Fried, Kane, Walters, Zuschlag and Grochmal 625 Stanwix Street, Suite 1404
Pittsburgh, PA 15222
Phone 412-261-4774
Fax 412-261-1225

COMMONWEALTH COURT LIMITS APPLICATION OF LEWIS AND AFFIRMS DECISION GRANTING EMPLOYER’S PETITION FOR TERMINATION.

See: Folmer v. WCAB (SWIFT Transportation), 958 A.2d 1137 (Pa. Cmwlth. 10/22/08)

Since the Pennsylvania Supreme Court Decision in Lewis v. WCAB (Giles & Ransom, Inc.), 919 A.2d 922 (2007), Claimants have been aggressively challenging Petitions for Termination. Fried Kane remained dedicated to pursuing termination of benefits where appropriate and in Folmer succeeded in defeating Claimant’s argument.

In Folmer, Claimant sustained a work injury on October 23, 1995 when he was struck in the face by a box of crowbars. He subsequently filed a Claim Petition which was granted by the WCJ. The WCJ found Claimant’s injury consisted of “positional vertigo, cervical disc syndrome or cervical myalgia and tension headache.”

In June 2001, the Employer filed its first Petition for Termination alleging that Claimant had fully recovered. Claimant defended against the petition by presenting testimony from three medical experts. In denying the Petition for Termination, the WCJ explained “this is a close case to decide although at this time I am willing to give the Claimant the benefit of the doubt… without more recent diagnostic testing of EMG and nerve conduction studies and/or vestibular testing, I am not persuaded or convinced the Claimant has fully recovered from all of his compensable work injuries…”

In August 2004, Employer filed its second Termination Petition averring that Claimant had fully recovered as of December 11, 2003. Employer presented testimony from two medical experts: Howard Senter, MD and John Talbott, MD. The Judge accepted such testimony as credible and granted the Petition for Termination.

On appeal, the Court again reviewed the Lewis criterion. The Court explained that the Supreme Court in Lewis was concerned that an Employer filing serial Termination Petitions would re-characterize or disregard the prior adjudicated facts in order to realize a favorable outcome. The Court explained “it goes without saying that an Employer may not, for example, present expert testimony that a Claimant’s condition, which is unchanged, is not actually work-related as previously adjudicated. Rather, the Employer must accept the adjudicated condition and prove recovery from it at a later date; this is what is meant by showing a physical change of condition.”

In the instant case, the Court concluded that the Employer had met such burden of proof. First, the Court concluded that Employer presented medical evidence that showed a “change in the Claimant’s physical well being that affects his ability to work.” The Court noted that Employer’s case had to begin with the adjudicated facts found by the WCJ in the first Termination Petition and work forward in time to show the required change. The Court cited findings of Claimant’s medical experts in the first adjudication regarding mild nystagmus and taut neck muscles. It was noted that neither Dr. Senter nor Dr. Talbott found nystagmus and instead found Claimant’s neck muscles to be normal, not taut. They deemed such evidence demonstrative of change in physical condition. The Court stated that any other holding would mean that an Employer could never terminate benefits where, as here, Claimant’s injuries consist primarily of subjective complaints and the credited evidence shows that Claimant is faking.

In making such analysis, the Court rejected Claimant’s argument that for an Employer to show a change in condition from symptoms without objective support, Employer’s case was limited where it would need to prove Claimant no longer had complaints, Claimant discontinued medical treatment, Claimant’s own doctor believed he recovered, or surveillance video tape showed the Claimant engaging in activities beyond his abilities. The Court flatly rejected such argument. Instead, the Court noted that the case boils down to the WCJ’s credibility determinations. The Court concluded that in the first termination proceeding, Claimant was found to be suffering pain, and in the second proceeding he was found to be free of pain.

Claimant’s second argument was Employer failed to meet its burden of proof because the medical experts did not acknowledge the accepted work injury. Again, the Court rejected this argument and noted that each medical expert addressed the adjudicated injury as well as observations made by Claimant’s medical experts in the first termination proceeding even when they went beyond the accepted work injuries. It was highlighted that Dr. Senter specifically checked to see if Claimant continued to suffer from positional vertigo as a result of cranial nerve compression, cervical disc syndrome or cervical myalgia and opined Claimant did not have any such mechanical or neurological impairment. The Court further found that the doctor’s opinion regarding headaches was sufficient to support a termination. The doctor conceded that he has no way of knowing that the patient does not have a headache. He acknowledged that Claimant could have suffered post traumatic or tension headaches. However, where Claimant did not report tension headache but only migraine headache, the doctor explained migraines could not be related to the work injury.

In reviewing the testimony of Dr. Talbott, the Court acknowledged that the physician did not believe Claimant damaged any of his cranial nerves in a work incident. The Court explained it is irrelevant whether Dr. Talbott actually believed Claimant ever damaged his eighth cranial nerve. “A medical professional is not required to believe a condition existed; he is merely required to accept it is true the adjudicated fact that a condition existed and opine as to whether the condition continues to exist at the time of the examination.” Where the doctor tested for vertigo resulting from compression of the eighth cranial nerve and did not find it, the Court concluded such testimony supported Employer’s burden of proof. Moreover, although Dr. Talbott believed Claimant had fully recovered in 2000 based on an initial IME, there was no evidence that he disregarded the Judge’s adjudicated facts in the first Termination Petition and his opinion regarding full recovery was corroborated by his 2005 exam.

Accordingly, where both physicians acknowledged each and every one of Claimant’s adjudicated work injuries and testified that Claimant was fully recovered, their testimony was fully competent to meet Employer’s burden of proof for a termination of benefits.

The Court’s decision thus establishes a reasonable burden of proof and rejected extreme arguments made by Claimant’s bar. The Employer must acknowledge injury as described in prior adjudications and establish Claimant has fully recovered from the same. A change of condition is established where Employer’s medical expert does not find abnormalities on exam noted by Claimant’s medical expert in prior litigation.

Practice Pointer: Folmer confirms that Petitions for Termination remain a viable tool in ending workers’ compensation liability. A physician must be able to testify to a change in condition.

When scheduling an IME, it is important to advise the doctor as to the nature of the accepted work injury as found in any prior adjudications. You should affirmatively ask the doctor to advise whether there has been a change in physical conditions since prior determination. So that there is no confusion, a copy of the prior determination should be sent. The doctor should be asked to outline his examination findings. If a physician believes Claimant is fully recovered from a work injury, the physician should be able to testify to a change in condition. Comparison can be made to pre-exam office notes, testimony and/or diagnostic studies.