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November 21, 2017

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Second Termination Petition

Under the Supreme Court case of Lewis v. WCAB (Giles & Ransome, Inc.) 919 A.2d 922 (Pa. 2007) the Supreme Court held that an employer, when pursuing a second (or third) termination has a heightened burden of proof beyond the burden of merely showing a full recovery.  In addition to that, the employer must show a change in the physical condition since the date of the preceding independent medical examination.  Under the case of Folmer v. WCAB (Swift Transportation) 958 A.2d 1137 (Pa. Cmnwlth 2008) the Commonwealth Court held that a finding that the claimant was pain free in a second termination proceeding as opposed to suffering pain in the first termination proceeding was sufficient to meet the burden of change in physical condition required by the Lewis case. 

This additional proof requirement in repeat termination situations is important to remember when scheduling a independent medical examination in anticipation of a second Termination Petition.  It is important to highlight this issue to the IME doctors so it is properly addressed in the IME report.  Otherwise, if the issue is discussed by the IME doctor for the first time in the trial deposition your counsel risks the chance that claimant’s attorney will object and possibly have an objection sustained as the testimony is beyond the doctor’s report. 

Contact our offices for more information. 

The articles posted at this site have been written by William H. Lynch, Jr., Esquire.  They are for informational purposes only and do not constitute legal advice or suggestions.  Any copying, reproduction, or use of this article, in whole or in part, without the written express permission of the Law Offices of William H. Lynch, Jr. is strictly prohibited.  For a specific legal question or case referral, kindly call or email Bill

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