I Have Been Served with a Termination, Suspension and/or Modification Petition in my Pennsylvania Workers’ Compensation Case. What’s Next?
Help! My employer has filed Termination, Suspension and Modification Petitions against me. Now what?
There are several ways your benefits can be stopped by the insurance company. Your benefits can be modified (reduced) or suspended (stopped but allowing ongoing treatment) or terminated. Often, an insurance company will file all three! A favorite tactic of insurance companies to stop both your weekly benefits and your right to ongoing medical care is to have you examined by an “independent medical examiner”. This is usually a 5-10 minute “exam” by a doctor that is paid by the insurance company to examine you and issue a report regarding the status of your work injury. Because these doctors are paid by the insurance company, many times it is difficult for them to be “independent”. These doctors will often find that you are “fully recovered” from your work injury. If this occurs, the Employer will file what’s called a “termination petition.”
If a Termination Petition is filed, under Pennsylvania Workers’ Compensation case law the burden never shifts to the employee in a termination petition to prove the existence of an ongoing causal connection between the work injury and ongoing disability. You as a Claimant, do not even have to present medical evidence although this is not advisable. The burden of a termination petition remains always with the Defendant to prove that all disability has ceased. This burden has always been found to be very high because your ongoing disability is presumed to continue until demonstrated to the contrary. The Employer can prove the termination by showing 1) that there is an independent superseding cause for the disability that arose after the work injury was recognized; 2) it can state that all injuries now are due to pre-existing degenerative arthritis; 3) or they can state that your physical injuries have resolved.
This does leave you with the opportunity to file a review petition to add injuries which are related to your work injury but not formally recognized by the insurance company. This commonly occurs where depression is linked to the work injury. In this situation, however, the Claimant would bear the burden of showing that the additional injuries are in fact related to the work injury. If the Defendant proves that the physical injuries are resolved, they do not have to necessarily prove that the additional injuries are resolved as well. It is wise to have an attorney file all possible claims with proof as soon as you are able to obtain proof that the additional problems are in fact related to your accepted physical injuries.
A Suspension Petition, is a level below the Termination Petition since it does not find that you have fully recovered from your work injury. To the contrary, there is a presumption that your disability continues and therefore, your medical treatment should continue. In this scenario, the insurance company will argue that your weekly checks should stop.
Your benefits can be suspended for any of the following reasons although this list is not exhaustive:
- Returning to work at wages greater than or equal to your pre-injury wage;
- Failing to return Bureau documents, LIBC 750, LIBC 756 or LIBC 760 forms. These forms are to be completed anytime money is earned from whatever source or that your condition has worsened or that you have become employed elsewhere.
- Failing to challenge an employer’s notice of suspension when you have not returned to work at the same average weekly wage. Often times, as soon as the injured worker returns to work, the employer issues an LIBC 413 Notice of Suspension Document stating that the injured worker has again earned his or her “average weekly wage”. The only problem is the insurance company never waits to see if you can work a week or if you earned your pre-injury wages. YOU SHOULD ALWAYS CHALLENGE THIS AND SPEAK WITH AN ATTORNEY ABOUT THIS FORM!.
- Refusal to provide financial records;
- Refusal of medical treatment. This is generally not favored by Judges. The burden of proof is on the Defendant insurance company to show that the injured worker refused “reasonable medical services.” This term is often litigated as to what constitutes “reasonable medical services.” This litigation often involves surgery. As the saying goes, it is only minor surgery when it happens to someone else. It is strongly advised to retain counsel on this issue.
- Incarceration after conviction. Interestingly, nowhere in the Workers’ Compensation Act is the term “incarceration” defined. If you are convicted and incarcerated, no petitions need be filed. The suspension is self-executing.
- Voluntary withdraw from the labor market. This is the classic case where the injured worker states, “I am retired and have no intention of looking for work.” No matter how badly you want to say this, DON’T. If you are forced into retirement because of your injury, you would have to have some proof of the same. This can be a complicated area of the law and it is recommended that the advice of a legal professional should be procured.
- Refusal to comply with an Order for an Exam or Interview.
- Failing to apply for a job within restrictions of either your doctor or the independent medical examiner. This is called vocational placement. It is hated by all. In this situation, no “real job” need even exist. This is yet another instance where counsel is a must. This often involves interaction with someone hired by the insurance company known as a vocational counselor. Once you get this “offer of assistance in obtaining employment,” run to a lawyer’s office. This involves interviews, past work history and the dreaded “Labor Market Survey” comprised of make believe jobs. This can also be used to modify your benefits.
Finally, we have the last level of benefit affecting petitions, the Modification Petition. Like the Suspension petition, the Modification allows ongoing treatment for the accepted injury but reduces the amount of weekly compensation. Your benefits can be modified by Notice, section 413, indicating that you have returned to work at a lesser wage; by agreement, also known as a Supplemental agreement or by litigation.
If the insurance company files a Modification Petition, they have to allege that your condition or disability has changed, work is available to you within your now changed physical condition and that you are capable of doing that work. The Modification Petition can allege many of the same arguments set forth in the Suspension of benefits Petition. It can be particularly tricky when there is an aggravation of pre-existing non work related condition per the Supreme Court’s decisions in Lash, Farquhar and Bethlehem Steel cases.
If you have been served with a Termination, Suspension or Modification Petition it may be time to contact an experienced Pennsylvania Workers’ Compensation Attorney.