Employers may file second Petition for Termination in certain Cases

In 2007 the Pennsylvania Supreme Court held that an employer, having once been denied a termination request, must in the second or other successive termination petition show that the claimant’s physical condition had changed since the prior denial. Lewis v. WCAB (Giles & Ransome, Inc.).

In a new case decided by the Commonwealth Court in 2008, the impact of that case has been limited where the employer is able to convince the Workers’ Compensation Judge (WCJ) that claimant no longer has subjective complaints of pain. Folmer v. WCAB (Swift Transportation). In this case, the original termination petition was denied because the WCJ believed that claimant still had subjective complaints of pain.

In the second termination petition, the Judge found that claimant was a malingerer and discredited claimant’s testimony regarding his subjective complaints.

The Supreme Court reasoned in its analysis that “this case boils down to the WCJ’s credibility determinations…In the first termination proceeding, claimant was found to be suffering pain, and in a second proceeding he was found to be free of pain. This contitutes a change in physical condition, as required by Lewis.”