata effect of three prior termination petitions. The court rejected further the claimant’s arguments that the expert’s opinion failed to support a full recovery or that his opinions were equivocal. The employer argued before the Supreme Court that the prior determinations of the WCJ, appeal board, and Commonwealth Court were consistent with the Supreme Court’s decision in, which held that employers did not have to show an actual change in physical condition prior to proceeding on a subsequent petition for a termination of benefits. Instead, the employer argued that its burden was merely to show that any “disability” suffered by the claimant through his work injury ceased, or that any ongoing “disability” was due to reasons unrelated to the work injury. The Supreme Court rejected this argument. The Supreme Court held that in Kachinski v. WCAB (Vepco Construction Co.), which set forth a four-prong test for a modification or termination of benefits, the employer had the burden to first show that the claimant met a “change in condition.” The court held that a change in disability and a change in condition were not synonymous as the term “disability” used in the context of a workers’ compensation claim meant a loss of earning power, while a “change in condition” meant a change in the claimant’s well being that affects his/her ability to work. In reviewing the facts and evidence in Lewis, the Supreme Court determined that the employer failed to meet its burden of proof because its medical expert failed to demonstrate that there was a change in the claimant’s actual physical condition. Instead, the court found that the employer’s medical expert merely recharacterized the claimant’s injuries in a manner inconsistent with prior decisions; and, therefore, vacated the termination of benefits. The court also commented on the employer’s timing of the fourth termination petition, and suggested that attempts to file termination and/or modification petitions “within an unreasonably short period of time from the prior petition” may indicate bad faith on the part of the employer which would invalidate the petition on its face. However, the court decided not to address this issue as the employer never met its burden of proof in the first place. Nevertheless, the court’s dictum on the time of repeat petitions clearly sends a message to employers and their carriers. In a concurring opinion, Justice Cynthia Baldwin opined that while the result of the court was appropriate, its holding was “overbroad” as it effectively precludes an employer from succeeding in a termination petition where there is no objective evidence to support the existence of a claimant’s subjective complaints. Accordingly, Baldwin believes that the majority’s decision in Lewis runs afoul of the court’s holding in Udvari v. WCAB (USAir Inc.), which held that an employer’s burden is met by establishing that there are no objective medical findings which would either substantiate the claims of pain or connect them to the work injury. In another decision decided last week, the Supreme Court made it tougher for employers to modify a claimant’s disability status under the impairment rating guidelines even where the employer filed its request for an impairment rating evaluation before the expiration of the filing period under Section 306(a.2)(1) of the PAWCA. Dowhower v. WCAB (Capco Contracting)After taking evidence the WCJ concluded that the employer’s request for an IRE was untimely, as it was filed before the expiration of 104 weeks of temporary total disability benefits. The employer appealed the WCJ’s decision, and while it was being considered by the appeal board requested the bureau to appoint a physician for a second IRE, which was denied. Following the bureau’s denial of its request for a second IRE, the employer filed a modification petition asserting that the bureau improperly denied its request to have a second IRE. On this occasion, the WCJ granted the modification petition and ordered the bureau to appoint a physician for the second IRE request. The claimant appealed this decision, asserting that since the employer’s initial IRE had been untimely, the employer was precluded from requesting a second IRE. The employer also filed a petition for physical examination under Section 314 of the act, which the claimant refused to attend. The WCJ also granted this petition and ordered the claimant to attend the physical examination. This decision was appealed on the grounds that the initial IRE request was deemed untimely. As a consequence of the claimant continued refusals to attend physical examination, the employer filed a suspension petition. The WCJ dismissed the petition as the three prior petitions were pending before the appeal board and, therefore, the WCJ determined that he lacked jurisdiction. The employer appealed the dismissal of its suspension petition. The appeal board addressed all four petitions, and concluded that because the claimant submitted to the initial IRE, he waived any challenge as to the timeliness of the initial request. Accordingly, the appeal board reversed the WCJ’s decision that the initial IRE was untimely or invalid. The appeal board also opined that the WCJ’s decision granting the employer’s modification petition for a second IRE was moot by virtue of the fact that the claimant waived his challenge to the initial evaluation. The Commonwealth Court determined that the appeal board had erred in concluding that the claimant waived his challenge to the timeliness of the initial IRE. The court reasoned that the claimant was only aggrieved after he attended the IRE, when the employer sought to reduce his benefits. Therefore, the claimant did not waive the issue of timeliness. Nevertheless, the court held that because the employer’s request for an IRE occurred prior to the expiration of 104 weeks of temporary total disability benefits, the claimant was not prejudiced by the timing of the request; particularly in light of the fact that the actual medical examination did not occur until after 104 weeks. The Supreme Court granted the claimant’s petition for allowance of appeal and vacated and reversed the Commonwealth Court’s decision based upon its decision in Gardner v. WCAB (Genesis Health Ventures), which held that Section 306(a.2)(1) imposes mandatory obligations upon the employer/insurer seeking to obtain the automatic, self-executing reduction of a claimant’s benefits. On reconsideration, the Supreme Court expanded their holding by explaining that the employer’s failure to comply with the mandatory requirements of Section 306(a.2)(1) rendered any initial IRE request filed outside of the 60-day window following 104 weeks of temporary total benefit invalid, even in a situation where the request was filed within the 104 week period. The Supreme Court, however, held that because neither the appeal board nor Commonwealth Court addressed the issues surrounding the employer’s second request for an impairment rating, the matter must be remanded for further consideration based upon its holding in Gardner. In a dissenting opinion, Justice Ronald D. Castille argued that the General Assembly’s mandatory language was applicable only for initial requests made beyond 60 days following a claimant’s receipt of 104 weeks of temporary total disability benefits. He opined that it was absurd to hold that a premature IRE request precludes an employer from an evaluation; particularly, when the actual medical evaluation occurs after the expiration of 104 weeks of temporary total disability benefits. In a dissenting opinion, Justice Michael Eakin argued that the claimant waived his objection to the timeliness of the IRE by attending the examination. Moreover, Eakin opined that the language of Section 306(a.2)(1) was intended to have the employer make the relevant request promptly. While these two recent decisions make it tougher for employers to limit or terminate workers’ compensation claims, they do not preclude remedies if proper care is taken prior to the filing of petitions. The Lewis decision brings the employer’s burden back to where it was prior to the Supreme Court’s decision in King. Opinions from expert witnesses regarding the change in condition will require an explanation as to the relevant charges in a claimant’s physical impairment for injuries accepted as compensable. This could be accomplished by having the expert specifically explain how his current evaluation differs from past examinations. The differences could include objective diagnostic testing, or clinical testing, or the absence of clinical signs that would support subjective complaints. In requesting IREs it is essential to assure that the timeframes are accurately calculated as the court now has opined that the filing provisions are mandatory regardless of circumstance. There have been attempts in the Legislature to amend the wording of Section 306(a.2)(1) to allow employers to seek initial request for an IRE at any time following receipt of 104 weeks of temporary total disability benefits by the claimant. Given the latest decision in Dowhower, employers can only hope that this amendment becomes a reality. DANIEL V. DILORETTO practices in the workers’ compensation law practice areawith Harvey Pennington in Philadelphia. He has developed extensive experience in the defense of workers’ compensation litigation, as wellas related employment issues such as the Americans with Disabilities Act, and the Family and Medical Leave Act. He can be contacted at [email protected].

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