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


See: Prebish v. WCAB (DPW/Western Center), 954A.2d 677 (Pa. Cmwlth. 7/14/08)

Fried Kane has been in the forefront of litigation regarding an Employer’s burden of proof on a Petition for Termination and interpreting the Pennsylvania Supreme Court Decision of Lewis v. WCAB (Giles & Ransome, Inc.), 919 A.2d 922 (Pa. 2007).

The problem arose in 2007 when the Supreme Court announced “Where an Employer seeks to modify or terminate benefits on the basis the Claimant’s medical condition improved, reducing his disability, the Employer bears the burden of showing actual physical improvement.” Lewis The Commonwealth Court then reversed multiple decisions granting Petitions for Termination concluding that the Employers had not shown a change in condition.

In Prebish, litigated by James Hudzik, Claimant again argued that the Employer had not met its burden of proof on the Termination Petition because the Employer had not established a change in Claimant’s condition from an earlier decision which found Claimant had sustained a “serious and disabling right knee injury.” The Court rejected Claimant’s argument but noted that the WCJ needed to address whether Claimant’s condition had materially changed.

Claimant had sustained a right knee injury on February 8, 1993. In June 2000, Defendant filed its first Petition for Termination alleging full recovery. Claimant filed an Answer denying the allegation, a Review Petition alleging that the NCP should be amended to include a right ankle injury and a Claim Petition alleging he sustained left and right knee injuries “to the patella and other structures.” All petitions were consolidated.

In April 2002, the WCJ denied all petitions concluding that Defendant had not meet its burden of proof on a Termination Petition; the Claim Petition was time barred; and Claimant had not met his burden of proof on a Petition to Review by failing to establish that the NCP was materially incorrect. The WCJ further found that where NCP identified injury as “right knee injury” and “did not define the injury as a sprain, strain, contusion or otherwise limit the description of injury. Therefore, I infer that Employer intended to accept broad and expansive liability for a right knee injury.” The WCAB affirmed the Judge’s decision and no further appeals were taken.

In November 2004, Employer filed its second Petition for Termination again alleging that Claimant had fully recovered as of September 28, 2004. Claimant again denied the allegation and further argued that the doctrine of res judicata barred the Employer from re-litigating the issue of full recovery because the IME did not establish a change in Claimant’s physical condition since the first WCJ Decision.

The WCJ granted Employer’s second Petition for Termination. The WCJ accepted as credible the testimony of Dr. Thomas, Employer’s medical expert. Dr. Thomas opined that Claimant had recovered from his sprain/strain, there was no evidence of aggravation and noted Claimant’s knee complaints were the same bilaterally as were exam results. Regarding the prior Judge’s finding that Employer had accepted a broad definition of injury to the knee, the second WCJ concluded that Employer had the burden of proving Claimant had fully recovered from a right knee injury and there was nothing wrong with the knee or remaining abnormalities related to the work injury. The Judge concluded Employer met such burden of proof. The Judge further concluded that res judicata did not apply where the newest petition alleges full recovery four years after the prior alleged date of recovery.

The Court reviewed the case of Lewis and noted to meet its burden under the first prong of Kachinski, an Employer need only adduce medical evidence that the Claimant’s current physical condition is different then it was at the time of the last disability adjudication. The Court noted it is not sufficient nor is it proper for an Employer to challenge the diagnosis of a Claimant’s injuries as determined by a prior proceeding. The Court noted it is unclear from the second WCJ findings whether Employer’s physician’s testimony satisfies the standard set forth in Lewis, i.e., whether Claimant’s physical condition changed from the time of the first adjudication. The Court opined that a fact finder could determine that Claimant’s condition did not change materially since the first decision or alternatively could determine that Claimant’s condition had changed and returned to a baseline relating solely to the pre-existing arthritis present in both knees. Because the second WCJ lacked the benefit of the Lewis determination, he made no such finding. Therefore, the Court remanded the case to the Board with instructions to remand to the second WCJ for reconsideration of the existing record in light of Lewis. The Court explained in light of Lewis it is abundantly clear that a further factual finding is required. The Court vacated the Judge’s Decision and remanded the matter back to the Board.