Friday, July 18, 2008

Commonwealth Court Remands in Serial Termination Case

In M. Prebish v. WCAB (DPW/Western Center) the Commonwealth Court accepted the Claimant's argument that the Employer must show a change of condition to prevail in a serial termination petition.

The Employer's expert opined the Claimant's injured right knee was not different than the left knee with findings of preexisting arthritis. In the prior decision, the WCJ found the Claimant's symptoms were primarily right sided. The Employer's expert also had the benefit of a new diagnostic study and additional medical records. The Employer's expert ultimately concluded the Claimant was fully recovered from a strain that occurred at the time of the injury.

The Court nevertheless stated the WCJ could make a finding the Claimant's condition did not change materially since the first WCJ's decision based on the record. The Court stated it is "abundantly clear" a finding that the Claimant's condition changed is required, citing Lewis v. Workers’ Compensation Appeal Board (Giles & Ransome, Inc.), 591 Pa. 490, 919 A.2d 922 (2007). The matter was remanded to the WCJ to make a determination on the existing record.

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