In Baumann v. WCAB (Kellogg Company), No. 2603 C.D. 2015, the claimant petitioned for review of the Workers' Compensation Appeal Board's (WCAB) order affirming the WCJ's decision on remand granting the employer's termination petition and granting the claimant's petition for penalties, but awarding a 0% penalty.  The Commonwealth Court affirmed the WCAB.

On May 5, 2007, the claimant sustained a work-related right shoulder and upper back strain.  The employer issued a Notice of Compensation Payable.  The injury was later amended to include a right C-6 radiculopathy.  The employer filed a petition to terminate the claimant's benefits based upon the January 7, 2009 independent medical evaluation (IME) performed by Dr. Richard Bennett.  WCJ Doman denied the termination petition.  The claimant filed a penalty petition alleging that the employer violated the Workers' Compensation Act (Act) when it advised the surgeon that the employer would not pay for the claimant's right shoulder surgery, resulting in a cancellation of the surgery.

On May 4, 2010, the claimant underwent a second IME with Dr. Bennett.  In 2010, the employer filed a petition to terminate the claimant's benefits based upon the second IME (2010 IME).  Hearings were conducted before WCJ Tina Rago.  The employer presented the deposition testimony of Dr. Bennett, who testified that, as part of the 2010 IME, he reviewed records of treatment subsequent to his previous IME.  The claimant testified he had not treated with a neurologist since the beginning of 2009, but also testified that his pain worsened, particularly since the beginning of 2009.  In 2010, the claimant visited a friend in California and got a tattoo on his wrist.  Within a year after his work accident, the claimant also got a tattoo on his right arm, which required seven one-hour sessions.

In her December 13, 2011 decision, WCJ Rago found the claimant not credible because he had not treated since December 2009, his activities included playing guitar and video games, and he got a tattoo on his seemingly affected right arm.  WCJ Rago found Dr. Bennett credible and granted the 2010 termination petition.  WCJ Rago also granted the claimant's penalty petition because the employer violated the Act by failing to pay for the claimant's shoulder surgery, but imposed a 0% penalty.  The claimant appealed.  The WCAB remanded WCJ Rago to determine whether the employer met its burden of proof that the claimant's medical condition had changed since the 2009 termination petition and render findings why WCJ Rago imposed a 0% penalty.

On December 10, 2014, WCJ Rago issued a decision after the remand.  WCJ Rago again granted the 2010 termination petition and the claimant's penalty petition, awarding a 0% penalty.  The claimant appealed to the WCAB, which affirmed.  The claimant appealed to the Commonwealth Court.

The claimant again argued that the WCAB erred by affirming WCJ Rago's decision granting the termination petition because the employer failed to prove that the claimant's medical condition had changed since the 2009 termination petition.  The Commonwealth Court stated that "it is necessary that, where there have been prior petitions to … terminate benefits, the employer must demonstrate a change in physical condition since the last disability determination," citing Lewis v. WCAB (Giles & Ransome, Inc.), 919 A.2d 922, 926 (Pa. 2007).  The court further stated that the "Employer's case [must] begin with the adjudicated facts found by the WCJ in his previous termination petition [denial] and work forward in time to show the required change."  Baumann citing Folmer v. WCAB (Swift Transp.), 958 A.2d 1137, 11143-44 (Pa. Cmwlth. 2008).

"By accepting the employer's medical evidence of full recovery as credible, a WCJ could properly make a finding that the employer has met the standard set forth in Lewis of a change in Claimant's condition."  Baumann citing Delaware County v. WCAB (Browne), 964 A.2d 29, 35 (Pa. Cmwlth. 2008). While the WCJ's findings cannot be based solely on evidence that pre-dates the previous adjudication, it may be based upon a review of such evidence plus a post-adjudication examination. Baumann at 11. The employer need not "demonstrate that Claimant's diagnoses have changed since the last proceeding, but only that his symptoms have improved to the point where he is capable of gainful employment." Baumann citing Simmons v. WCAB (Powertrack Int'l), 96 A.3d 1143, 1149 (Pa. Cmwlth. 2014).  Furthermore, a change sufficient to meet the Lewis requirement exists if there is a lack of objective findings to support the claimant's continuing complaints.  WCJ Rago found that the employer had met this burden due to the claimant's testimony regarding his activities in relation to his shoulder pain and the fact that he obtained multiple tattoos on the injured arm; the claimant's lack of medical treatment since December 2009; and, by the time of the 2010 IME, the claimant had undergone additional diagnostic studies.  WCJ Rago found that the employer met its burden of proving a change in the claimant's physical condition since the 2009 termination petition.

The court stated that the fact that Dr. Bennett rendered the same opinion after the 2009 IME did not nullify the 2010 IME because WCJ Rago's finding was based upon Dr. Bennett's credible medical opinion and the claimant's testimony of his own activities since the denial of the 2009 termination petition.  The WCJ also set forth her reasoning for the 0% penalty, again relying on the fact that the claimant obtained tattoos to the injured arm and that the claimant had not treated since December 2009 for the work injury.  The court found that WCJ Rago sufficiently explained her reasoning for not awarding benefits.

What It Means to You

It is incumbent upon an employer to ensure that there is sufficient updated evidence to support a filing of a subsequent termination petition for the same work injuries.  In the initial action, when the first termination petition was denied, the claimant was still actively treating.  Factors to look at when filing a subsequent termination petition include the claimant's treatment history since the prior termination petition, whether current diagnostic testing showed any changes, and the claimant's activities.