Did Rehash of Termination Petition Require Employer to Pay Claimant’s Legal Fees?

Employers that hope to terminate an individual’s workers’ compensation benefits based on the employee’s voluntary withdrawal from the workforce need to think carefully before taking that step. Filing a petition to stop benefits could end up saddling the employer with even more financial burden, as a Pennsylvania case demonstrates.

In 1989, the claimant injured herself when she slipped on the airport passenger shuttle she drove for the company. As a result, she underwent surgeries and had her knee replaced.

In 2007, the employer sought to suspend her $161 in weekly benefits on the basis that the claimant had voluntarily removed herself from the workforce. The claimant successfully rebuffed that attempt by pointing out that she: 1) had not accepted a retirement pension; 2) was not collecting social security; 3) had applied for jobs which she did not get, 4) had a high school education with no additional training, such as training in computer or secretarial work; and 5) had not refused suitable work.

In 2015, the employer filed a second petition to terminate on the same basis. It pointed to a recent independent medical examination which showed the claimant’s condition had slightly changed since 2007 and that she continued to have pain that restricted her to light duty work. The doctor also found that she now had non-work-related health conditions, including diabetes and obesity, which limited her to sedentary work.

The WCJ again denied the petition but refused the claimant’s request to order the employer to pay her legal fees. The claimant challenged that decision in court.

The court explained that the workers’ compensation act affords a claimant the ability to receive a reasonable sum for attorney fees when an employer pursues an unreasonable contest against her. 

Was the claimant entitled to attorney’s fees?

A. No. Some of the claimant’s circumstances relevant to the injury and her ability work had changed.

B. Yes. The employer had already litigated the same issue. It was not reasonable to repeat those efforts.

If you selected A, you agreed with the court in Ogden Corp. v. Workers' Compensation Appeal Board, Nos. 200 C.D. 2019, 201 C.D. 2019 (Pa. Commw. Ct. 02/04/25), which affirmed the WCJ’s denial of attorney’s fees.

The court conceded that the employer filed a similar suspension petition in 2007 on the same basis–that the claimant had retired or removed herself from the workforce. Nevertheless, it affirmed the WCJ’s finding that the contest was reasonable. 

The court noted that the employer had obtained an updated independent medical examination which showed a change in the claimant's condition since the last litigation. 

“The WCJ further found that, given the lapse of time since Employer's last petition, Claimant's age, and the combination of her work-related and non-work-related medical conditions, Employer's contest under the circumstances was reasonable,” the court wrote. 

The court affirmed the WCJ's decision.

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